Comparative Guides

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

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
International Arbitration
The role of the court during an arbitration
Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?

Answer ... Claims lodged before the state courts will be declared inadmissible and dismissed if they are subject to a valid arbitration agreement and the respondent objects to litigation on these grounds. In this case, both the claimant and the defendant are free to file for arbitration.

For more information about this answer please contact: Nicholas Kessler from Orrick
Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?

Answer ... During ongoing arbitration proceedings, the state courts have an auxiliary role. Regardless of whether the seat of the arbitration is inside or outside of Germany, the state courts have the power to order interim or conservatory measures regarding the subject matter of the arbitration. They may also provide judicial assistance on the application of either party or the tribunal itself, including, for instance, the summoning of a witness who did not appear before the tribunal.

Other powers of the German state courts are reserved to arbitrations seated within Germany, such as the appointment of substitute arbitrators, challenges to arbitrators and the annulment and enforcement of arbitral awards.

The German courts are also competent to declare foreign awards enforceable within the territory of Germany.

For more information about this answer please contact: Nicholas Kessler from Orrick
Can the parties exclude the court's powers by agreement?

Answer ... The freedom of the parties to exclude the courts’ powers is limited. Most of the provisions which deal with the state courts’ powers (eg, annulment, challenges) are considered mandatory.

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