GERMANY Law and Practice Contributed by: Christian Strasser, Thomas Wambach and Yannick Greimann, HEUKING
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
lawyer′s 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 repeal, 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. 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 applicant must establish grounds and circumstances for a suc - cessful 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;
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