GERMANY Law and Practice Contributed by: Patricia Nacimiento, Catrice Gayer, Lara Panosch and Theo Pauthonier, Herbert Smith Freehills Kramer LLP
also set out in Section 27.4 (i) and annex 3 to the DIS Arbitration Rules. Under this provision, arbitral tribunals are obliged to address various measures to increase the procedural efficiency of the proceedings during the case management conference; one of them is to address whether document production shall take place at all. Privilege – as known, eg, in England with litigation privilege – only exists in a very limited way. The rea - son is simple: as document production/disclosure is not part of German domestic court proceedings, no specific rules on privilege (except for attorney-client privilege) exist. However, arbitral tribunals with their seat in Germany are fully aware of the different rules on privilege existing in different jurisdictions and will adopt tailored solutions (eg, applying the strictest standard for all parties involved). Witnesses play a significant role, though documen - tary evidence remains central, reflecting domestic litigation practice. In international proceedings, writ - ten witness statements are commonly used. Cross- examination is standard in international arbitrations; however, if German parties or civil law traditions are involved, arbitral tribunals often lead the examination, followed by counsel. Parties may appoint their own experts, and arbitral tri - bunals may appoint independent experts under Sec - tion 1049 ZPO. The arbitral tribunal is responsible for ensuring the impartiality and independence of arbitral tribunal-appointed experts (Sections 1036 and 1049 (3) ZPO). 8.2 Rules of Evidence German arbitration law does not prescribe a fixed set of evidentiary rules for arbitral proceedings. Subject to mandatory provisions – such as the right to be heard, equal treatment of the parties, and the right to legal representation – parties are free to agree on the evi - dentiary framework, including the adoption of institu - tional rules or bespoke procedures (see above, inter alia, 8.1 Collection and Submission of Evidence ). In the absence of such agreement, arbitral tribunals have broad discretion to determine the rules of evi - dence, pursuant to Section 1042 (4) ZPO. The eviden -
tiary approach typically reflects the legal and cultural backgrounds of the parties and arbitrators, the nature of the dispute, and procedural expectations. 8.3 Powers of Compulsion Arbitral tribunals seated in Germany do not possess coercive powers and therefore cannot compel the attendance of witnesses or experts, administer oaths or order third parties to produce documents. However, they may seek the assistance of state courts to carry out such judicial acts pursuant to Section 1050 ZPO. German arbitration law does not expressly regulate the confidentiality of arbitral proceedings. Nonethe - less, the Federal Court of Justice has held that arbitra - tors are bound by a duty of confidentiality arising from their contractual relationship with the parties, unless otherwise agreed. The position regarding the parties themselves is less clear. In the absence of an explicit confidentiality clause in the arbitration agreement or the underlying contract, it remains unsettled whether a duty of con - fidentiality can be implied. As a result, it is common practice for parties and arbitral tribunals to conclude a separate confidentiality agreement at the outset of the proceedings – often incorporated into the terms of reference in institutional arbitrations. Such agree - ments typically extend to pleadings, expert reports and witness statements. 9. Confidentiality 9.1 Extent of Confidentiality The DIS Arbitration Rules impose an express duty of confidentiality on parties, counsel and arbitrators (Section 44.1 DIS Arbitration Rules). However, this obligation does not automatically extend to third par - ties such as experts, witnesses or court reporters, necessitating separate confidentiality undertakings. As German law does not codify confidentiality obli - gations, it also does not provide for statutory excep - tions. The DIS Arbitration Rules, however, recognise that disclosure may be permitted where required by law, to comply with legal obligations, or in connection with recognition, enforcement or annulment proceed -
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