GERMANY Law and Practice Contributed by: Daniel Engel, Antonia Hösch, Mathäus Mogendorf and Viola Sailer-Coceani, Hengeler Mueller
rules based on the closest connection or by apply- ing the most protective standard across all parties. Privilege may be waived through voluntary disclosure or consent. 8.3 Confidentiality Confidentiality is not a general defence in German state court litigation. However, courts may restrict access to protect trade secrets or commercially sen- sitive information, including under the Trade Secrets Act ( Gesetz zum Schutz von Geschäftsgeheimnissen , GeschGehG). Arbitral tribunals may limit or refuse dis- closure of evidence on confidentiality grounds, often taking guidance from the IBA Rules on the Taking of Evidence. Confidentiality is not absolute in either sys- tem and may yield where disclosure is required by law, necessary to protect legal rights, or warranted by considerations of procedural fairness. 8.4 Witness Evidence In state court proceedings, witnesses have a duty to appear and testify truthfully (Sections 380, 390 Ger- man Code of Civil Procedure), with false testimony criminally punishable under Section 153 German Criminal Code ( Strafgesetzbuch , StGB). Parties and their legal representatives cannot be called as wit- nesses but may be examined as parties under Sec- tions 445 et seq. German Code of Civil Procedure. Examination is conducted primarily by the court, with supplementary questioning by the parties. There is typically no full-fledged cross-examination. In arbitra- tion, witness evidence is usually introduced through written witness statements, with subsequent cross- examination to test that evidence. There is no general duty of witnesses to appear or testify in arbitration, but an arbitral tribunal may apply to the state court to summon unwilling witnesses and administer the wit- ness testimony. 8.5 Expert Evidence Expert evidence is widely used in both state court proceedings and arbitration. In state court litigation, experts are appointed by the court under Sections 402 et seq. German Code of Civil Procedure – based on party applications or ex officio – and owe duties of independence, impartiality and comprehensive investigation to the court; party-appointed experts are treated as party submissions rather than evidence
proper. In arbitration, experts may be appointed by the parties or by the tribunal. Tribunal-appointed experts are subject to the same independence and impartial- ity requirements as arbitrators (Section 1049 (3) Ger- man Code of Civil Procedure), while any perceived lack of independence of a party-appointed expert affects evidentiary weight rather than admissibility. Both systems allow parties to test expert evidence through questioning at hearings.
9. Enforcement 9.1 Enforcement of Judgments
In Germany, the enforcement procedure relevant to foreign judgments depends on their state of origin. Pursuant to Regulation (EU) No 1215/2012 (“Brus- sels Ia Regulation”), judgments from other EU mem- ber states bound by the Brussels Ia Regulation are generally recognised and immediately enforceable, provided they are enforceable in their state of origin. Other bilateral/multilateral treaties (eg, the Lugano Convention, applicable to judgments from EFTA states), and the autonomous German civil procedure law still require an exequatur procedure, which serves to have the foreign judgment declared enforceable. A separate recognition procedure does not apply; how- ever, under the German Code of Civil Procedure, the statutory grounds for refusal of recognition shall be considered in the context of the exequatur procedure. 9.2 Enforcement of Arbitral Awards Domestic and foreign arbitral awards must be declared enforceable by a German court in exequatur proceed- ings. Once the declaration of enforceability has been granted, the award constitutes an enforceable title and may be enforced under the general rules on com- pulsory enforcement. The competence to declare domestic arbitral awards enforceable lies with the higher regional court ( Ober- landesgericht ) at the seat of arbitration. In these proceedings, the grounds for setting aside of arbi- tral awards (Section 1059 para. 2 German Code of Civil Procedure) constitute the relevant standard of review, and German courts are generally prohibited from reviewing the merits of the award ( no révision au fond ). Certain procedural grounds are subject to a
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