GERMANY Law and Practice Contributed by: Michael Josenhans, Lucas Lengersdorf and Karl Kuhn, Freshfields
requires that six months’ prior notice be given to the debtor. Typically, creditors try to find consensual solu - tions to avoid enforcement actions. The most commonly threatened form of enforcement is a share enforcement of the SPE (despite the for - malistic share enforcement procedure). 6.2 Foreign Law and Jurisdiction In general, parties may contractually agree on the governing law of their agreements. Under the Rome I Regulation (Regulation (EC) No 593/2008), in general, the parties have the right to choose any governing law, even without a specific connection to the case. Similarly, the parties may contractually agree to submit to a foreign jurisdiction. Depending on which foreign jurisdiction is chosen, this submis - sion will be legally binding in accordance with different applicable regulations, conventions or laws. A waiver of immunity will generally be upheld by German courts. However, assets that serve a specific public purpose generally benefit from sovereign immunity under German law, accord - ing to Section 882a of the German Code of Civil Procedure ( Zivilprozessordnung – ZPO). 6.3 Foreign Court Judgments Under the Brussels I Regulation recast (Regu - lation (EU) No 1215/2012), judgments in civil and commercial matters delivered within an EU member state are (with very limited reasons for rejection) automatically acknowledged in all EU member states, regardless of whether or not the judgment is final and binding. If the EU regulation is not applicable but the fundamental criteria for recognition (or rejection)
are governed by an international treaty, German courts will apply those criteria. In all other cases, the foreign judgment must be both final and binding. According to Section 328 of the Code of Civil Procedure (ZPO), a foreign judgment will be acknowledged in Germany if no grounds for rejection are applicable. The party seeking recognition bears the responsibility of proving that the elements required for recogni - tion are present. 6.4 A Foreign Private Credit Lender’s Ability to Enforce Its Rights A foreign lender can generally enforce its rights in the same way as a domestic lender. 6.5 Timing and Cost of Enforcement An enforcement process of German collat - eral usually takes between two and twelve months. The timing and cost of enforcement are determined by the respective enforcement process and the type of security, as outlined in 6.1 Enforcement of Collateral by Non-Bank Secured Lenders . Generally, enforcement pro - cesses involving courts, public auctioneers or authorities are more costly and time-consuming. Therefore, the enforcement of account pledges and security assignments over claims is typically the most time and cost-effective option. 6.6 Practical Considerations/Limitations on Enforcement As mentioned in 5.3 Downstream, Upstream and Cross-Stream Guarantees there are some limitations on enforcement pursuant to German capital maintenance rules. As a consequence, so-called limitation language in the financing documentation must be included in these cases (see also 5.4 Restrictions on the Target ).
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