International Arbitration Comparative Guide

1 Legal framework

1.1 What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?

There is a longstanding tradition of using arbitration as a dispute resolution mechanism in Germany.

The German arbitration law is set out in Sections 1025 to 1066 of the Code of Civil Procedure. It is based on the UNCITRAL Model Law on International Commercial Arbitration of 1985. Subject to certain modifications, the German arbitration regime mirrors the Model Law closely. Hence, users should find it very easy to apply.

Section 1031 of the Code requires an arbitration agreement to be written. Oral agreements are insufficient. The 'written' requirement is fulfilled if the agreement is:

• signed by the parties; or
• contained in an exchange of letters, faxes or other means of telecommunication (eg, emails) which provides a record of the agreement.

The list of means of communication in Section 1031(1) is not exhaustive.

Pursuant to Section 1031(2), an arbitration agreement is also considered 'written' if it appears in a document transmitted from one party to another to which the receiving party does not object promptly. This provision is important in business transactions where oral contracts are common and one party confirms the agreement by a so-called 'commercial letter of confirmation' (kaufmännisches Bestätigungsschreiben). If the letter reflects the parties' agreement without significant deviations, the recipient is bound unless it objects without delay.

A contract which complies with the formal requirements of Section 1031 can also contain a reference to a separate document containing an arbitration agreement. Often, arbitration agreements are included in separate standard terms and conditions. As long as the reference is such as to make the arbitration agreement part of the contract, the formal requirements are fulfilled.

An arbitration agreement to which a consumer (in the meaning of Section 13 of the Civil Code) is a party must fulfil stricter form requirements (Section 1031(5)) – it must either be:

• in writing and signed personally by the parties; or
• in electronic form within the meaning of Section 126a of the Civil Code – that is, signed by the parties with their qualified electronic signatures.

1.2 Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?

The German lawmaker opted for a unified system: the arbitration regime contained in the Code of Civil Procedure establishes a single set of rules for both national and international arbitration. Under the principle of territoriality, German arbitration law is applicable to all arbitrations – whether national or international – with their seat of arbitration in Germany (Section 1025(1)). It also applies to all arbitrations, whether ad hoc or institutional and whether commercial or non-commercial disputes.

1.3 Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?

Yes, Sections 1025 to 1066 of the Code of Civil Procedure are based on the UNCITRAL Model Law, but differ in several respects:

• Scope of application: German arbitration law applies to both domestic and international arbitration proceedings, whether commercial or not, if the seat of arbitration is in Germany (Section 1025(1) of the Code). The Model Law applies only to international proceedings (Article 1 of the Model Law).
• Section 1032 of the Code of Civil Procedure: Like the Model Law, German arbitration law provides for the arbitration defence in case court proceedings are initiated under Section 1032(1) (compare Article 8(1) of the Model Law). However, the wording of these two provisions differs. Under Section 1032(1) of the code, the court is obliged to "reject the action as inadmissible". The Model Law (Article 8(1)) provides that the court shall "refer the parties to arbitration". The consequence is that the courts in Germany must engage in a full review of the existence and validity of an arbitration agreement – unlike the courts in some other jurisdictions, which are limited to a prima facie review.
• Section 1032(2) of the Code of Civil Procedure: Under this provision, a German court can be seized to determine "whether or not arbitration is admissible" before the constitution of an arbitral tribunal. The purpose is to allow an early decision on whether an arbitral tribunal has jurisdiction. This power is not provided for in the Model Law.
• Interim measures: Under German arbitration law, arbitral tribunals can order interim measures (Section 1041 of the code). While this provision is a verbatim adoption of Section 17 of the Model Law, the UNCITRAL Model Law on International Commercial Arbitration of 2006 offers more detailed provisions on interim measures and preliminary orders (Articles 17–17).
• Section 1050 of the Code of Civil Procedure: This provision is based on Section 27 of the Model Law but grants broader powers to a court – the court has the power to assist not only with the taking of evidence, but also with other judicial acts for which an arbitral tribunal lacks coercive powers. Further, Section 1050 of the code is also applicable if the seat of arbitration is not in Germany; whereas Article 27 of the Model Law applies to assistance by the state courts only if the seat of arbitration is located in the respective country. Lastly, Section 1050, sentence 3 of the Code of Civil Procedure – which is not mirrored in Article 27 of the Model Law – provides that the arbitrators are entitled to participate in the taking of evidence conducted by the state courts.

1.4 Are all provisions of the legislation in your jurisdiction mandatory?

Some provisions of German arbitration law are mandatory and cannot be modified or waived by the parties. These concern fundamental principles of the arbitration proceedings. Examples of mandatory provisions include:

• the formal requirements for an arbitration agreement (Section 1031 of the Code of Civil Procedure);
• the requirement to treat the parties equally and ensure that each party has the right to be heard, and the provision that lawyers may not be excluded as representatives (Sections 1042(1) and (2)); and
• the provision stating that a party's right to apply to set aside an award (Section 1059) cannot be excluded in its entirety or in advance before the commencement of the arbitration proceedings. Parties can only waive a particular ground for setting aside (except for the two grounds listed in Section 1059(2)2, as they serve a public interest), and then only after the award has been handed down.

1.5 Are there any current plans to amend the arbitration legislation in your jurisdiction?

A draft bill to modernise the German arbitration regime was published on 26 June 2024 and was progressing through the legislative process but has been discontinued due to the end of the legislative term. If reintroduced in the current legislative term and eventually adopted, it will introduce notable changes to the current framework, such as:

• allowing arbitral tribunals to publish arbitral awards in anonymised form if the parties agree (Section 1054b of the draft bill);
• introducing the option to issue arbitral awards as electronic documents (Section 1054(1));
• making possible dissenting and separate opinions, whose validity under German law is highly controversial (Section 1054a);
• introducing a new legal remedy to apply for setting aside an arbitral award on grounds relating to criminal law (Section 1059a), based on the action for restitution/retrial available in state court litigation pursuant to Section 580;
• recognising the competence of English-speaking commercial courts for arbitration matters (Section 1063a);
• clarifying that foreign arbitral awards on interim measures can be enforced by German state courts. The new provisions outline when enforcement applications should be dismissed (Sections 1025(2) and 1041(2)); and
• in the case of a multi-party arbitration, providing that the court will appoint the co-arbitrator if parties on the same side cannot agree on a joint candidate. In such case, the court may additionally appoint the arbitrator of the opposing party after consultation with that party (Section 1035(4)).

1.6 Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?

Germany is a signatory to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958.

Germany has made neither a commercial nor a reciprocity reservation (Article I(3) of the convention). Pursuant to Section 1061(1), the recognition and enforcement of foreign arbitral awards are governed by the convention.

1.7 Is your jurisdiction a signatory to any other treaties relevant to arbitration?

Germany has also ratified, among others:

• the Convention on the Settlement of Investment Disputes between States and Nationals of Other States;
• the Energy Charter Treaty (from which it withdrew on 20 December 2023 but which will apply until 2043 due to the 'sunset clause'); and
• the European Convention on International Commercial Arbitration of 1961.

2 Arbitrability and restrictions on arbitration

2.1 How is it determined whether a dispute is arbitrable in your jurisdiction?

Any claim involving an economic interest is arbitrable. Thus, any monetary claims – including those involving questions of competition law, the use of IP rights and so on – are arbitrable. The term 'economic interest' is broadly interpreted. Further, even claims not involving an economic interest are arbitrable if the parties are entitled to conclude a settlement on the issue in dispute (Section 1030(1) of the Code of Civil Procedure).

Disputes on the existence of a lease of residential accommodation within Germany are not arbitrable (Section 1030(2)). Due to the increasing importance of disputes arising from (patent) licence agreements, it has been heavily discussed in the German arbitration community whether the validity of patents is arbitrable (at least with inter partes effect between the parties to the arbitration).

The question of the arbitrability of corporate disputes has led to a series of landmark decisions by the Federal Court of Justice – the so-called Schiedsfähigkeit ('arbitrability') I, II, III, and IV decisions:

• In Schiedsfähigkeit I (Judgment of 29 March 1996 – II ZR 124/95), the Federal Court of Justice opposed the general arbitrability of disputes concerning defects of shareholder resolutions in a limited liability company (GmbH).
• In Schiedsfähigkeit II (Judgment of 6 April 2009 – II ZR 255/08), the court affirmed for the first time the arbitrability of disputes concerning defects of shareholders' resolutions in a GmbH. However, the arbitration proceedings must be structured in a manner equivalent to legal protection by state courts. This is the case if:
• • the minimum standard of participation rights is complied with; and
  • legal protection is granted to all parties subject to the arbitration agreement.
• In Schiedsfähigkeit III (Order of 6 April 2017 – I ZB 23/16), the court held that the requirements for the arbitration agreement that it had identified in Schiedsfähigkeit II also apply to disputes concerning defects of shareholders' resolutions within partnerships (Personengesellschaften) such as within a Kommanditgesellschaft (KG)..
• In Schiedsfähigkeit IV (Order of 23 September 2021 – I ZB 13/21), the court clarified that the stricter requirements for the arbitration agreement that it had identified in Schiedsfähigkeit II apply only to those partnerships whose articles of association specify that disputes concerning the validity of resolutions are settled with the partnership directly, rather than among the shareholders.

Further examples of decisions on arbitrability by German courts include the following:

• The Higher Regional Court Berlin (Order of 1 June 2023 – 12 SchH 5/22) decided on a case which involved a Russian-sanctioned entity. It:
• • refused to recognise the anti-arbitration injunction issued by Russian state courts under the Lugovoy Law; and
  • confirmed that arbitration proceedings are not precluded by the fact that the respondent may be subject to sanctions due to Russia's war of aggression against Ukraine.
• The Regional Court Munich I (Judgment of 25 May 2021 – 21 O 8717/20) confirmed the objective arbitrability of a claim for the transfer of a contested European patent application and the related declaratory action for damages.

2.2 Are there any restrictions on the choice of seat of arbitration for certain disputes?

German arbitration law (with the exception of the measures listed in Sections 1025(2)–(4) of the Code of Civil Procedure, which pertain to interim measures, among other things) applies only to arbitrations seated in Germany. Parties are free to choose any seat for their dispute, to the extent that the subject matter is arbitrable under German law (if an award later needs to be recognised and/or enforced in Germany).

3 Arbitration agreement

3.1 What are the validity requirements for an arbitration agreement in your jurisdiction?

Under the most favourable law test (Article VII(1) of the New York Convention), an arbitration agreement will satisfy the necessary formal requirements if it meets the formal requirements of either:

• German law; or
• German conflict of law rules (Federal Court of Justice, Judgment of 26 November 2020 – I ZR 245/19).

According to Section 1029(1) of the Code of Civil Procedure, a valid arbitration agreement must:

• contain an agreement by the parties to submit to arbitration all or certain disputes which have arisen, or which may arise, between them in respect of a defined legal relationship, whether contractual or not. In practice, this also requires explicitly excluding the competence of state courts to hear the disputes; and
• meet the requirements of:
• • objective arbitrability (Section 1030); and
  • formal validity (Section 1031).

A deficiency in the arbitration agreement renders it ineffective unless:

• it is corrected pursuant to Section 1027, 1031(6) or 1040(2); or
• the defect is immaterial.

A defect is also cured if the parties proceed to arbitration without one of them invoking the defect.

The agreement must be in writing, either signed by the parties or documented through other written communications (eg, emails) that can prove the agreement.

The arbitration agreement need not contain provisions as to procedural issues such as:

• the arbitration rules;
• the seat of arbitration;
• the number of arbitrators; or
• the language of the arbitration.

Nevertheless, it is highly recommended for parties to agree on such non-mandatory issues in the arbitration agreement.

If a contract refers to a separate document containing an arbitration clause, the clause is considered part of the contract, unless there is a timely objection.

3.2 Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?

Section 1040(1), sentence 2 adopts the doctrine of separability. Accordingly, the main contract and the arbitration agreement are treated as two separate agreements. Therefore, the existence, validity and scope of an arbitration agreement must be assessed independently from the main contract. As a consequence:

• the arbitration clause does not necessarily share the fate of the main contract; and
• the invalidity or termination of the main contract does not imply the invalidity or termination of the arbitration clause contained in it.

3.3 Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?

Pursuant to Section 1043(1), the parties are free to agree on the seat of arbitration. In the absence of such an agreement, the arbitral tribunal will decide on the seat, taking into account:

• the circumstances of the case; and
• the convenience of the parties.

In any case, the arbitral tribunal may conduct hearings, witness and expert examinations, deliberations or inspections at any place it considers appropriate:

• regardless of the formal seat of the arbitration; and
• subject to the parties' agreement.

Pursuant to Section 1045(1) of the Code of Civil Procedure, the parties are free to agree on the language(s) to be used in the arbitration. Failing such agreement, the arbitral tribunal will determine the language(s) of the proceedings. This determination applies to written submissions, hearings, awards and other communications from the arbitral tribunal. Regarding translations of evidence, the arbitral tribunal may require that written evidence be translated into the language(s) of the arbitration (Section 1045(2) of the Code of Civil Procedure).

4 Objections to jurisdiction

4.1 When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?

If a party raises objections regarding the jurisdiction of the arbitral tribunal (Section 1040(2) of the Code of Civil Procedure), the arbitral tribunal can assume jurisdiction by way of a preliminary ruling (Section 1040(3)). The opposing party must file an application with the court within one month of receipt of the preliminary ruling. Otherwise, the opposing party is precluded from invoking the invalidity of an arbitration agreement in any post-award proceedings. An arbitral tribunal can render an award while the proceedings under Section 1040(3) are still pending.

Reversing its own jurisprudence, the Federal Court of Justice (Order of 9 August 2016 – I ZB 1/15) held that the issuance of an award does not render the preliminary ruling application inadmissible. Further, the three-month deadline for the award debtor to file a setting-aside application against the award will start to run only after service of the court's decision (Section 1040(3)) denying the jurisdiction of the arbitral tribunal (by way of analogy of Section 1059(3), sentence 2)). Also, a tribunal's jurisdiction must be distinguished from the admissibility of arbitration proceedings: questions of whether pre-arbitration proceedings, such as mediation, must be undertaken are matters regarding the admissibility of the proceedings and are therefore not part of a preliminary ruling for the purposes of Section 1040(3).

The Federal Court of Justice has also held that if the respondent to an arbitration does not raise a jurisdictional objection in the arbitration proceedings, it will be barred from invoking it in proceedings before the state courts (Order of 16 December 2021 – I ZB 31/21).

4.2 Can a tribunal rule on its own jurisdiction?

According to the Kompetenz-Kompetenz principle, an arbitral tribunal can decide on its own jurisdiction (Section 1040(1), sentence 1 of the Code of Civil Procedure). An arbitral tribunal's decision assuming jurisdiction is not binding or final for a court. Any agreement by the parties to confer final and binding status on a decision of the arbitral tribunal is not valid; but in principle, it will not invalidate the arbitration agreement as a whole.

4.3 Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?

An application for a declaration of the admissibility or inadmissibility of arbitration proceedings may be made to the court until the arbitral tribunal is constituted (Section 1032(2) of the Code of Civil Procedure). After the tribunal is constituted, Section 1032(2) no longer applies. If an arbitral tribunal assumes that it has jurisdiction (eg, by way of a preliminary ruling) during the arbitration proceedings, a party can apply to the court within one month of receiving written notice of that ruling, to decide on this matter (Section 1040(3)). The ruling of the court on whether the arbitral tribunal has jurisdiction is then final and binding on the arbitral tribunal.

5 The parties

5.1 Are there any restrictions on who can be a party to an arbitration agreement?

• A party must have legal capacity or the ability to establish rights and obligations in its own name.
• The conclusion of an arbitration agreement requires capacity to conduct business.
• Special requirements also apply in relation to guardianship and insolvency.

5.2 Are the parties under any duties in relation to the arbitration?

German arbitration law does not have an explicit rule stipulating how the parties should behave during the proceedings. However, under German law, contradictory behaviour is prohibited (Section 242 of the Civil Code).

Section 1048 of the Code of Civil Procedure sets out the powers of the tribunal if the parties do not comply with the proceedings (eg, filing their submissions, appearing at the hearing). In particular, Section 1048(1) stipulates that the tribunal must end the arbitration proceedings if the claimant does not file its statement of claim.

Unlike institutional rules (eg, Article 22(1) of the 2021 International Chamber of Commerce (ICC) Rules of Arbitration or Section 27.1 of the 2018 German Arbitration Institute (DIS) Arbitration Rules), German arbitration law does not contain a provision obliging the parties and the tribunal to conduct the arbitration in an expeditious, cost-effective and/or efficient manner.

5.3 Are there any provisions of law which deal with multi-party disputes?

German arbitration law has no rules on matters such as:

• joinder;
• Consolidation;
• third-party notice;
• intervention by a third party; or
• multi-contract arbitration.

The parties can agree on institutional rules that govern such issues (eg, Articles 7, 8, 9 and 10 of the ICC Rules of Arbitration or Sections 8, 17, 18 and 19 of the DIS Arbitration Rules). In case of ad hoc proceedings, it is within the parties' autonomy to agree on the appropriate procedural rules and the tribunal's discretion to conduct the proceedings accordingly.

In 2024, the DIS issued its Supplementary Rules for Third-Party Notices, on an opt-in basis. It remains to be seen how widely these will be adopted in arbitration agreements.

Section 1035(4) of the new draft bill on arbitration (see question 1.5) provides that in multi-party arbitration proceedings, a co-arbitrator must be jointly nominated by all relevant parties on one side (eg, jointly by all claimants). According to the proposed amendment, if the joined parties fail to reach an agreement within one month, the competent court at the seat of the arbitration will appoint the co-arbitrator upon request. Thus, the possibility of multi-party arbitration is acknowledged in the draft bill.

6 Applicable law issues

6.1 How is the law of the arbitration agreement determined in your jurisdiction?

The arbitration agreement is considered separable from the main contract under the doctrine of separability. The Federal Court of Justice applies a test based on Article V(1)(a) of the New York Convention (see Judgment of 26 November 2020 – I ZR 245/19):

• If the parties explicitly select a law governing the substantive validity of the arbitration agreement, that law will usually apply to interpret and enforce the agreement, even if it differs from the law governing the main contract.
• If the parties fail to explicitly choose such law, the court will ascertain whether the parties made an implicit choice.
• In the absence of either an explicit or implicit choice, the law of the seat will apply.

6.2 Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?

In Germany, the tribunal will uphold the parties' agreement on the substantive law of the dispute, as long as the agreement:

• is clear (enough); and
• does not violate public policy.

If the substantive law is unclear or not specified, the tribunal will determine the applicable law in accordance with Section 1051(2), based on the closest connection of the contract. In doing so, criteria such as the place of performance of the contract will be decisive.

7 Consolidation and third parties

7.1 Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?

The issue of consolidation of arbitrations is not explicitly addressed in the German arbitration regime. Instead, consolidation is typically dealt with:

• under the arbitration rules of the respective arbitration institution; or
• in the parties' arbitration agreement.

For example, institutional rules may contain provisions on consolidation (eg, Article 10 of the International Chamber of Commerce (ICC) Rules of Arbitration).

Under Section 8.1 of the German Arbitration Institute (DIS) Arbitration Rules, the DIS may consolidate two or more arbitrations conducted under the DIS Rules into a single arbitration if all parties to all of the arbitrations consent upon the request of one or more parties.

7.2 Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?

German arbitration law does not provide any rules for the joinder and consolidation of third parties. The parties can agree on institutional rules that address these matters (eg, Articles 7 and 8 of the ICC Rules of Arbitration or Sections 18 and 19 of the DIS Arbitration Rules).

Under Section 19.1 of the DIS Rules, a party wishing to join an additional party to the arbitration must file a request for arbitration with the DIS against such additional party prior to the appointment of any arbitrator. This request must include, in particular:

• a statement of the specific relief sought against the additional party;
• the amount of any quantified claims and an estimate of the monetary value of any unquantified claims against the additional party;
• a description of the facts and circumstances on which the claims against the additional party are based; and
• the arbitration agreement(s) on which the party filing the request relies (Section 19.2 of the DIS Arbitration Rules).

The additional party must then provide comments on the constitution of the arbitral tribunal and file an answer (Sections 19.3–19.4 of the DIS Arbitration Rules), after which the arbitral tribunal will decide whether the claims can be resolved in the pending arbitration (Section 19.5 of the DIS Arbitration Rules). The tribunal, in making its decision, will apply:

• Section 18 of the DIS Arbitration Rules (multi-party arbitration); and
• where claims are made under more than one contract, Section 17 of the DIS Arbitration Rules (multi-contract arbitration).

7.3 Does an arbitration agreement bind assignees or other third parties?

Assignees: If German law applies to the arbitration agreement, a third party might be bound to it if rights and obligations arising from a main contract containing the arbitration agreement have been validly assigned (in application of Section 401 of the Civil Code by analogy).

Other third parties: The inclusion of third parties in an arbitration agreement is to be established separately, depending on the legal basis for the obligation. Recently, however, the Federal Court of Justice confirmed that under German law, the personal scope of an arbitration agreement is generally limited to the contracting parties and their legal successors. An extension of the arbitration agreement to non-parties based on the 'group of companies doctrine' does not form part of German arbitration law (Order of 9 March 2023 – I ZB 33/22).

8 The tribunal

8.1 How is the tribunal appointed?

Party autonomy prevails as regards the procedure for the appointment of the arbitral tribunal (Section 1035(1) of the Code of Civil Procedure). If an agreement by the parties does not exist, the default rules of the German arbitration law provide a standard procedure. In case of a three-member tribunal:

• each party appoints its own arbitrator; and
• the two party-appointed arbitrators appoint the presiding arbitrator.

Should a party fail to appoint its own arbitrator and subsequently fail to do so within one month of a request by the other party, the other party may request the court to make the appointment. If the party-appointed arbitrators fail to agree on the chairman within one month of their appointment, or if the parties fail to agree on a sole arbitrator, the court will make the appointment upon request of a party (Section 1035(3) of the Code of Civil Procedure). The court will not make a full review of the validity of the arbitration agreement in these appointment proceedings.

In case of a multi-party arbitration, the draft bill on arbitration foresees that the court will appoint the arbitrator if the parties on the same side cannot agree on a joint candidate. For a more detailed overview of the draft bill, see also question 1.5.

8.2 Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?

Unless the parties agree otherwise, the number of arbitrators will be three (Section 1034(1) of the Code of Civil Procedure). German arbitration law stipulates a special procedure, not present in the UNCITRAL Model Law, which safeguards the equal treatment of the parties in the constitution of the arbitral tribunal (Section 1034(2) of the Code of Civil Procedure). This procedure allows a court, upon the application of one party, to appoint a substitute arbitrator if the arbitration agreement grants preponderant rights to one party (eg, only one party has the right to nominate the sole arbitrator or the presiding arbitrator). The disadvantaged party must make the application within two weeks of becoming aware of the constitution of the arbitral tribunal.

German arbitration law does not prohibit persons from acting as an arbitrator due to their nationality, unless the parties agree otherwise. Depending on the matter in dispute, engineers, accountants and similar professionals are nominated as arbitrators, particularly in national arbitrations.

8.3 Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?

Arbitrators must be impartial and independent (Section 1036 of the Code of Civil Procedure). Their duty to disclose circumstances that give rise to justifiable doubts as to their impartiality or independence is ongoing from the time of their appointment. Otherwise, they can be challenged.

With regard to challenges, a two-tier system applies:

• A party must file a challenge with the arbitral tribunal.
• If the challenge is dismissed, the challenging party may apply to the competent higher regional court to decide on the challenge.

Otherwise, the challenging party is precluded from invoking in post-award proceedings that the arbitral tribunal was not properly constituted (unless public policy applies). The higher regional court is not bound by the decision of the arbitral tribunal or a third party. The parties cannot validly waive recourse to the courts.

The International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration, last updated in 2024, are widely known and used in Germany. Some courts tend to apply the standard applicable to state judges in order to assess whether facts give rise to justifiable doubts as to an arbitrator's impartiality and independence. In this respect, courts also tend to consider the principles laid down in the IBA guidelines. Despite that, the courts do not explicitly refer to, or stress not to be bound by, the IBA guidelines.

8.4 If a challenge is successful, how is the arbitrator replaced?

If an arbitrator's term ends due to resignation, a successful challenge or other reasons, a replacement arbitrator must be appointed (Section 1039 of the Code of Civil Procedure). The replacement arbitrator is appointed according to the same rules that apply to the initial appointment of the arbitrator being replaced. This means that if the original arbitrator was appointed by a specific process (eg, by the parties or through an institution), the same procedure is followed for the replacement. The parties may agree to a different procedure for the appointment of a replacement arbitrator, allowing flexibility outside of the default process.

8.5 What duties are imposed on arbitrators? Are these all imposed by legislation?

Under German arbitration law, arbitrators are subject to several duties to ensure fairness, impartiality and efficiency in the arbitration process. These duties are primarily outlined in the provisions on arbitration procedures and the conduct of arbitrators, although some are implied by the nature of arbitration and general legal principles.

Section 1036(1) of the Code of Civil Procedure requires that arbitrators be impartial and independent, explicitly obliging them to:

• avoid conflicts of interest; and
• disclose any circumstances that could raise doubts about their impartiality.

Section 1042(1) ensures that all parties are treated equally and given the right to be heard. The duty of confidentiality, while not explicitly stated in German arbitration law, is a fundamental part of arbitration and has been recognised in case law, obliging arbitrators to maintain confidentiality about the proceedings and sensitive information unless the parties agree otherwise (see also questions 15.1 and 15.2).

According to Section 1054, arbitrators must issue a reasoned award, clearly explaining their decision based on the facts and applicable law. Although not always directly mentioned in German arbitration law, arbitrators are also expected to act in good faith, ensuring that the process is conducted with integrity.

Some duties, such as confidentiality, are not explicitly set out in German arbitration law but are contained in institutional rules (eg, Section 44 of the German Arbitration Institute (DIS) Arbitration Rules).

8.6 What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?

(a) Procedure, including evidence?

Except for mandatory provisions of German arbitration law (eg, the right to be heard, equal treatment of parties and representation by counsel), the parties have the freedom to determine the procedural rules – for example, by agreeing on institutional rules and any additional procedural rules. If no agreement is reached, the arbitral tribunal has broad discretion to manage the arbitration as it deems appropriate (Section 1042(4) of the Code of Civil Procedure).

The applicable rules of evidence depend on factors such as:

• the legal/cultural background of the parties and arbitrators;
• the nature of the dispute; and
• the parties' expectations.

This allows for a tailored procedure.

It is common practice for arbitral tribunals to issue so-called 'special procedural rules' as part of the first procedural order after consulting the parties – usually following the first case management conference. In any case, tribunals can use the IBA Rules on the Taking of Evidence in International Arbitration of 2020 as guidelines, unless otherwise agreed by the parties.

Arbitral tribunals lack coercive powers and cannot compel witnesses or experts to appear, administer oaths or order third parties to produce documents. However, they can request court assistance for the taking of evidence or other judicial acts (Section 1050 of the Code of Civil Procedure).

Whether document production will be agreed and/or ordered is, in particular, subject to the parties' expectations and/or their legal/cultural background. In domestic arbitrations, document production is usually an exception. In international arbitrations – involving a German party and/or with a seat of arbitration in Germany and/or governing German law – there is a recent trend of document production becoming less and less the default rule.

As confirmed by the Higher Regional Court of Frankfurt, under German law, tribunals are not strictly bound by the principle of production and may instead investigate facts ex officio (Order of 25 March 2021 – 26 Sch 18/20).

German arbitration law allows parties to appoint their own experts and provides a framework for tribunal-appointed experts (Section 1049). The tribunal may request relevant information and ensure that the experts remain impartial and independent (Sections 1036 and 1049(3) of the Code of Civil Procedure).

Witnesses play an important role in the proceedings; however, due to the impact of domestic litigation, documentary evidence is at least equally paramount. As regards the style of witness examination, cross-examination in international arbitration is common practice; if German parties or, generally, parties from civil law jurisdictions are involved and/or the seat of arbitration is in Germany, the tribunal often takes the lead and will examine witnesses and experts first, followed by counsel. Also, written witness statements are commonly found in international arbitration proceedings seated in Germany.

Likewise, in case of agreement between the parties, tribunals may give a preliminary non-binding assessment of the merits of the case which is encouraged by the DIS Arbitration Rules (Annex 3(F)).

(b) Interim relief?

Under German arbitration law, parties to an arbitration agreement have the option to seek interim relief from either a court or the arbitral tribunal (Section 1041 of the Code of Civil Procedure). The parties can waive recourse to the arbitral tribunal for interim relief (Section 1041(1) of the Code of Civil Procedure); but whether they can validly waive access to courts at the seat of arbitration is contested by legal scholars.

Before or during arbitration proceedings, a party may request a court to order interim relief (Section 1033 of the Code of Civil Procedure), even if the seat of arbitration is outside Germany (Section 1025(2) of the Code of Civil Procedure), provided that the court has international jurisdiction. German courts can grant interim relief ex parte and often within 24 hours, depending on the circumstances. Common measures include:

• pre-award attachment to secure a monetary claim;
• preliminary injunctions to secure other claims; and
• procedures to preserve evidence.

Arbitral tribunals have broader discretion in determining interim measures but are limited to ordering measures against the parties to the arbitration agreement. They lack coercive powers, so they cannot enforce compliance unless a court is involved (Section 1041(2) of the Code of Civil Procedure). When enforcing interim measures, courts do not review the merits of the case (prohibition of the révision au fond).

If a party can prove that the interim measure was unjustified from the outset, the applicant may be liable for damages resulting from its enforcement (Sections 945 and 1041(4) of the Code of Civil Procedure).

(c) Parties which do not comply with its orders?

Arbitral tribunals lack coercive powers to enforce orders. The German arbitration regime does not provide for such powers either. However, arbitral tribunals can (and practice shows that they are increasingly willing to) consider the lack of compliance of a party with the tribunal's orders in the cost decision of the final award. Hence, a party may be ordered to pay a share of the arbitration costs (eg, arbitrator fees, counsel fees) irrespective of the outcome of the case.

As they lack coercive powers, arbitral tribunals cannot enforce interim measures if a party does not voluntarily comply with them. Upon the request of a party, a court can enforce them (Section 1041(2) of the Code of Civil Procedure). When ordering enforcement, the court will not review the merits (prohibition of the révision au fond).

The draft bill on arbitration (see question 1.5) provides that the German courts may permit the enforcement of interim measures in Germany even where the seat of the arbitration is abroad.

(d) Issuing partial final awards?

The tribunal has the power to issue a partial award in the sense of a partial judgment pursuant to Section 301 of the Code of Civil Procedure. In practice, arbitral tribunals issue partial awards on issues such as:

• liability;
• whether a claim is statute-barred; and
• quantum.

The Federal Court of Justice has emphasised that arbitral tribunals have broad discretion when deciding whether to issue a partial award (Order of 25 June 2020 – I ZB 108/19).

(e) The remedies it can grant in a final award?

Under German arbitration law, there are no inherent limitations on the types of final remedies that may be awarded in a final award. In the absence of any specific restrictions imposed by the parties' agreement, the arbitral tribunal has the authority to grant any remedy that a court with jurisdiction over the same subject matter could provide. These remedies include, among others:

• damages;
• specific performance;
• declaratory relief; and
• interim relief.

However, arbitrators may grant remedies only to the extent that they are within the scope of the claims filed by the parties. Otherwise, this would qualify as an ultra petita ruling and constitute a ground for setting aside or refusing the enforcement of an award (Section 1059(2)1(c) of the Code of Civil Procedure and Article V(1)(c) of the New York Convention).

(f) Interest?

An arbitral tribunal can grant interest in the award if a party has filed a respective claim. Otherwise, granting interest would qualify as an ultra petita ruling and constitute a ground for setting aside or refusing the enforcement of an award (Section 1059(2)1(c) of the Code of Civil Procedure and Article V(1)(c) of the New York Convention). The interest to be granted (eg, simple or compound) is subject to the law governing this issue.

8.7 How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?

Section 1048 of the Code of Civil Procedure addresses the consequences of a party's failure to act during the arbitration process:

• Where the claimant fails to submit their statement of claim, the arbitral tribunal will terminate the proceedings.
• Where the respondent fails to submit a statement of defence, the arbitral tribunal will continue the proceedings without taking the respondent's lack of participation as an acknowledgement of the claimant's allegations.

Where a party fails to make an appearance at a hearing or fails to produce documentary evidence within the set time limit, the arbitral tribunal may continue the proceedings and issue the award based on the evidence presented so far. Often, tribunals will test the evidence presented by the claimant – in particular, whether it is consistent and conclusive.

Where the arbitral tribunal is satisfied that a party has provided sufficient cause excusing its default, such default will not be taken into account.

8.8 Are arbitrators immune from liability?

Arbitrators are generally immune from liability for damages in their capacity as decision-makers. They cannot be held liable if they render a decision that is legally incorrect, except for cases of:

• intentional breach of duty (eg, Section 45.1 of the German Arbitration Institute (DIS) Arbitration Rules); or
• criminal offences.

They enjoy more or less the same privilege as German state judges (by way of analogy of Section 839(2) of the Civil Code).

However, arbitrators are generally liable for breaches of their contract with the parties – in particular, in cases where they:

• resign without good cause;
• fail to disclose circumstances which may lead to a challenge due to lack of impartiality and/or independence; or
• unduly delay or even refuse to continue with the arbitration proceedings.

In their contract with the arbitrators or by reference to institutional rules, the parties can agree to restrict or exclude the arbitrator's liability. The validity of the restriction or exclusion is subject to the applicable law.

9 The role of the court during an arbitration

9.1 Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?

If a party initiates court proceedings in breach of an arbitration agreement, the opposing party must invoke its existence prior to the beginning of the oral proceedings (Section 1032(1) of the Code of Civil Procedure). The party initiating the court proceedings then bears the burden of proving the invalidity of the arbitration agreement. The Federal Court of Justice has also determined that a motion to stay proceedings based on an arbitration agreement is considered timely if it is submitted in an objection to a default judgment. This applies provided that the default judgment was issued during the preliminary written stage of the proceedings (Judgment of 26 November 2020 – I ZR 245/19).

German arbitration law includes a special procedure not mirrored in the UNCITRAL Model Law: parties can file an application with the higher regional court to determine whether "the arbitration is admissible"; hence, an arbitral tribunal has jurisdiction to hear the dispute until the constitution of the arbitral tribunal (Sections 1032(2) and 1062(1)2 of the Code of Civil Procedure).

Both procedures also apply if the seat of arbitration is outside of Germany (Section 1025(2) of the Code of Civil Procedure). In principle, the courts will make a full review of the validity of the arbitration agreement at this pre-arbitration stage (see also question 1.3). In other jurisdictions, the courts assess the validity of the arbitration agreement only on a prima facie basis. The German approach saves time and costs if the arbitration agreement was invalid to begin with.

9.2 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?

Section 1062 of the Code of Civil Procedure outlines the jurisdiction of courts over various aspects of arbitration proceedings, particularly regarding:

• the appointment, challenge or removal of arbitrators;
• interim measures; and
• the enforcement or annulment of arbitral awards.

When the seat of arbitration is in Germany, the higher regional court designated in the arbitration agreement, or, if no designation is made, the higher regional court in the district of the seat of arbitration has jurisdiction to decide on the following matters:

• the appointment of an arbitrator (Sections 1034 and 1035 of the Code of Civil Procedure), the challenge of an arbitrator (Section 1037) or the termination of an arbitrator's mandate (Section 1038);
• determination of the admissibility of arbitration proceedings (Section 1032) or decisions confirming the arbitral tribunal's jurisdiction (Section 1040);
• interim measures (Section 1033) and the provision of judicial assistance in the taking of evidence and for other judicial acts that the tribunal cannot take on its own (Section 1050);
• the enforcement, setting aside or modification of interim measures or protective orders by the arbitral tribunal (Section 1041); and
• the setting aside of an arbitral award (Section 1059) or the issue of a declaration of enforceability (Section 1060 et seq.).

When the seat of arbitration is outside of Germany, state courts also have the power to:

• determine the admissibility of arbitration proceedings (Sections 1025(2) and 1032);
• order interim measures (Sections 1025(2) and 1033); and
• provide judicial assistance to the tribunal (Sections 1025(2) and 1050).

The draft bill on arbitration (see question 1.5) clarifies that foreign arbitral awards on interim measures can be enforced by German state courts.

State courts also act in recognition and enforcement proceedings of foreign awards (Section 1061 and Sections 1062 and following of the Code of Civil Procedure), applying the New York Convention (Section 1061(1)). If an application for enforcement declaration is refused, the court will determine that the arbitral award is not to be recognised in Germany (Section 1061(2)). Upon request, state courts will, if the arbitral award was set aside abroad after it had been declared enforceable in Germany, set aside the enforcement declaration in Germany (Section 1061(3) of the Code of Civil Procedure).

9.3 Can the parties exclude the court's powers by agreement?

The court's jurisdiction cannot be excluded in substantial part, as the need for judicial oversight arises from the private nature of arbitration proceedings. The judiciary is an integral component of a state's sovereign authority. In civil and commercial matters, the state has opted to permit arbitral tribunals to exercise quasi-judicial functions. However, German constitutional law requires that the state retains a minimum level of control over the arbitral process to safeguard the parties' right to due process. This control is exercised through the intervention of state courts, which are tasked with reviewing specific decisions of arbitral tribunals to ensure compliance with essential procedural safeguards.

As outlined in question 1.4, the right to apply for the setting aside of an award cannot be excluded in its entirety and in advance: parties can only waive a particular ground for setting-aside (except for the two grounds listed in Section 1059(2)2 of the Code of Civil Procedure, as they serve a public interest), and only after the award has been handed down.

10 Costs

10.1 How will the tribunal approach the issue of costs?

An arbitral tribunal has the power to allocate the costs of the arbitration at its discretion, unless the parties agree otherwise. By exercising such discretion, the arbitral tribunal must take into account all circumstances of the case, particularly its outcome (Section 1057 of the Code of Civil Procedure). In practice, German arbitration practitioners usually adhere to the 'costs follow the event' rule. Depending on the circumstances of the case, arbitral tribunals may also (and practice shows that they are increasingly willing to) take into account, for example, 'guerilla tactics', the outcome of jurisdictional objections, voluminous requests to produce, or the lack of compliance of a party with tribunal's orders in the cost decision of the final award. Hence, a party may be ordered to pay a share of the arbitration costs (eg, arbitrator and counsel fees), irrespective of the outcome the case (see also question 8.6(c)).

10.2 Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?

The parties can agree on the allocation and/or the assessment of the amount of costs. However, legal fees and expenses for lawyers' professional activities are governed by the Act on the Remuneration of Lawyers. The amount of legal fees depends on the value in dispute, among other things. Fixed fees are set out in a cost scale and increase with the value in dispute. The higher the value in dispute, the higher the legal fees. The amount in dispute in this cost scale is capped at €30 million, which also caps the legal fees calculated based on this amount. The counsel and party are free to conclude a standard fee agreement that provides for higher (but not for lower) legal fees. Success fee agreements between counsel and party are not permissible save for very specific circumstances which usually do not apply in arbitration. Usually, hourly counsel fees are reimbursable in arbitration proceedings, subject to any parties' agreement, even where they exceed the mandatory remuneration.

11 Funding

11.1 Is third-party funding permitted for arbitrations seated in your jurisdiction?

There are no specific laws that prohibit third-party funding for arbitrations seated in Germany. The involvement of a party that is formally not part of the dispute can at least indirectly affect the inherent principle of confidentiality in arbitration. In this regard, the legitimate interests of the opposing party must be taken into account. In any case, it must be ensured that the funder does not disclose any information to third parties. In practice, this is typically sought to be ensured through the conclusion of confidentiality agreements.

12 Award

12.1 What procedural and substantive requirements must be met by an award?

Section 1054 of the Code of Civil Procedure stipulates that an award must:

• be in writing;
• be signed by the sole arbitrator or, in case of a three-member tribunal, by its majority;
• state the reasons upon which the arbitral tribunal has based its decision (unless the parties agree otherwise); and
• state the date of the award and the seat of the arbitration.

A copy of the award signed by the arbitrators must be delivered to each party. A specific form of delivery is not required (Section 1054(4)).

The draft bill on arbitration (see question 1.5) foresees that the arbitral award can be issued as an electronic document with the qualified electronic signatures of the arbitrators. This electronic document must also be delivered to each party. However, no specific form of delivery is prescribed.

A preliminary ruling by which an arbitral tribunal assumes jurisdiction does not constitute an arbitral award that must be delivered in writing and signed by the arbitrators (Higher Regional Court Stuttgart, Order of 10 June 2021 – 1 SchH 1/21).

12.2 Must the award be produced within a certain timeframe?

There is no statutory time limit for rendering an award under German arbitration law. However, under Section 1042(3) of the Code of Civil Procedure, the parties are free to decide otherwise (eg, a fast-track provision requiring a defined period between the constitution of the arbitral tribunal and the rendering of the final award). Such agreements, however, should be carefully considered: upon the expiration of a time limit specified in the arbitration agreement, the arbitral tribunal may even cease to have jurisdiction over the dispute (functus officio). Also, if an arbitral tribunal deviates from procedural agreements by the parties, the award may be set aside pursuant to Section 1059(2)1(d) of the Code of Civil Procedure (Higher Regional Court Frankfurt, Order of 17 February 2011 – 26 Sch 13/10).

Section 37 of the German Arbitration Institute (DIS) Arbitration Rules specifies that the arbitral tribunal must, in principle, send the final award to the DIS for review within three months of the last hearing or the last authorised submission, whichever occurs later. As this time limit is not mandatory and binding, a failure to meet it has no effect on the jurisdiction of the arbitral tribunal. It will remain in office and can hand down the award at a later date. In such cases, the DIS arbitration council may reduce the fees of one or more arbitrators depending on the time taken by the tribunal to issue the final award. The DIS may, in its discretion, extend the three-month time frame (Section 4.9 of the DIS Arbitration Rules).

13 Enforcement of awards

13.1 Are awards enforced in your jurisdiction? Under what procedure?

The application in enforcement proceedings is admissible if:

• it is in writing or put on record at the court registry (Section 1063(4)); and
• the award or a certified copy is annexed to the application (Section 1064(1) of the Code of Civil Procedure).

The stricter admissibility requirements under Article IV of the New York Convention do not apply (Article VII(1) of the convention). In practice, the applicant submits a translation of the award, or at least of its operative part. A foreign award can be refused enforcement based on the grounds of Article V of the convention.

The Federal Court of Justice (Order of 29 September 2021 – I ZB 21/21) ruled that the provisions under Section 110(1) of the Code of Civil Procedure on security for costs do not apply in proceedings for the declaration of enforceability. According to Section 110(1), claimants that do not have their residence in an EU member state or a contracting state to the European Economic Area Agreement must provide security for costs if requested by the respondent.

In a more recent decision, it has been held that settlement agreements concluded in form of an award on agreed terms in foreign arbitration proceedings can be declared enforceable under Section 1061 of the Code of Civil Procedure (Bavarian Superior Court, Order of 20 November 2023 – 102 Sch 173/23e). Also, the Federal Court of Justice has held that a decision of the courts at the seat of arbitration rejecting a set-aside application is not binding on the German courts when they are seized to declare a foreign arbitral award enforceable. It is also German case law that an award debtor in enforcement proceedings can seek a declaration of non-recognition of a foreign arbitral award even before an application to declare the award enforceable in Germany is made (Order of 9 March 2023 – I ZB 33/22).

14 Grounds for challenging an award

14.1 What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?

Section 1059(2) of the Code of Civil Procedure provides an exhaustive list of grounds on the basis of which an award can be set aside. According to this provision, based on Article V of the New York Convention, an award may be set aside on any of the following grounds:

• One party lacked the capacity to conclude the arbitration agreement or the agreement is invalid under the applicable law (Section 1059(2)1(a) of the Code of Civil Procedure);
• The party did not receive proper notice of the arbitration proceedings or was unable to assert its defence (Section 1059(2)1(b));
• The award deals with issues outside the scope of the arbitration agreement, although separable parts may be set aside (Section 1059(2)1(c));
• The constitution of the arbitral tribunal or the proceedings did not comply with the law or an agreement between the parties, and this likely affected the award (Section 1059(2)1(d));
• The dispute is not arbitrable under German law (Section 1059(2)2(a)); or
• The recognition or enforcement of the award would violate public policy (ordre public) (Section 1059(2)2(b)).

The Federal Court of Justice has confirmed that fundamental German competition law rules, such as those prohibiting an abuse of dominant position and other unilateral restraints to competition, form part of German public policy. According to the Federal Court of Justice (Order of 27 September 2022 – KZB 75/21), the prohibition of a review on the merits does not apply when a violation of competition law is at issue. However, it remains to be seen how this jurisprudence will play out in practice.

The Federal Court of Justice has also held that if the chosen rules agreed upon by the parties state that a party must promptly and clearly raise the objection that the right to be heard has been violated in writing during the proceedings, a party cannot later assert a violation of its right to be heard if it does not comply with this rule (Order of 21 December 2023 – I ZB 37/23).

State courts interpret the grounds for setting aside very narrowly and the setting aside of arbitral awards is rare. Germany is an arbitration-friendly country.

14.2 Are there are any time limits and/or other requirements to bring a challenge?

Unless the parties agree otherwise, the application for setting aside must be filed with the court within a period of three months (Section 1059(3) of the Code of Civil Procedure).

In contrast, according to a recent decision of the Federal Court of Justice (Order of 21 December 2023 – I ZB 37/23), objections based on the grounds for refusal under Article V(1) of the New York Convention can still be raised in recognition and enforcement proceedings, even if the application for setting aside had not been submitted in time.

In another recent decision, the Federal Court of Justice ruled on an application to set aside an arbitral award that was filed after the applicant had already paid the awarded amount. The court decided that, in the case of unconditional payment, the debtor is no longer burdened by the award and has forfeited its right to challenge it. Whether a payment is classified as conditional or unconditional must be assessed from the creditor's perspective in light of the parties' communications preceding the payment (Order of 26 October 2023 – I ZB 14/23).

14.3 Are parties permitted to exclude any rights of challenge or appeal?

As set out in question 1.4, the right to apply for the setting aside of an award cannot be excluded in its entirety and in advance: parties can only waive a particular ground for setting aside (except for the two grounds listed in Section 1059(2)2 of the Code of Civil Procedure, as they serve a public interest), and only after the award has been handed down.

15 Confidentiality

15.1 Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?

German arbitration law is silent on whether arbitration proceedings are confidential.

However, the Federal Court of Justice has held that an arbitrator has a confidentiality obligation under their arbitrator's contract with the parties, unless the contrary is clearly indicated.

As regards the confidentiality obligations of parties, the legal situation is not clear: if the parties have not explicitly agreed in their contract or in their arbitration agreement on the confidentiality of the arbitration proceedings, it is debatable whether an implied obligation can be derived from either of the agreements.

Therefore, in practice, the parties and the arbitral tribunal often conclude a confidentiality agreement at the outset of the arbitration proceedings (eg, in the terms of reference of International Chamber of Commerce (ICC) proceedings). The wording of such a confidentiality agreement should be broad, so that it also encompasses, for example:

• the parties' pleadings;
• expert reports; and
• witness statements.

Unlike the ICC Rules on Arbitration, Section 44.1 of the German Arbitration Institute (DIS) Arbitration Rules obliges parties, counsel and arbitrators, among others, to keep the arbitration confidential.

Experts, witnesses, court reporters and similar are not bound by such a confidentiality agreement. Therefore, separate agreements should be concluded with them.

15.2 Are there any exceptions to confidentiality?

As German arbitration law is silent on whether arbitration proceedings are confidential, any exceptions to such confidentiality are not stated either.

Under the German Arbitration Institute (DIS) Arbitration Rules, an exception to confidentiality exists – there is no duty of confidentiality where disclosure is required:

• by applicable law;
• to fulfil other legal obligations; or
• for the recognition, enforcement or annulment of the arbitral award.

However, Section 44.2 of the DIS Arbitration Rules should not be construed as limiting the permissible exceptions to those expressly mentioned. Other exceptions may exist that allow for disclosure in order to protect legitimate interests that outweigh the need for confidentiality. Whether such interests prevail over confidentiality and how they are balanced will be determined on a case-by-case basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.