GERMANY Law and Practice Contributed by: Christian Strasser, Thomas Wambach and Yannick Greimann, HEUKING
The scope of review of a German court on an applica - tion for annulment is restricted. A review of the deci - sion on the merits does not take place; rather, the grounds for setting aside are defined by law in Section 1059 (2) of the ZPO and thus taken from the UNCI - TRAL Model Law. The grounds for setting aside can be divided into two categories: • grounds for setting aside to be raised by the appli - cant; and • grounds to be examined ex officio by the court before which the application is brought. Reasons for Setting Aside • Pursuant to Section 1059 (2) of the ZPO, the appli - cant must establish grounds and circumstances for a successful setting aside, demonstrating that either: • at least one of the parties could not validly enter into the arbitration agreement or that the arbitration agreement itself is ineffective; • the claimant was not informed prior to the appoint - ment of an arbitrator or that they were unable to raise a defence for some other reason; • the arbitration agreement does not cover the facts affected by the award, the facts are not covered by the provisions of the arbitration clause, or the award contains decisions that exceed the limits of the arbitration agreement; or • the constitution of the arbitral tribunal or the arbi - tral proceedings did not comply with a provision of Book Ten of the ZPO or an admissible agree - ment of the parties, and this is likely to have had an effect on the award.
Furthermore, the Higher Regional Court must examine ex officio whether: • the subject matter of the dispute is not arbitrable under German law; or • the recognition or enforcement of the award would lead to a result contrary to public policy (ordre public). The grounds on which an award can be set aside are exclusive and cannot be broadened even by party agreement, as that would contravene the principle of the limited scope of the examination. The setting aside retroactively annuls the arbitral award and, unless otherwise agreed by the parties, revives the arbitration agreement. Again, an appeal on a point of law ( Rechtsbeschwerde ) against the decision of the Higher Regional Court is admissible to the Federal Supreme Court pursuant to Section 1065 (1) of the ZPO.
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