GERMANY Law and Practice Contributed by: Thomas Nägele, Simon Apel, Jonathan Drescher and Alexander Stolz, SZA Schilling, Zutt & Anschütz
The most common ADR method in IP matters is arbitration. Provided that the parties conclude a valid arbitration agreement in an arbitrable mat - ter, an action before a state court is not admis - sible. For all arbitral proceedings conducted in Germany, the tenth Book of the German Code on Civil Process (Sections 1025 to 1066) applies. The law is based on the UNCITRAL Model Law and Germany is party to various international arbitration treaties, such as the New York Con - vention. The parties are then free to agree on the lan - guage used in the arbitral proceedings, the place of arbitration, the person and the number of arbi - trators. Pertaining to the procedural rules, the parties may agree to pre-drafted arbitration rules (eg, by the ICC) or leave it to the arbitral tribunal to decide how to approach fact-finding and tak - ing of evidence. In Germany, facts and evidence must usually be provided by the parties. “Discov- ery” rules are not applicable and witnesses are questioned by the judge (no cross-examination). The tribunal’s final ruling has the same status as a final court judgment and can be declared enforceable. It includes a decision on the costs, taking into consideration all circumstances of the case, particularly the outcome.
German courts do not normally intervene in a pending arbitration. However, exceptions are made, for instance, for the appointment or challenge of arbitrators if there is no agree - ment between the parties, interim measures or assistance in taking evidence or enforcement of orders. Moreover, the court can set aside an arbitral tribunal’s jurisdiction under specific cir - cumstances if certain essential prerequisites of German law are not met.
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