A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Federal Republic of Germany.

2. Date of entry into force of the New York Convention

28 Sept.1961.

(Source: Gesetz vom 15. März 1961 zum Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche vom 10 Juni 1958, BGBl. 1961 II S. 121; notification of entry into force in Federal Gazette: Bekanntmachung vom 23. März 1962, BGBl. 1962 II S. 102.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

Reservation withdrawn on 31 Aug. 1998.

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Article I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

No.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

Federal law:

§§1061–1065, Code of Civil Procedure (Zivilprozessordnung (ZPO)), published in consolidated form in BGBl. 2005 I S. 3202; the New York Convention itself, as incorporated into German federal law by Gesetz vom 15. März 1963 zum Übereinkommen über die Anerkennung und Vollstreckung ausländischer Schiedssprüche vom 10. Juni 1958, BGBl. 1961 II S. 121.

State law:

Recognition and enforcement, like civil procedure as a whole, is generally governed by federal law. State law is only relevant in this regard where federal legislation empowers the federal states (Bundesländer) to legislate. In relation to arbitration, this has occurred only for minor issues, such as the possibility for the states to designate a Higher Regional Court (Oberlandesgericht (OLG)) with exclusive jurisdiction over certain arbitration matters within that state (see ZPO, § 1062(5)). One example is Bavaria (Freistaat Bayern): § 8 of the Verordnung über gerichtliche Zuständigkeiten im Bereich des Staatsministeriums der Justiz vom 16. November 2004 (GZVJu), GVBl. 2004 S. 471.

An application for a declaration of enforceability (Vollstreckbarerklärung, ZPO, § 1061(2)) of the award need be made only once; there is no need for actions in several states. Actual enforcement (execution against assets) is achieved by application to the competent execution authority; competence usually depends on the location of assets.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

No. However, see (b) below.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

While there is no limitation period applicable to the commencement of legal proceedings for the recognition and enforcement of foreign awards (see (a) above), it is unclear whether the German Code of Civil Procedure allows a defence to be brought against an application to enforce a foreign award in Germany if the limitation period for setting aside such an award at the seat of the arbitration has expired.

(Source: Bundesgerichtshof, BGH NJW-RR 2008, 1083 (question left undecided); Oberlandesgericht Karlsruhe, SchiedsVZ, 2008, 47; Oberlandesgericht Karlsruhe, SchiedsVZ 2012, 101 (no defence can be raised against an application to enforce once the time limit to set aside has expired); Bayerisches Oberstes Landesgericht, NJW-RR 2001, 431; Schleswig-Holsteinisches Oberlandesgericht, BeckRS 2000, 11144 (defense can be raised against an application to enforce even after the time limit to set aside has expired).)

The Federal Supreme Court decided this question only for Art. V(1)(a) of the New York Convention: the award debtor may invoke the invalidity of the arbitration clause in enforcement proceedings, even if the deadline to set aside the award has expired according to the foreign lex loci arbitri.* For any other defenses to refuse enforcement under Art. V(1) and (2) of the New York Convention, the question of whether such defenses can still be invoked after the expiry of the time limit to set aside the award is still unsettled.

*[#H3#](Source: Bundesgerichtshof, BGH, NJW 2011, 1290 (16 Dec. 2010).)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The Oberlandesgericht (lit. Higher Regional Court, i.e. Court of Appeal) in the district where the respondent has (i) its seat, (ii) its usual place of business, (iii) an asset, or (iv) where the object of the arbitral award is located; or the Kammergericht (Court of Appeal for the district of Berlin). In Bavaria and Rhineland-Palatinate, which are large enough to have more than one Oberlandesgericht, jurisdiction over all applications is concentrated in one Oberlandesgericht (Oberlandesgericht in Munich for Bavaria and Oberlandesgericht in Koblenz for Rhineland-Palatinate).

(Source: ZPO, § 1062(2).)

In order to improve efficiency and expertise, some federal states have also concentrated jurisdiction in a ‘senate’ (a standing tribunal of three judges) of the appeal court (in Hessen, the 26th Civil Senate of the Oberlandesgericht in Frankfurt, which is presided over by the President of the Oberlandesgericht; in Bavaria, the 34th Civil Senate of the Oberlandesgericht in Munich).

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

No jurisdictional requirements other than competence ratione loci (see Q.7 above). Note that if (i)–(iv) of Q.7 above do not apply, the German courts will still accept jurisdiction as the applicant may file in the Kammergericht. However, if the law at the place of arbitration itself requires formal recognition, registration or a similar procedure, this must be obtained before the German court will entertain the application for recognition or enforcement. If the award arises out of a dispute concerning the sovereign acts of another state, that state must have submitted to German jurisdiction. This can be shown through the consent to arbitrate.

(Source: Bundesgerichtshof, 6 Oct. 2016, 1 ZB 13/15, SchiedsVZ 2018, 53).

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

Inter partes proceedings, in which the respondent will be given the opportunity to be heard.

(Source: ZPO, § 1063(1) sentence 2).

However, the presiding judge can grant interim enforcement, without hearing the opposing party, until a decision on the request for enforcement has been reached. The opposing party may prevent this by providing security to cover the total amount to be enforced.

(Source: ZPO, § 1063(3)).

An oral hearing can be dispensed with unless the judge considers there may be grounds for dismissing enforcement proceedings.

(Source: ZPO, § 1063(2)).

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes, if the matter is of general relevance or if the appeal is necessary to develop the law or ensure consistency in case law.

(Source: see Rechtsbeschwerde pursuant to ZPO, § 1065, read together with ZPO, § 574 et seq.)

(b) How many levels of appeal or recourse are available against this decision?

Only one: the Rechtsbeschwerde to the German Federal Supreme Court.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

After (i) the Oberlandesgericht has issued a decision granting enforcement of the award, (ii) a certified copy of this decision has been obtained for purposes of enforcement, and (iii) the decision has been notified to the debtor. However, so long as an appeal remains possible (see Q.10 above), any execution will be subject to reimbursement in the event the appeal succeeds.

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The original or a duly authenticated copy of the award. The contract containing the arbitration clause need not be supplied but can be requested by the court.

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

In its entirety.

(c) Are originals or duly certified copies required?

See (a) above. The applicant’s counsel may authenticate the copy.

(d) How many originals or duly certified copies are required?

Only one original or one duly certified copy.

(e) Does the authority or court keep the originals that are filed?

Yes.

13.

(a) Is it necessary to provide a translation of the documents supplied?

It is normal practice to provide translations into German. Although this is not a condition for the request to be admissible, a translation can be requested by the court. The Higher Regional Court of Hamburg has ruled that the most favourable nation treatment principle enshrined in Art. VII of the New York Convention leaves it to the recognizing court to decide whether or not a translation of the award is required.

(Source: Bundesgerichtshof, BGH NJW-RR 2004, 1504; Bayerisches Oberstes Landesgericht, RIW 2001, 140; Hanseatisches Oberlandesgericht Hamburg, 20 Nov. 2006 – 6 Sch 05/06; Oberlandesgericht Celle, 2 Aug. 2018 – 8 Sch 1/18)

(b) If yes, into what language?

German.

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator or diplomatic or consular agent (of which country?) or some other person)?

No.

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

It may be argued before the court that a partial translation suffices (e.g. operative part of the award), see (a) above.

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes, but only if the respondent can persuade the court that the setting aside proceedings are likely to be successful. If the application to set aside is successful in the State where the award was rendered, the respondent may ask for enforcement to be reconsidered if it has already been granted.

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

None.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

No.

G. Confidentiality

15. (a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

The public generally does not have access to documents in the record. However, third parties can request to review the court record if they have a legal interest. When assessing this legal interest, the court can take into account the parties' legitimate interests in maintaining confidentiality.

(Source: ZPO, § 299.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

In principle, the hearings are public. Access to the hearings may be restricted, inter alia, (i) where business secrets are involved, (ii) where protection of the particular individual interests is considered to be more important than the general public interest in open hearings, or (iii) to preserve public order. These exceptions are handled with great caution as they touch on the constitutional right to public justice.

(Source: Law on Judicial Organization (Gerichtsverfassungsgesetz (GVG), § 172.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Publication by the court is possible, but names will in this case systematically be removed.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Interim and partial awards can in principle be enforced, if deciding on substance. Partial awards are enforceable if they finally and bindingly determine a part of the dispute.

(Source: Oberlandesgericht München, Order of 8 Nov. 2016 – 34 Sch 11/15, BeckRS 2016, 20383.)

However, an interim award was held unenforceable in circumstances where the arbitral tribunal had retained the option to change its interim determination in the final award upon issuance of the expert opinion

(Source: Oberlandesgericht Celle, 14 Oct. 2016 – 13 Sch 1/15 (Kart), 7 Sch 3/15, BeckRS 2016, 124988.)

Mere provisional measures ordered by an arbitral tribunal cannot be enforced.

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

Awards providing for non-monetary relief can be enforced provided the matter is capable of settlement by arbitration from a German legal perspective and such relief is not incompatible with public policy (e.g. if it would be a criminal offence to perform the action granted as relief in the award).

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

Partial enforcement is possible in general if the award is severable and the enforceable part can be delimited. The law expressly mentions the possibility of partial enforcement with regard to monetary obligations, for example.

(Source: ZPO, § 752.)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

This question is not settled in Germany. Most commentators regard an award that was set aside by the competent authorities at its seat as unenforceable. However, a minority argues that it would be unacceptable to bow automatically to a decision to set aside, to the detriment of the winning party, without having an opportunity to review whether the decision to set aside was made in accordance with fundamental procedural guarantees.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteur: Robert Hunter

Other contributors: Alexander Kirschstein, Patricia Nacimiento