GERMANY Law and Practice Contributed by: Oliver Sieg, Helmut Katschthaler, Philipp Koch and Charlott Kujath, Noerr
Anti-Anti-Injunctions German courts have allowed “anti-anti-injunction suits”, issuing interim orders which are aimed at pre- venting anti-injunctions in foreign courts. However, they are limited to very specific cases (namely pat- ent proceedings), and it is not to be expected that German courts will apply them to insurance disputes. However, German courts do recognise damages as a remedy for breaches of exclusive jurisdiction clauses. Where a party brings an action before a foreign court despite the agreed-upon exclusive jurisdiction being Germany, that party must reimburse the costs caused by the foreign proceedings under the German dam- ages regime of Sections 249 and 280 of the BGB. Anti-Arbitration Relief The mechanism of German law coming closest to anti-arbitration relief would be the right to request a state court to determine the admissibility or inadmissi- bility of arbitral proceedings prior to the forming of the tribunal. However, in line with the general understand- ing of German law pointed out above, this request does not hinder a party from proceeding with arbitra- tion. Still, if a court determines the inadmissibility of arbitral proceedings, any arbitration award issued in spite of that is considered null and void, or annullable at the very least. 2.5 AI-Related Dispute Resolution and Jurisdiction AI disputes are starting to gain traction in German courts but are still in their early stages, with no dis- tinct regime yet applied to them. Instead, to determine jurisdiction and choice of law, courts will take a close look at the nature of the specific claim in question rather than at the underlying technology. As AI sys- tems’ operations often span borders, scattering ser- vice components across different states, it appears advisable to claimants to anchor proceedings in fora that may be reliably determined. In cases where con- tractual jurisdiction clauses do not come into play, the defendant AI provider’s seat may prove to be the most reliable forum. Jurisdiction may also be determined by place of performance, although this may be difficult to pinpoint, depending on the circumstances. Determin- ing jurisdiction may be more complicated with regard to tort and the violation of personality rights via gen-
Insurers, on the other hand, may not choose between jurisdictions as freely when bringing a claim. They may initiate proceedings only before the courts of the member states in which the policyholder, insured or beneficiary is domiciled. Exceptions The parties may only deviate from these general rules in specific exceptions, for example, by agreements: • entered into after the dispute has arisen; • which provide the policyholder with an additional forum; or • which relate to the insurance contract of a specific line (such as transportation, marine, ships and aircraft) or to Large Risks insurance. Considering these restrictions, disputes may com- monly arise with regard to the validity of jurisdiction clauses and the situation of a risk – particularly in the context of global programmes that are comprised of interwoven master and local policies in different states. 2.4 Anti-Suit Injunctions Admissibility Rulings Instead of Coercive Remedies Exclusive jurisdiction and arbitration clauses are gen- erally enforced before German courts via jurisdictional objections and, as a result, by admissibility rulings. The concept of enforcing its own jurisdiction exter- nally, on the other hand, is alien to German procedural law. Consequently, it does not provide for coercive remedies such as anti-suit injunctions. When an action is brought before a German court despite a valid clause assigning jurisdiction to a for- eign court, it will dismiss the claim as inadmissible. Likewise, a valid arbitration clause, including one pro- viding for arbitration seated outside of Germany, will, pursuant to Section 1032 paragraph 1 of the German Civil Procedural Code (ZPO), render an action inad- missible – but only if the defendant raises an objection to that effect in time, namely before the beginning of the oral hearing on the merits. If the defendant fails to object in a timely manner, the German court becomes competent, meaning that a defendant must be careful about preserving their rights.
129 I NSURANCE L I T IGATI O N 2026
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