Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

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4. Results: Answers
International Arbitration
Arbitration agreement
What are the validity requirements for an arbitration agreement in your jurisdiction?

Answer ... In accordance with the written form requirement of Article 7, paragraph 2 of the UNCITRAL Model Law, German law provides that in order for an arbitration agreement to be valid, it must be contained either in a document signed by the parties or in an exchange of letters, telefaxes, telegrams or other means of communication which provides a record of the agreement.

In commercial transactions, if the arbitration agreement is contained in a document which was sent by one party to the other, the silence of the other party can be deemed as consent.

Stricter formal requirements apply if one of the parties is a consumer. In this case, the arbitration agreement must be contained in a separate document and must be signed by the parties personally (or electronically with a qualified electronic signature). These special formal requirements can be replaced by notarised form.

The arbitration agreement must further specify a dispute that is arbitrable (see above).

For more information about this answer please contact: Nicholas Kessler from Orrick
Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?

Answer ... According to the doctrine of separability, the arbitration agreement on the one hand and the main contract on the other one must be treated as two separate contracts which are completely independent of each other. Consequently, the validity of the arbitration agreement is not affected by the invalidity, cancellation, modification or similar of the main contract. The German Arbitration Act fully adopts the separability doctrine; Section 1040, paragraph 1, sentence 2 of the Code of Civil Procedure even explicitly provides, in the context of the competence-competence principle, that “an arbitration clause is to be treated as an agreement independent of the other provisions of the agreement”.

For more information about this answer please contact: Nicholas Kessler from Orrick
Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?

Answer ... In the absence of any agreement by the parties as to the seat of the arbitration, the arbitral tribunal is competent to determine the seat, taking into account the circumstances of the case and the convenience of the parties (Section 1043, paragraph 1 of the Code of Civil Procedure). If all parties involved are German, the tribunal will not usually choose a seat outside of Germany without the parties’ prior consent.

Insofar as the language of the proceedings is concerned, Section 1045 of the Code of Civil Procedure provides that in the absence of a valid party agreement, the tribunal will determine the language of the arbitration.

For more information about this answer please contact: Nicholas Kessler from Orrick
International Arbitration