GERMANY Law and Practice Contributed by: Patricia Nacimiento, Catrice Gayer, Lara Panosch and Theo Pauthonier, Herbert Smith Freehills Kramer LLP
Arbitration Rules. Whether these requirements are fulfilled by a challenged arbitrator is assessed on a case-by-case basis. The International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration, last updated in 2024 (the “IBA Guidelines”), are widely known and used in Germany. Some courts tend to apply the standard applicable to state judges in order to assess whether facts give rise to justifiable doubts as to an arbitrator’s impartiality and independence. In this respect, courts also tend to consider the princi- ples laid down in the IBA Guidelines. Despite that, the courts do not explicitly refer to, or stress that they are not bound by, the IBA Guidelines. The DIS Arbitration Rules follow an objective approach; ie, the disclosures shall include any facts or circum- stances that could cause a reasonable person in the position of a party to have doubts as to the arbitra- tor’s impartiality and independence (Section 9.4 DIS Arbitration Rules). This disclosure obligation remains for the entire duration of the arbitration (Section 9.6 DIS Arbitration Rules). 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, 5. Preliminary and Interim Relief 5.1 Types of Relief
including the obligation to grant a subsequent right to be heard to the affected party. 5.2 Role of Domestic Courts German courts are authorised to issue interim meas- ures both before and during arbitral proceedings, including in cases where the arbitration is seated out- side Germany, provided the court has international jurisdiction (Sections 1033 and 1025 (2) ZPO). Such relief may be granted ex parte and, depending on the urgency and circumstances, can be issued within a very short time. 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 5.1 Types of Relief ). As emergency arbitrators are not treated differently than the remaining forms of interim relief under Sec- tion 1041 ZPO, courts may still intervene once an emergency arbitrator has been appointed. 5.3 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.
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