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While they may be challenged before German courts within one month of being rendered section 3 ZPO , they are not directly enforceable. However, any decision on costs issued in such decision on jurisdiction may be enforceable. What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under article V of the Convention? The grounds for refusing recognition of domestic awards accordingly comprise:. The party opposing recognition of the award bears the burden of proof for the existence of a ground for refusing recognition see eg, OLG Brandenburg, SchiedsVZ , Any aspect that could have — but out of negligence has not — been raised during recognition proceedings is precluded from being invoked during later enforcement proceedings LG Frankfurt a.
What is the effect of a decision recognising the award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?
German arbitration law distinguishes between recognition and enforcement. The main effect of the recognition of an award is the binding decision on the question of res judicata. The recognition of the award is a prerequisite for enforcement, but it does not render the award immediately enforceable. Contrary to foreign awards, domestic awards do not require a recognition decision, but automatically have the effect of a German court decision section ZPO. The enforceability of the award requires a declaration of enforceability by the higher regional court.
The declaration of enforceability of the court is the required title for the execution proceedings, which can be executed like any other title under German civil procedure section 1 No. In practice, recognition and enforcement of foreign awards will usually be applied for and decided simultaneously.
Germany 29 September District Court Hof (Twine case) [translation available]
What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction? Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement? In case of pending annulment proceedings at the seat of arbitration, a German court may adjourn the recognition and enforcement proceedings article VI New York Convention. German courts have held that the party seeking adjournment in recognition and enforcement proceedings has to demonstrate the prospects of success of the annulment action KG Berlin, SchiedsVZ , , Moreover, German courts will in such instances generally require the setting aside proceedings to have been formally commenced and to still be pending.
If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security?
German Codes in English
Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement? Commentators are divided as to whether article VI of the New York Convention provides a basis for the German courts to order security. However, there is no published case law available on this matter. When ordering security in any civil proceeding, which should include proceedings for the recognition and enforcement of foreign arbitral awards, the courts generally require it to be approximately per cent of the total amount claimed. The security can be — and often is — posted in the form of a bank guarantee section ZPO.
Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? In case the award is set aside after the decision recognising the award has been issued, what challenges are available against this decision? It cannot, however, be ruled out that a German court assuming exceptional circumstances may use its discretion to proceed with the recognition and enforcement notwithstanding the annulment of the award by the courts of the seat of arbitration.
The decision on recognition and enforcement of an arbitral award which has been subsequently set aside at the seat of arbitration may be annulled by the competent higher regional court sections 3 , 1 No. What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? In case of service of process ex officio, the service may be conducted by clerks of the court, the postal service, an employee of the judiciary or a bailiff.
Documents can only be served to a natural person as opposed to a legal person. Where legal proceedings are pending, service is to be made to the attorney on record section ZPO. Service may be established by a certificate recording the service, service against a receipt, in person at the offices of the court, or a registered letter with acknowledgment of receipt.
Service between attorneys is established by means of service against a receipt. Where the above-mentioned means of service are not available, the document may be served by publication on the bulletin board and is deemed served one month after publication section ZPO. What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction? The procedure for service of documents outside of the German jurisdiction is governed by international instruments eg, the Hague Service Convention of 15 November or the Regulation EC No.
Where an international instrument provides for service by postal service, service shall be made by a registered letter with acknowledgment of receipt. In all other cases, service shall be made upon request by the presiding German judge directly through the public authorities of the relevant other state section 2 ZPO. The specific procedure for the transmission of documents through the transmitting agencies in Germany to the receiving agencies abroad is regulated in the administrative regulation regarding mutual assistance in civil matters mentioned above ZRHO.
Where, however, there is no international instrument applicable, or the competent bodies of the foreign state refuse to provide legal assistance, then service may be made by the responsible diplomatic or consular mission of Germany in the relevant country or by any other competent German public authority section 3 ZPO.
In case the documents cannot be served abroad, the option of service by publication exists section No. Are there any databases or publicly available registers allowing the identification of an award debtor's assets within your jurisdiction? Such information may be found for:. Moreover, schedules of assets prepared by bailiffs in Germany in enforcement proceedings are electronically stored for two years at www.
Private parties have to request access through the competent bailiff sections f 6 , d 1 ZPO. The schedule of assets will be available in circumstances in which a debtor has previously been ordered by a court to give full disclosure of its assets see question Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?
Bailiffs properly charged with the enforcement may require an award debtor to make full disclosure of its assets and its financial situation sections a 2 No. Additionally, bailiffs may obtain information from public entities, such as the public pension funds, the Federal Central Tax Office, or the Federal Motor Transport Authority, which has information regarding the ownership of cars registered in Germany section I ZPO. Are interim measures against assets available in your jurisdiction?
May award creditors apply such interim measures against assets owned by a sovereign state? Under German civil procedure, pre-award interim measures are generally available pursuant to section et seq ZPO, which provide for an attachment and a preliminary injunction. While an attachment serves to secure a potential monetary award section ZPO , a preliminary injunction is available in order to provisionally protect other rights or regulate legal relationships sections and ZPO.
Pre-award interim measures granted by an arbitral tribunal may be declared enforceable by German courts section ZPO. For arbitral award creditors, the German arbitration law provides for a special regime to obtain interim measures.
German law: Codes
Pursuant to section 3 ZPO, an award creditor may request the preliminary enforceability of the arbitral award, which then forms the legal basis for interim enforcement measures. Such interim measures may, however, only comprise protective measures eg, the freezing of bank accounts, the attachment of tangible assets or company shares. German courts dealing with the enforceability of the arbitral award may also issue an order that enforces the interim measures of protection of the arbitral tribunal section 3 ZPO.
Interim measures may also be granted against assets owned by a sovereign state. German courts will, however, apply the sovereign immunity doctrine used in regular execution proceedings BVerfG, NJW , , Assets that serve a diplomatic purpose, for example, cannot be subject to interim measures eg, bank deposits for expenses of a diplomatic mission BVerfG, NJW , , What is the procedure to apply interim measures against assets in your jurisdiction?
Is it a requirement to obtain prior court authorisation before applying interim measures?
If yes, are such proceedings ex parte? Interim measures pursuant to section 3 ZPO are only available for domestic and foreign awards that are the subject-matter of proceedings for the declaration of enforceability before the competent higher regional court.
On 13 March , the Court ordered a trial by written proceedings Schriftliches Verfahren. The court set a strict statutory time limit Notfrist of four weeks, starting from the time when [Seller]'s claim had been delivered to [Buyer] in which [Buyer] had to communicate in writing its intention to defend against the claim. By statute, no extension can be granted for this deadline. The court also notified [Buyer], that a default of this deadline, would result in a judgment by default granting [Seller]'s claim. Since the complaint note was delivered to [Buyer] on 6 July , [Buyer] remained in silence.