Arbitration in Germany

by Bockstiegel, Karl-Heinz; Kroll, Stefan Michael; Nacimiento, Patricia

• ISBN13: 9789041127181
• ISBN10: 9041127186
• Format: Hardcover
• Copyright: 2008-01-10
• Publisher: Wolters Kluwer Law and Business

Summary

In a country with a broad international reach, The German business community has always been-and remains-among the primary users of arbitration. Thus, when in 1998 Germany adopted with only slight modifications the UNCITRAL Model Law on Commercial Arbitration for both its international and domestic law, the stage was set for what promised to be a great proving ground For The Model Law, As Germanyrs"s courts would have to consider many diverse and complex issues arising under the new law-decisions that would benefit courts and practitioners everywhere. Now, this hugely valuable publication provides the first full, detailed commentary in English on the German arbitration law, as well as on the rules of the German Institution of Arbitration (DIS). Thirty-eight leading German lawyers and scholars deal comprehensively with the particular ways in which German law handles all arbitration matters, including the following and much more: extent of court intervention; right to object; form of arbitration agreement; interim measures by court; appointment of arbitrators; form and content of award; effect of arbitral award; termination of proceedings; recourse; enforcement of award; and legal remedies. A particularly useful chapter covers the use of the arbitration law in such specific areas of practice as banking, insurance, construction, maritime, and intellectual property. With its clear, detailed discussion of the many issues that can arise in the course of commercial arbitral proceedings, Arbitration in Germany offers comprehensive guidance to all parties either planning to arbitrate in Germany or which are already involved in arbitral proceedings or arbitration-related court proceedings in Germany. In addition, The book will be an invaluable resource for understanding the Model Law in any of the many jurisdictions that have adopted that law.

Table of Contents

Germany as a Place for International and Domestic Arbitrations: General Overview	p. 1
Germany as a Place for International and Domestic Arbitrations: General Overview	p. 3
Commentary on the German Arbitration Law (10th Book of the German Code of Civil Procedure)	p. 63
General Provisions	p. 65
Scope of Application	p. 65
Extent of Court Intervention	p. 81
Loss of Right to Object	p. 85
Receipt of Written Communications in Case of Unknown Whereabouts	p. 91
Arbitration Agreement	p. 94
Definition	p. 94
Arbitrability	p. 112
Form of Arbitration Agreement	p. 126
Arbitration Agreement and Substantive Claim Before Court	p. 139
Arbitration Agreement and Interim Measures by Court	p. 157
Constitution of Arbitral Tribunal	p. 169
Introduction	p. 169
Composition of Arbitral Tribunal	p. 179
Appointment of Arbitrators	p. 190
Challenge of an Arbitrator	p. 207
Challenge Procedure	p. 224
Failure or Impossibility to Act	p. 234
Appointment of Substitute Arbitrator	p. 241
Jurisdiction of Arbitral Tibunal	p. 248
Competence of Arbitral Tribunal to Rule on its Jurisdiction	p. 248
Interim Measures of Protection	p. 262
Conduct of Arbitral Proceedings	p. 275
Introduction	p. 275
General Rules of Procedure	p. 277
Place of Arbitration	p. 289
Commencement of Arbitral Proceedings	p. 302
Language of Proceedings	p. 307
Statements of Claim and Defence	p. 311
Oral Hearings and Written Proceedings	p. 318
Default of a Party	p. 329
Expert Appointed by Arbitral Tribunal	p. 335
Court Assistance in Taking Evidence and other Judicial Acts	p. 341
Making of Award and Termination of Proceedings	p. 346
Rules Applicable to Substance of Dispute	p. 346
Decision Making by Panel of Arbitrators	p. 363
Settlement	p. 371
Form and Contents of Award	p. 387
Effect of the Arbitral Award	p. 397
Termination of Proceedings	p. 410
Decision on Costs	p. 416
Correction and Interpretation of Award; Additional Award	p. 432
Recourse Against Award	p. 436
Application for Setting Aside	p. 436
Recognition and Enforcement of Awards	p. 479
Introduction	p. 479
Domestic Awards	p. 488
Foreign Awards	p. 506
Court Proceedings	p. 573
Introduction	p. 573
Competence	p. 595
General Provisions	p. 603
Particularities Regarding the Enforcement of Awards	p. 613
Legal Remedies	p. 615
Arbitral Tribunals Not Established By Agreement	p. 618
Mutatis Mutandis Application of the Provisions of the Tenth Book	p. 618
Commentary on the Arbitration Rules of the German Institution of Arbitration (DIS Rules)	p. 655
Introduction	p. 657
Scope of Application	p. 664
Selection of Arbitrators	p. 670
Number of Arbitrators	p. 673
Requisite Copies of Written Pleadings and Attachments	p. 676
Delivery of Written Communications	p. 679
Commencement of Arbitral Proceedings	p. 684
Costs upon Commencement of Proceedings	p. 688
Delivery of Statement of Claim to Respondent	p. 691
Statement of Defence	p. 693
Counterclaim	p. 695
Costs of Filing Counterclaim	p. 698
Arbitral Tribunal with Three Arbitrators	p. 700
Multiple Parties on Claimant or Respondent Side	p. 705
Sole Arbitrator	p. 709
Impartiality and Independence	p. 712
Acceptance of Mandate as Arbitrator	p. 714
Confirmation of Arbitrators	p. 717
Challenge of Arbitrator	p. 720
Default of an Arbitrator	p. 725
Interim Measures of Protection	p. 728
Place of Arbitration	p. 732
Language of Proceedings	p. 737
Applicable Law	p. 740
Rules of Procedure	p. 744
Advance on Costs of Arbitral Tribunal	p. 748
Due Process	p. 751
Establishing the Facts	p. 755
Oral Hearing	p. 758
Records of Oral Proceedings	p. 760
Default of a Party	p. 762
Closing of Proceedings	p. 765
Settlement	p. 767
Rendering of the Arbitral Award	p. 770
Arbitral Award	p. 773
Decision on Costs	p. 776
Delivery of the Arbitral Award	p. 782
Interpretation and Correction of Arbitral Award	p. 785
Effect of Arbitral Award	p. 787
Termination of Arbitral Proceedings	p. 789
Costs of Arbitral Proceedings	p. 792
Loss of Right to Object	p. 800
Publication of the Arbitral Award	p. 802
Confidentiality	p. 803
Exclusion of Liability	p. 805
Selected areas and issues of Arbitration In Germany	p. 807
Ad Hoc Arbitration in Germany	p. 809
ICC Arbitration in Germany	p. 837
Trade Arbitration in Germany	p. 863
Maritime Arbitration in Germany	p. 889
Construction Arbitration in Germany	p. 899
Arbitration of Banking and Finance Disputes in Germany	p. 919
Arbitration of Insurance Disputes in Germany	p. 933
Arbitration of Intellectual Property Law Disputes in Germany	p. 953
Arbitration of Corporate Law Disputes in Germany	p. 975
Investment Arbitration and the Participation of State Parties in Germany	p. 1013
Enforcement of Decisions Declaring Awards Enforceable in Germany	p. 1061
Annexes	p. 1085
Synopsis on the UNCITRAL Model Law and the German Arbitration Law	p. 1087
German Arbitration Law prior to 1 January 1998	p. 1115
Model Applications	p. 1123
Bilateral Investment Treaties BITs concluded by the Federal Republic of Germany BITs (as of 12 February 2007)	p. 1153
German Model Treaty on the Encouragement and Reciprocal Protection of Investments (2005)	p. 1173
List of Arbitration Related German Court Decisions published in English	p. 1185
Bibliography	p. 1195
Index	p. 1207
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