GERMANY Law and Practice Contributed by: Christian Strasser, Thomas Wambach and Yannick Greimann, HEUKING
erned by the current versions of Section 1061 ff. of the ZPO. The basic prerequisite for successful recognition and enforceability proceedings is that the arbitral award has become final according to the rules of the country of origin. The procedure for recognition and enforceability is initiated by an application to the competent Higher Regional Court. The formal requirements for the appli - cation under the ZPO are not as strict as those of Article IV (1) (a) and (b) as set out in the New York Convention. The original (or a certified copy) of the arbitral award must be submitted to the Higher Regional Court; however, there is no obligation for a German translation to be attached. Likewise, there is no requirement that the arbitration agreement be submitted. However, the court may order the submis - sion of the arbitration agreement or a translation of the award. If the current version of the draft bill for a law to modernise German arbitration law comes into force, the court’s authority to request a translation of the arbitration award will be restricted and can only be requested if there is a special need for a translation in individual cases. However, if the applicant seeks a faster decision, attaching a translation when initiating the proceeding can shorten the proceedings. The standard of review by the German courts is limited and is determined by Article 5 of the New York Con - vention. The courts neither review the substance of the foreign arbitral award nor question the decision’s enforceability. If the application is admissible, but there is a ground for refusal under Article 5 of the New York Conven - tion, or if any other prerequisite for recognition and enforcement is missing, the Higher Regional Court will declare the non-recognition of the award in Germany under Section 1061 (2) of the ZPO. An appeal on a point of law ( Rechtsbeschwerde ) against this court order is admissible to the Federal Supreme Court under Section 1065 of the ZPO. Otherwise, the Higher Regional Court shall declare the award enforceable in Germany by court order. This
declaration of enforceability constitutes a title accord - ing to Section 794 (1) No 4a of the ZPO that the appli - cant can use for enforcement. The enforcement of this court order is again gov - erned by the general rules of the ZPO on compulsory enforcement. The opposing party to the application may oppose the declaration of enforceability by the Higher Regional Court by way of an appeal on a point of law pursu - ant to Section 1065 of the ZPO as well as by way of an enforcement counterclaim under Section 767 (1) ( Vollstreckungsabwehrklage ) of the ZPO. 4.5 Costs and Time Taken to Enforce Arbitral Awards The proceedings for recognising and enforcing a for - eign arbitral award are, on average, shorter than ordi - nary court proceedings. The court costs for such proceedings amount to approximately two-thirds of the usual court costs. If no agreement on remuneration was concluded, the lawyers’ fees are based on the German Lawyers’ Fees Act ( Rechtsanwaltsvergütungsgesetz ) and are, there - fore, dependent on the value of the dispute. The costs accruing are the same as in court proceedings at first instance. 4.6 Challenging Enforcement of Arbitral Awards General Rule: No Appeal Possible Under German arbitration law, an appeal against an arbitral award that has already been rendered is not possible. However, the parties are free to include such an appeal in their arbitration agreement. Setting Aside of the Award However, the ZPO provides that an arbitral award that has already been rendered may be set aside under certain circumstances. In order to obtain such a setting aside, a party may file an application under Section 1059 (1) of the ZPO. The application must be filed with the competent Higher Regional Court no later than three months after receiv - ing the arbitral award.
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