GERMANY Law and Practice Contributed by: Daniel Engel, Antonia Hösch, Mathäus Mogendorf and Viola Sailer-Coceani, Hengeler Mueller
allowed for. The DIS Expedited Proceedings, which can be adopted by the parties by way of reference, offer the option of a faster resolution. In such proceed- ings, the final award should, in principle, be rendered within six months from the case management confer- ence. 3.7 Regulation of Arbitration German arbitration law is codified in the German Code of Civil Procedure and largely based on the UNCI- TRAL Model Law. German arbitration law is mostly non-mandatory, allowing parties to opt for, eg, insti- tutional rules. Recognition and enforcement of foreign awards in Germany are governed by the New York Convention. Alongside its institutional arbitration rules, the DIS offers Supplementary Rules for Corporate Disputes and the involvement of third parties. 3.8 Court Powers Within certain limits, German courts can review compliance with arbitration agreements and provide judicial assistance to arbitral tribunals. This includes rulings on the admissibility of arbitral proceedings, interim relief, enforcement of a tribunal’s interim meas- ures, and assistance in the taking of evidence. 3.9 Court Intervention Bound by German arbitration law’s hands-off doctrine, German courts may intervene only where expressly authorised, eg, to assist the tribunal or grant inter- im relief (see 3.8 Court Powers ). This is mirrored by recognition practice: foreign anti-arbitration injunc- tions or motions to stay may remain without effect on German-seated arbitration proceedings. Limited court intervention is supplemented by – albeit also limited – post-award review, inter alia, to protect due process and other public policy interests. However, German courts are authorised to rule on the validity of arbitration agreements, even where the seat of the arbitration is abroad or has not yet been determined. 3.10 Relief Arbitral tribunals seated in Germany may generally grant all types of relief that the parties could obtain from a court, including declaratory and interim relief. A key limitation is that enforcement requires state
court involvement, potentially causing delays. Note that an arbitration clause does not prevent German state courts – where they have international jurisdic- tion – from granting interim relief, even where the seat of the arbitration is located abroad.
4. Other ADR Methods 4.1 ADR Procedures
Other formal ADR procedures available in Germany include expert determination, conciliation and media- tion. These ADR procedures have only partially been reflected in statutory law. The initiation and conduct of the proceedings remain largely subject to party autonomy. The proceedings will often be conducted ad hoc but may also be administered under the rules of a (private) institution, such as the DIS or the Cham- ber of Commerce and Industry. A notable exception to the generally private nature of such other ADR proce- dures in the German judicial system is court-annexed mediation or conciliation proceedings ( Güterichterver- fahren ). A Güterichterverfahren is a procedure in which a specially designated judge, who is not responsible for deciding the case in litigation, facilitates a settle- ment between the parties. 4.2 Requirements to Engage in ADR In principle, parties may initiate litigation over com- mercial disputes without first engaging in ADR pro- ceedings. Thus, to engage in any ADR proceeding, an agreement between the parties is required. Unless otherwise agreed between the parties, no other formal requirements apply. However, institutional rules typi- cally provide for a notice or written request to initiate ADR proceedings. 4.3 Impact of ADR Where parties agree to pursue ADR prior to litigation or arbitration (eg, by way of an escalation clause), this is regarded as a temporary waiver of the right to sue. Such a waiver must be invoked by the defend- ant; courts will not assess ex officio whether an ADR agreement exists. If the requirements of the relevant clause have not been satisfied, the court will dismiss the claim as temporarily inadmissible. A negotiation or mediation clause does not, however, bar a party from seeking interim relief before a court. An unsuccessful
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