GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
the trial judge may refer the parties to a conciliation judge appointed for this purpose; however, if the par- ties do not give their consent, the conciliation hear- ing is conducted before the trial judge as part of the
divorce or the custody of minors, and disputes regard- ing tenancy relationships for residential accommoda- tion in Germany. 13.3 Circumstances to Challenge an Arbitral Award An arbitral award generally has the same final effect as a court judgment (res judicata). It can only be chal- lenged under certain circumstances, which resemble Article V of the New York Convention and Article 34 of the UNCITRAL Model Law. These grounds for chal- lenge are: • a party’s incapacity to conclude an arbitration agreement; • the invalidity of arbitration agreement; • a violation of the right to be heard; • the subject matter is beyond the scope of the arbi- tration agreement; • a failure in the composition of the arbitral tribunal; • the subject matter is not arbitrable (see 13.2 Sub- ject Matters Not Referred to Arbitration ); and • the recognition or enforcement of the award would lead to a result contrary to public policy (ordre public). The party seeking to challenge the arbitral award must file its request within a period of three months after having received the award, or within the time limit agreed by the parties. The court deciding on the chal- lenge of the arbitral award cannot modify the award but can only set it aside or dismiss the request. Under appropriate circumstances the court can remit the case to the same arbitral tribunal for a new decision. 13.4 Procedure for Enforcing Domestic and Foreign Arbitration Domestic arbitral awards can be enforced under the Code of Civil Procedure upon application to the competent higher regional court. The request is not bound to any specific time limit, but to certain formal requirements. In principle the court decides upon the enforceability without an oral hearing by order. How- ever, if the opposing party challenges the award, either by raising grounds for setting aside the award or objections that came into existence after the arbitral proceedings had been closed – eg, a set-off situation, an oral hearing must be held.
normal civil proceedings. 12.3 ADR Institutions
Several German institutions promote ADR or offer a platform on which various forms of ADR can be pur- sued – eg, the European Institute for Conflict Man- agement (EUCON). The German Institution of Arbi- tration (DIS) provides for a procedural framework in its Mediation Rules and a service infrastructure for mediation procedures.
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
The German arbitration law is set out in the Tenth Book of the Code of Civil Procedure, which is mod- elled after the UNCITRAL Model Law. The arbitration law is based on the key principles of a successful arbitration – ie, party autonomy, and fair and efficient arbitral proceedings. Parties can contractually agree that any institutional or other rules may also apply to the conduct of the arbitration. The DIS offers a set of rules (DIS Rules) recognising and implementing internationally devel- oped standards. Germany is a member state to the New York Conven- tion 1958, the ICSID Convention, and other important international treaties. Especially the New York Con- vention 1958 allows for easy and efficient recognition and enforcement of foreign arbitral awards within the German legal system. 13.2 Subject Matters Not Referred to Arbitration In general, any claim involving an economic interest is arbitrable under German law, as are non-economic claims if the subject matter of the dispute can be set- tled. Only a few subject matters cannot be referred to arbitration, such as criminal law matters, employment law disputes, certain aspects of family law such as
372 CHAMBERS.COM
Powered by FlippingBook