GERMANY Law and Practice Contributed by: Patricia Nacimiento, Catrice Gayer, Lara Panosch and Theo Pauthonier, Herbert Smith Freehills Kramer LLP
rately, depending on the legal basis for the obliga - tion. Recently, however, the Federal Court of Justice (9 March 2023, I ZB 33/22) confirmed that under Ger - man law, the personal scope of an arbitration agree - ment is generally limited to the contracting parties and their legal successors. An extension of the arbitra - tion agreement to non-parties based on the “group of companies doctrine” does not form part of German arbitration law. Additionally, no distinction is made based on whether the third party is German or foreign. German arbitration law empowers arbitral tribunals to grant interim measures (Section 1041 ZPO). However, the parties may agree to exclude the arbitral tribunal’s authority to do so (Section 1041 (1) ZPO). Arbitral tribunals enjoy broad discretion in determining the nature and scope of interim relief (eg, attachment, preliminary injunctions), but they lack enforcement powers and cannot compel compliance on their own. To ensure enforceability, judicial assistance is required (Section 1041 (2) ZPO). When called upon to enforce such measures, German courts do not reassess the underlying merits of the case, in line with the prohibi - tion of judicial review on the merits ( révision au fond ). The validity of ex parte interim measures ordered by the arbitral tribunal remains controversial, but accord - ing to the prevailing view, they should be permissible under the same conditions that apply to state courts, including the obligation to grant a subsequent right to be heard to the affected party. 6.2 Role of Courts German courts are authorised to issue interim meas - ures both before and during arbitral proceedings, including in cases where the arbitration is seated outside Germany, provided that the court has inter - national jurisdiction (Sections 1033 and 1025 (2) ZPO). Such relief may be granted ex parte and, depend - ing on the urgency and circumstances, can be issued within 24 hours. 6. Preliminary and Interim Relief 6.1 Types of Relief
Typical forms of interim protection include pre-award attachments to secure monetary claims, preliminary injunctions to preserve rights or prevent harm, and orders aimed at safeguarding or securing evidence. Where a party successfully demonstrates that the interim measure was unjustified from the outset, the applicant may be held liable for damages resulting from its enforcement (Sections 945 and 1041 (4) ZPO). German arbitration law does not forbid the use of emergency arbitrators, and decisions of emergency arbitrators will be considered like any other form of interim relief under Section 1041 ZPO. Accordingly, where interim relief is sought in Germany based on a decision rendered by an emergency arbitrator in an arbitration with a foreign seat, deviation from the requirements of Section 1041 ZPO, and, for ex parte relief, the lack of subsequent hearing of the affected party, may pose a problem with the enforcement of the measures by German courts (see also 6.1 Types of Relief ). As emergency arbitrators are not treated differently from the remaining forms of interim relief under Sec - tion 1041 ZPO, courts may still intervene once an emergency arbitrator has been appointed. 6.3 Security for Costs German arbitration law does not expressly regulate the issue of security for costs. Consequently, if a party applies for such a security, the arbitral tribunal would have the power to grant it, to the extent allowed by the applicable arbitration rules. Section 110 (1) of the Code of Civil Procedure, which requires claimants domiciled outside the European Union or European Economic Area to furnish secu - rity for costs upon request in state-court litigation, extends to proceedings seeking the recognition and enforcement of arbitral awards. The Federal Court of Justice (12 January 2023, I ZB 33/22) has given up its previous position and established that Section 110 (1) ZPO applies by analogy to such proceedings.
386 CHAMBERS.COM
Powered by FlippingBook