GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
basis, about the potential costs and cost risk, whether or not to file an action.
shareholder at all. The court must decide on such an application of a party. At the discre- tion of the court, a judgment under reservation may be made in cases where the defendant has declared the set-off against the claim. If the claim is fully heard but the circumstances of the set-off are not, the court may decide on the claim sub- ject to the judgment being later adjusted based on the set-off. A special form of this judgment under reserva- tion is the judgment in summary proceedings based on documentary evidence or on a bill of exchange. In these proceedings, the parties may rely only on documents and party testimony for evidence. All other means of evidence are excluded, and counteractions are not permitted. However, even after a judgment under reserva- tion has been rendered, the proceedings remain pending and the defendant may raise objec- tions and submit evidence at a later stage of the proceedings, without the limitations of the evidentiary means. Such expeditious proceed- ings therefore entail a risk for the plaintiff that the judgment under reservation will be set aside at a later stage. If the plaintiff has enforced the judgment under reservation, it is liable to the defendant for all damages resulting from such enforcement on a no-fault basis. 4.3 Dispositive Motions German procedural law offers specific objec- tions a defendant can raise to prevent the court from hearing a case at all; for example, if a valid arbitration clause covers the matter in dispute, the court must dismiss the claim without looking at the substantive facts of the dispute. 4.4 Requirements for Interested Parties to Join a Lawsuit If a new plaintiff wishes to join a pending law- suit, the existing plaintiff, and possibly also the
4. Pre-trial Proceedings 4.1 Interim Applications/Motions
German civil procedural law provides for several interim applications a party may file before the commencement of proceedings. These applica- tions are not limited to case management issues. They include interim injunctions to ensure the enforceability of a claim or to protect a party from irreparable harm. Further interim applica- tions are motions for the preservation of evi- dence and security for costs. 4.2 Early Judgment Applications Courts have a legal obligation to expedite the proceedings. German procedural law does not provide for a general form of “early judgment”, but specific types of judgments are available that are comparable to the concept of early judg- ment. If a court is convinced that liability and at least some damage has been incurred, it can make an interlocutory judgment based on the claim, leav- ing the quantification of the claim open. Such judgments often motivate the parties to settle the amount of damages. A court may also issue an interlocutory judgment on certain contentious procedural issues. Such judgments are at the sole discretion of the court. A court may also, at its discretion, decide on only part of the claims or counterclaims when this part is ripe for a final decision. Early judgments can also be declaratory in nature and cover basic legal issues underlying the dispute – eg, if a plaintiff claiming complex damages as a shareholder of a company is a
478 CHAMBERS.COM
Powered by FlippingBook