New Courts for International Commercial Disputes in Germany
The topic of international commercial courts or chambers was a trendy one a couple of years ago. It has been dropped to a large extent in academia – although, if I am not wrong, it will come up again in the form of a course at The Hague Academy in the next future. It remains important in practice.
On 1 November 2020, two Commercial Courts were inaugurated in Baden-Württemberg: one in Stuttgart, the other one in Mannheim. A dedicated website in German, English and French, provides information about their main features which, to the extent it is possible under German law, are cut to fit the specificities of cross-border disputes in the following commercial matters: disputes in connection with the acquisition of companies or shares of companies (both courts); disputes resulting from mutual commercial transactions with a value in dispute of at least € 2 million (both courts); corporate disputes (both courts); and disputes resulting from bank and financial transactions (Mannheim).
The website has definitely been designed with care and with the purpose to attract litigants; it may therefore be looked at as an example to be followed in other Länder. Hessen, where a Chamber for International Commercial Disputes at the Landgericht Frankfurt am Main was established already in 2018, opted for a much more sober model: no pictures, no colours, no links, most basic information in one sheet in German and English; possibly not the best-selling strategy. The same applies to Hamburg. This being said, relevant information is still lacking in the Baden-Wüttemberg site in comparison, for instance, with the NCC in Amsterdam.
Among the interesting features of the new courts, I would like to highlight that they are staffed with German judges: the system would not allow hiring foreigners as it happens in other courts for international commercial litigation, such as the DIFC Courts. However, all the judges in the Stuttgart and Mannheim commercial courts have been appointed in light of their expertise in commercial matters, and because (so the website) they will be able to conduct the proceedings in English if the litigants choose the option. Their academic background, former positions, command of a foreign language, excerpts of their cv regarding academic publications, as well as their age, have been made public on the website: a novelty in Germany, by all means. It is worth noticing that not all other international commercial courts provide information regarding their judges. A curiosity: those who make it include even personal data like whether married or not, and number of children; difficult not to wonder why.
On the language of the proceedings, in spite of the reference to a choice of English by the parties I am not sure it is possible to have the whole process, nor the decision, in English. In any event, documents in English can be used so that it is not necessary to obtain extensive translations of contractual documents or engage the services of interpreters.
It looks as if the new courts are better suited than the average German ones (at least, in pre-covid19 times) regarding the IT equipment in the courtrooms and the support staff: ‘Hearings can be held using state-of-the-art technology in both Stuttgart and Mannheim. The technical equipment includes modern video-conference technology and the latest presentation technology’.
On the conduct of the proceedings, the commercial courts of Bade-Württemberg will follow the common rules, but are willing to reinvent already existing faculties under German procedural law: regarding the length of the proceedings, it is acknowledged that speedy determination is of the essence, therefore a ‘case management conference’ is possible in order to structure the later stages of the proceedings. In addition, the parties may agree to limit the opportunities to file appeals by a mutual agreement not to seek legal remedies, even at the start of the proceedings; in this way, the dispute is to be decided quickly and conclusively in just one court. This possibility is highlighted in the website together with other features bringing to mind immediately the traditional disadvantages of arbitration: easy involvement of third parties, effective coercive measures and efficient enforcement. As it happens, the comparison is even explicit at some point: ‘Additionally, unlike arbitration tribunals, the courts can administer oaths or declarations in lieu of an oath’. In a similar vein, the indication to the court fees being moderate and capped when the value in dispute reaches € 30 million can be read as an indirect hint to the expensive costs of litigation in other countries (EU and non EU) with similar judicial bodies.
Should the parties not agree on excluding appeals, specialised appeal panels have been set up at the Stuttgart and Karlsruhe Higher Regional Courts, which are responsible for appeals and complaints against the decisions of the Stuttgart and Mannheim Chambers and also offer comparable advantages.
Finally, the Baden-Württemberg commercial court’s website refers to relevant systemic features of the German judiciary and legal system, in particular to compliance with the rule of law, the impartiality and independence of the judges: an added value not to be taken for granted any longer (let me refer you to this shocking, but also saddening editorial in Verfassungsblog).
NoA: Because of the federal order of the Federal Republic of Germany, the court system is also structured federally. Jurisdiction is exercised by federal courts and by the courts of the 16 federal states (Länder). The main workload of the administration of justice lies with the Länder. The decision to have specialized chambers or divisions devoted to cross-border commercial litigation lies with the Ministry of the respective Land.
Dear Marta, thank you for this comprehensive note on the new Commercial Court in Germany’s south. In fact, the Commercial Court consists of specialized chambers at the Regional Courts of Mannheim and Stuttgart, which are staffed with professional judges holding English-language Masters’ degrees or having previously worked for international commercial law firms (and with truly “German” CVs indicating their marital status and number of children :-)). The greatest novelty is indeed the possibility of conducting proceedings in English, although parties’ submissions, transcripts and judgments must still be written in German, as required by the currently hotly-debated federal law provision of section 184 of the German Courts Constitution Act (Gerichtsverfassungsgesetz). Thus, the main advantages appear to be that the oral hearings can be held in English and that costly and time-consuming translations will no longer be necessary for most documents. In addition, the state government has also emphasised that the Commercial Courts will be equipped with up-to-date legal infrastructure; the Stuttgart Commercial Court has even moved to a new modern building. And, probably most importantly, the new Commercial Court’s docket is already filling up as appropriate cases pending at the Regional Courts of Mannheim and Stuttgart are currently being referred to the new Commercial Court and the first sets of oral hearings have now been scheduled for early 2021. Best wishes, Ben Steinbrück
Thanks a lot for your input, Ben.
Indeed, the relevant question is whether the chambers get cases or not. To the best of my knowledge Frankfurt has had not that many so far, while the NCC attracted litigation quite early – and reported about it in the website.
Dear Marta, dear Ben,
thank you both for this. If I’ve read correctly on the website ( “The Higher Regional Courts of Stuttgart and Karlsruhe house specialised panels which handle appeals and complaints against the decisions of the courts in Stuttgart and Mannheim and which also offer similar advantages.”), only the first level of appeal is covered. Do you have by any chance knowledge about the further appeal structure (or plans for it)? In my understanding above the appeal to the Higher Regional Courts the parties would see themselves confronted with the regular German (speaking) court structure, that is to say BGH (Federal Court of Justice) and BVerfG (Federal Constitutional Court).
I wonder, if it would make sense to create similar panels there. Of course only if the need becomes arises from the case load of the new Commercial Courts and the appeal panels. How long do you think it will take for an appeal case from the new Commercial Courts to the BGH via section 542 et seq. ZPO?
Then again, having in mind the limited number of 40 attorneys admitted to the BGH, at that level the need for specialised attorneys might be a different topic to be discussed in that context.
Kind regards,
Claas
Dear Class,
Many thanks for your comment. The website provides no information, beyond the reference to the availability of specialized panels for the appeal. All I know in addition is that it will be the 20th civil Senate in Stuttgart, and that the senate is still to be determined in Karlsruhe. And, yes, I believe you are right regarding the language conditions for further appeals.
The Ministry of Justice and European Affairs of Baden-Württemberg will hold an on-line seminar beginning of next year, where I expect all these questions to be addressed. I’ll post the information the moment I get it.