GERMANY Law and Practice Contributed by: Christian Strasser, Thomas Wambach and Yannick Greimann, HEUKING
The ZPO does not provide for any further requirements for recognition beyond those listed in that section. In particular, the foreign judgment is not subject to any further substantive review; the prohibition of révision au fond applies. Pursuant to Section 328 of the ZPO, a foreign judg - ment cannot be recognised in Germany if: • the courts of origin did not have jurisdiction when hypothetically applying the German rules of the ZPO to determine the jurisdiction; • the defendant, who has not participated in the proceedings and relies on this fact, was not duly served with the document in time to initiate pro - ceedings to prepare a defence; • the judgment is incompatible with an earlier judg - ment rendered in Germany or with an earlier foreign judgment on which recognition is sought, or if the proceedings on which it is based are incompatible with proceedings pending in Germany; and • the recognition of the judgment leads to a result incompatible with the essential principles of Ger - man law, particularly if the recognition is incompat - ible with fundamental rights (ordre public). The Federal Supreme Court applies a generous inter - national standard in determining the ordre public. For a violation of the German ordre public, the recognition and enforcement of the foreign judgment must lead to a result contrary to the principles of German law. The German courts are very reluctant to refuse the recognition of a foreign judgment because of a viola - tion of ordre public. 4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards German arbitration law is regulated in the tenth sec - tion of the ZPO. The regulations therein are an almost verbatim adop - tion of the UNCITRAL Model Law on International Commercial Arbitration. Deviations from the Model Law result, inter alia, from the fact that German arbi -
tration law partially grants the parties greater party autonomy. The procedure for enforcing foreign arbitral awards was adopted into German law without deviations from the UNCITRAL Model Law. Furthermore, Germany has ratified the New York Convention. Article 1061 of the ZPO, which regulates the recognition and enforcement of foreign arbitral awards, refers, inter alia, directly to the New York Con - vention. Foreign arbitral awards from countries that have equally ratified the Convention are enforceable in Germany even without guaranteed reciprocity. The judicial procedure for recognising foreign arbi - tral awards in Germany is limited to a maximum of two instances. Furthermore, the scope of review is severely limited (see 4.4 Process of Enforcing Arbi- tral Awards ). The Higher Regional Courts ( Oberland- esgericht ) are the competent courts of first instance for recognition. Pursuant to Section 1065 (1) of the ZPO, an appeal on a point of law ( Rechtsbeschwerde ) against the decision of the Higher Regional Court can be submitted to the Federal Supreme Court ( Bun- desgerichtshof ) as the court of last instance. 4.2 Variations in Approach to Enforcement of Arbitral Awards The procedure standardised in the ZPO regulates the recognition and enforcement of foreign arbitral awards from an abstract point of view. There is no differentia - tion according to the type of arbitral award as long as it has a ruling in line with enforceable titles in Germany. 4.3 Categories of Arbitral Awards Not Enforced Declaratory awards and awards from states that have not signed the New York Convention (eg, Angola, Iraq, Tajikistan) cannot be enforced in Germany. 4.4 Process of Enforcing Arbitral Awards On 1 February 2024, the Federal Ministry of Justice published a draft bill for a law to modernise German arbitration law. Unfortunately, the government’s draft was not passed before the new German Parliament was constituted, so the procedure for recognition and enforcement of a foreign arbitral award is still gov -
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