GERMANY Trends and Developments Contributed by: Kevin B. Villwock and Niklas Melljes, BridgehouseLaw Germany
Another aspect that may become relevant is the requirement of reciprocity under Section 328 (1) No 5 ZPO. Since the United States does not provide a uni - form federal regime for the recognition of foreign judg - ments, reciprocity is generally assessed with reference to the recognition practice of the individual US states. In practice, German courts have generally been willing to assume reciprocity with many US states, provided that German judgments are not subject to systematic discrimination in the respective jurisdiction. Requirements for a declaration of enforceability The judgment creditor must apply for a declaration of enforceability before the competent German court. The court examines whether the statutory require - ments for recognition are satisfied. However, it does not review the substantive merits of the foreign judg - ment. Instead, the court conducts an outcome-oriented assessment and determines whether both the proce - dure and the result are compatible with the fundamen - tal principles of German law. Where a serious conflict exists, recognition may be refused pursuant to the ordre public exception. Another prerequisite is the international jurisdiction of the foreign court, as required by Section 328 ZPO. Legal challenges The principle of a fair trial has become increasingly sig - nificant in German recognition proceedings. Assess - ing potential conflicts between different legal systems requires a detailed understanding of the procedural rules applicable in the foreign jurisdiction. This frequently poses challenges. Procedural mech - anisms that differ substantially from German legal practice may initially appear incompatible with funda - mental legal principles, even where no actual conflict exists. A leading example is the judgment of the German Federal Court of Justice ( Bundesgerichtshof ) in Case IX ZR 144/91. The recognition of a US judgment was challenged because the decision had been based in part on pre-trial discovery.
Pre-trial discovery is a procedural mechanism largely unknown to German law. It involves extensive disclo - sure obligations and the exchange of interrogatories before formal trial proceedings commence. Because German civil procedure traditionally relies on a different approach to the gathering and presen - tation of evidence, concerns were raised regarding compatibility with the right to a fair hearing protected by Article 103 of the German Basic Law. The Federal Court of Justice nevertheless held that pre-trial discovery, as such, does not violate German public policy. According to the Court, refusal of rec - ognition requires a specific procedural violation rather than a mere difference between legal systems. The decision therefore struck a balance between respect for foreign procedural autonomy and the pro - tection of fundamental German legal principles. Traditional and emerging obstacles to recognition (i) Service of process The US legal system frequently relies on private pro - cess servers and alternative methods of service. German procedural law, by contrast, places particu - lar emphasis on formal proof of service and reliable identification of the recipient. Differences regarding standards of proof may there - fore create difficulties during recognition proceedings, particularly where the German court is unable to ver - ify whether the defendant received actual and timely notice of the foreign proceedings. (ii) Online proceedings and procedural fairness The increasing digitalisation of judicial proceedings in the United States has led to a growing number of cases being conducted partly or entirely online. This development may give rise to new legal questions in the context of recognition proceedings in Germany. German courts may examine whether the defendant was afforded a genuine opportunity to participate in the proceedings and effectively exercise their proce - dural rights. Technical difficulties, insufficient access
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