GERMANY Trends and Developments Contributed by: Tanja Pfitzner and Fabian von Schlabrendorff, Pfitzner Legal
Germany offers a modern and well-established legal framework for international arbitration, based on the UNCITRAL Model Law and codified in the Ger - man Code of Civil Procedure (ZPO), and an efficient, arbitration-friendly and predictable court system. The dynamic German arbitration community provides a wealth of expertise for both counsel and arbitrators. At the heart of this community lies the German Arbi - tration Institute (DIS), which, with its approximately 1,500 members, serves as the leading institution for the administration of arbitration proceedings in Ger - many. Arbitration proceedings in Germany are also frequently conducted under other arbitration rules, such as those of the International Chamber of Com - merce, and internationally recognised guidelines such as those of the International Bar Association or the Prague Rules (2018). The past year has seen a significant number of court decisions and other noteworthy developments in the field of arbitration. Economic Sanctions, Anti-Suit Injunctions and the Alternative Approach of the German Courts The current global climate – market by armed conflicts, crises and human rights violations – has triggered the imposition of numerous international economic sanctions. While these sanctions are not directly tar - geted at arbitration proceedings, they increasingly affect access to arbitration, its administration and the enforcement of arbitral awards. In recent years, courts around the world dealt with the Russian judiciary’s anti-arbitration stance in cases involving sanctioned Russian entities. Under Articles 248.1 and 248.2 of the Russian Arbitrazh Procedure Code, introduced in 2020, Russian courts may assert exclusive jurisdiction over disputes involving sanc - tioned parties if the sanctions are deemed to hinder access to justice in the designated forum. Article 248.2 also empowers Russian courts to issue anti- suit and anti-arbitration injunctions, prohibiting foreign partners from pursuing claims outside Russia. These injunctions are backed by severe monetary penalties. In 2024, Russian courts relied on Article 248 in over 200 cases to assert exclusive jurisdiction or issue anti- arbitration injunctions.
Common law jurisdictions typically respond with anti- suit and anti-anti-suit injunctions, aiming to restrain a party from initiating or continuing foreign proceedings in breach of an arbitration agreement and compel the discontinuation of such proceedings. German courts, like most civil law jurisdictions, gener - ally refrain from issuing enforceable anti-suit injunc - tions in support of arbitration due to comity consid - erations. A recent decision of the Düsseldorf Higher Regional Court (I-26 W 7/24) illustrates this approach. In that case, the Court rejected an application for an anti-anti-suit injunction brought against a sanctioned Russian entity that had obtained an anti-arbitration injunction from a Russian court, notwithstanding the existence of a valid arbitration agreement. The Court held that German courts lack the authority to issue worldwide cease-and-desist orders protecting arbitral proceedings or potential enforcement meas - ures against foreign assets. Such matters, the Court reasoned, fall within the sovereign jurisdiction of the respective foreign state and therefore lie beyond the reach of the German judicial authority. However, this does not mean that German courts do not support the enforcement of an effective arbitra - tion agreement. The German arbitration law offers a unique alternative remedy in the form of a declaratory anti-suit relief. Section 1032 (2) ZPO allows parties pri - or to the constitution of the arbitral tribunal to obtain a declaratory court decision that arbitration is the exclu - sive dispute resolution forum, thereby excluding the jurisdiction of state courts. This approach has been exemplified in two recent decisions by the Berlin Higher Regional Court. In cases 12 SchH 5/22 and 12 SchH 2/24, the Court granted declaratory anti-suit relief in support of an Austria-seated, German law-governed arbitration, and a Switzerland-seated, Swiss law-governed arbitration, respectively. In both instances, the Court affirmed that arbitration was the sole proper forum, excluding juris - diction of the Russian courts. As to its jurisdiction, the Court based its competence on Sections 1062 (2) and 1025 (2) ZPO, finding that a minimal territorial nexus – such as the applicant’s status as a German entity and the risk of enforcement
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