GERMANY Law and Practice Contributed by: Patricia Nacimiento, Catrice Gayer, Lara Panosch and Theo Pauthonier, Herbert Smith Freehills Kramer LLP
• appointing arbitrators (Sections 1034 and 1035 ZPO), ruling on challenges (Section 1037) or termi - nating an arbitrator’s mandate (Section 1038 ZPO); • determining the admissibility of arbitration (Section 1032 (2) ZPO) and confirming the arbitral tribunal’s jurisdiction (Section 1040 ZPO); • issuing interim measures (Section 1033 ZPO) and providing judicial assistance for evidence-taking or other acts the arbitral tribunal cannot perform itself (Section 1050 ZPO); • enforcing, modifying or setting aside interim meas - ures issued by the arbitral tribunal (Section 1041 ZPO); and • setting aside arbitral awards (Section 1059 ZPO) or declaring them enforceable or not enforceable in Germany (Section 1060 et seq ZPO). German arbitration law is set out in Sections 1025 to 1066 ZPO. It is based on the UNCITRAL Model Law, but differs in several respects. By way of example: • Applicability of German arbitration law : German arbitration law governs both domestic and cross- border arbitration proceedings – whether com - mercial or otherwise – provided that the arbitration is seated in Germany (Section 1025 (1) ZPO). In contrast, the UNCITRAL Model Law is limited to international arbitration (Article 1). • Early determination of “ arbitrability ”: Section 1032 (2) ZPO enables parties to request a German court to decide on the admissibility of arbitration before the arbitral tribunal is constituted. This mechanism allows for an early judicial determination of jurisdic - tional issues, a feature not found in the UNCITRAL Model Law. • Interim relief by arbitral tribunals : Under Section 1041 ZPO, arbitral tribunals seated in Germany are empowered to grant interim measures. This provision mirrors Article 17 of the UNCITRAL Model Law. However, the 2006 amendments to the UNCITRAL Model Law go further by elaborating on interim measures and introducing provisions on preliminary orders (Articles 17 to 17J) which are not fully reflected in German law. 2. Governing Legislation 2.1 Governing Law
• Arbitration defence in court proceedings : Similar to Article 8 (1) of the UNCITRAL Model Law, Section 1032 (1) ZPO allows a party to invoke an arbitra - tion agreement as a defence when court proceed - ings are initiated. However, the German provision mandates that the court must declare the action inadmissible, whereas the UNCITRAL Model Law instructs courts to refer the parties to arbitra - tion. This distinction means that German courts are required to conduct a full examination of the arbitration agreement’s validity and scope, unlike courts in jurisdictions that apply only a prima facie review. • Judicial assistance : Section 1050 ZPO, inspired by Article 27 of the UNCITRAL Model Law, grants German courts the authority to assist arbitral tribunals not only in taking evidence but also in performing other judicial acts that require coercive powers. Notably, this assistance is available even when the arbitration is seated outside Germany, whereas the UNCITRAL Model Law limits such support to arbitrations seated within the jurisdic - tion. Additionally, Section 1050, third sentence ZPO – without a counterpart in the UNCITRAL Model Law – explicitly grants arbitrators the right to participate and ask questions in evidentiary pro - ceedings conducted by state courts. 2.2 Changes to National Law On 26 June 2024, the German Federal Ministry of Justice introduced a legislative proposal aimed at updating the national arbitration framework to mod - ernise procedural rules and align more closely with international standards. This initiative lapsed due to the dissolution of parliament following early elections in February 2025. On 27 January 2026, the Federal Ministry of Justice presented an updated proposal that largely mirrors the 2024 proposal, with limited adjustments. The Federal Cabinet adopted a draft bill (“Draft Bill”), paving the way for the parliamentary process. If ultimately enact - ed, it would introduce several significant changes to the existing framework, including: • modernising the formal requirements for arbitration agreements by introducing a technology-neutral standard, permitting conclusion or documentation
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