GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
8.3 Enforcement of Settlement Agreements A settlement recorded by the court is an execution title and can be enforced in the same way as a final judgment. An out-of-court settlement is not enforce- able per se. A party claiming a breach of an out-of- court settlement usually must file a new civil action to enforce the settlement agreement. Out-of-court settlements may be enforceable if they are notarised by a notary public or signed by the parties’ attorneys on the condition that the debtor expressly submits to immediate enforcement, and if they are filed with the local court where one of the parties is domiciled. 8.4 Setting Aside Settlement Agreements A settlement recorded by the court is an execution title and can be enforced in the same way as a final judgment. An out-of-court settlement is not enforce- able per se. A party claiming a breach of an out-of- court settlement usually must file a new civil action to enforce the settlement agreement. Out-of-court settlements may be enforceable if they are notarised by a notary public or signed by the parties’ attorneys on the condition that the debtor expressly submits to immediate enforcement, and if they are filed with the local court where one of the parties is domiciled. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant German procedural law provides for three main cat- egories of judgments: • judgments for affirmative relief – eg, performance, payment, omission or compensation; • declaratory judgments in which the court confirms if a specific legal relationship exists or not under the condition that the plaintiff can show a certain interest as regards the declaration; and • judgments directly altering a legal relationship – eg, the exclusion of a shareholder. 9.2 Rules Regarding Damages With a few exceptions, courts only award damages to the extent expressly claimed and quantified by the plaintiff (ne ultra petita).
While the principle of public proceedings allows the public to be physically present at hearings, it does not extend to photographs, recordings or public transmis- sions from the courtroom. 7.7 Level of Intervention by a Judge The judge plays an active role in German civil pro- ceedings. The judge leads through the proceedings, gives indications and directs the taking of evidence. Judges will ask the parties, their attorneys, witnesses or experts questions at any time during the hearing. It is normal for a judge to give a preliminary opinion on the factual and legal issues of the dispute right at the beginning of a hearing, which often leads to a settle- ment between the parties. 7.8 General Timeframes for Proceedings The judge plays an active role in German civil pro- ceedings. The judge leads through the proceedings, gives indications and directs the taking of evidence. Judges will ask the parties, their attorneys, witnesses or experts questions at any time during the hearing. It is normal for a judge to give a preliminary opinion on the factual and legal issues of the dispute right at the beginning of a hearing, which often leads to a settle- ment between the parties. Civil proceedings often end with a settlement between the parties. Generally, court approval is not required to settle a lawsuit. Exceptions apply – eg, to settle- ments in collective actions where the approval of the court is required. 8.2 Settlement of Lawsuits and Confidentiality A settlement under German law has the legal nature of a contract between the parties to the settlement, even if it is recorded by the court. Therefore, settlements can be kept confidential if the parties so agree. How- ever, settlements recorded by the court may become public because of the principle that hearings are gen- erally public. If the parties wish to ensure confidential- ity, it is advisable to negotiate the settlement out of court and include a confidentiality clause. 8. Settlement 8.1 Court Approval
368 CHAMBERS.COM
Powered by FlippingBook