GERMANY Trends and Developments Contributed by: Kevin B. Villwock and Niklas Melljes, BridgehouseLaw Germany
The principal innovation introduced by the AVAG therefore lies in procedural rather than substantive law. Increasing relevance of the ordre public exception The ordre public exception serves as a safeguard against the recognition of foreign judgments that are manifestly incompatible with the fundamental princi - ples of the German legal order. It is therefore limited to exceptional circumstances involving serious violations of substantive justice or procedural fairness. A landmark decision in this area is the CJEU judg - ment in Krombach v Bamberski . The case concerned a criminal conviction rendered by the Cour d’assises of Créteil in France in the defendant’s absence. When recognition and enforcement were sought in Germany, Krombach objected on the grounds that recognition would violate German public policy. The CJEU held that the defendant’s rights of defence had been infringed in a manner capable of trigger - ing the public policy exception. Such a violation was considered capable of justifying refusal of recognition under the ordre public exception. As with all exceptions, the ordre public exception must be applied restrictively. The CJEU expressly confirmed this principle in Krombach v Bamberski . Nevertheless, disputes concerning the application of the exception are becoming increasingly common. Determining whether the exception applies requires a thorough understanding of both legal systems involved. Only through careful comparison can courts assess whether a genuine conflict with fundamental legal principles exists. Growing importance of digital service and procedural documentation Recent years have witnessed an increasing emphasis on digital procedural mechanisms in connection with the recognition of foreign judgments. In particular, the ability to demonstrate service of pro - cess through reliable digital means has gained impor - tance. Verifiable service ensures that the defendant was properly informed of the proceedings and had
a genuine opportunity to defend themselves. Digital service systems therefore facilitate proof that the right to a fair hearing has been respected. At the same time, digital communication may gener - ate additional procedural disputes. Service by email, for example, may raise questions regarding proof of receipt, while fully online proceedings can create con - cerns related to technical failures, equality of arms, and access to justice. Moreover, German procedural principles regarding public access to court proceedings may be affected where hearings are conducted entirely online. Such issues may become relevant during recognition proceedings if they are capable of impairing funda - mental procedural rights. Conversely, recognition procedures may become more efficient as courts increasingly accept electronic court files submitted by foreign authorities. In any event, digitisation is noticeably transforming recognition practices. Recognition of US judgments under German domestic law General principles The recognition and enforcement of US judgments in Germany are primarily governed by German domestic law, as neither Germany nor the European Union cur - rently maintains a comprehensive treaty regime with the United States comparable to the Brussels Ia or Lugano systems. Consequently, judgments rendered by both federal and state courts are assessed under the general provisions of the German Code of Civil Procedure. Recognition and enforcement are primarily governed by Sections 328, 722 and 723 of the German Code of Civil Procedure (ZPO). While Section 328 ZPO sets out the requirements and grounds for refusal of recognition, Sections 722 and 723 ZPO govern the declaration of enforceability required for execution in Germany.
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