The Month in Retrospect: What Else Happened in July

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Robert BoyleEvaluation of the Mediation Act

Five years ago, the Mediation Act (Mediationsgesetz) came into force. We did cover the legislative process on the blog in quite some detail. The Act provided for an evaluation to take place at the fifth anniversary. This report has now been published by the Federal Ministry of Justice. Here is a link to the full report, and here is a link to a summary produced by Professor Reinhard Greger, who served as a judge at the Federal Supreme Court before becoming a full-time academic. His summary is critical of the success of the Act: In essence, the total number of mediations remains low, and has not increased significantly since the Act came into force. Only very few mediators can actually earn a meaningful income by providing mediation services.

Federal Supreme Court Bar

On this blog, we have written about the most exclusive bar in Germany, the lawyers who are exclusively admitted to the Federal Supreme Court on various occasions. So far, all legal challenges to bring down this monopoly have failed, and so has the latest attempt by Volker Römermann, an applicant who did not get called to the Supreme Court bar. The Federal Constitutional Court did not even find the constitutional challenge admissible. JuVe reports that Römermann’s crusade to reform the Supreme Court bar is gaining support: The attitude amongst several of the local bar associations appears to change, with Berlin and Düsseldorf having voted to to end the Monopoly.

Polish in German Courts 

The Fiscal Court (Finanzgericht) Hamburg got some attention in the legal blogosphere, when it allowed a complaint submitted not in the German language, but in Polish. The judges in Hamburg held that the court was under an obligation to commission a German translation of the complaint. This position is the certainly an outlier and contrary to both the statutory provision that all court proceedings must be in German and to its application practice. The court’s key argument was that from the complaint, it was clear that the Polish complainant was seeking to challenge a specific decision of the German authorities in a customs matter. The key difference to civil litigation of course is that in proceedings before the fiscal court, almost invariably the state is the defendant.. I have some (limited) sympathy with this argument from an access to justice point of view: there may be situations where a foreign party deserves the protection of the court in order to be able to effectively litigate against the state, and the state must see to it that there is a level playing field between the parties. This argument of course does not translate into civil litigation, where private parties are up against each other. For that reason alone, the decision cannot be applied in a civil litigation context.

Cases of the Week 

Finally, in July we had the first three Cases of the Week on the blog: Arbitrability III on the arbitrability of shareholder disputes in partnership in week 28, the Facebook Ireland case on the requirement of a translation when proceedings are served abroad in week 29 and the Federal Constitutional Court’s interim order in the Jones Day/Volkswagen case in week 30.

Off topic

And off topic, I am happy to report that my plan to attend at least one jazz concert each month worked out well in July: I enjoyed Mike Stern and Randy Brecker in Aschaffenburg’s Colos-Saal and Herbie Hancock at Freiiburg’s Zeltmusikfestival. Mike Stern and Randy Brecker were joined by Lenny White on drums, bringing me one step closer to hearing everyone who played on Miles Davis’s seminal Bitches Brew album live in concert.

The illustration is taken from  the front page of Robert Boyle’s collcetion of essays (2nd Edition, London 1669).

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Case of the Week: Federal Consitutional Court Issues Interim Order in Jones Day/Volkswagen Case

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BundesverfassungsgerichtThis Case of the Week is hot off the press – the case originally scheduled for today will have to wait: Today, the Federal Constitutional Court (Bundesverfassungsgericht) announced that it had issued a rare interim order in support of a constitutional challenge (Verfassungsbeschwerde) of Jones Day against the court order that allowed the seizure of potentially privileged documents from Jones Day’s Munich Offices. Continue reading

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Case of the Week: No English Translation Required for Service of German Proceedings on Facebook in Ireland

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Le_palais_de_justice_de_Littenstrasse_(Berlin)_(6303550695)This case of the week deals with the question if and when a translation is required if service of proceedings is effected abroad. It arose in an action brought by a German Facebook user against Facebook Ireland, the Facebook entity through which Facebook apparently conducts its business in mainland Europe. As always in matters of service, we are not really concerned with the underlying facts, but it appears that Facebook blocked the user’s account, and the user wanted to have this measure removed. Initial correspondence by email led to nothing. Facebook Ireland refused to de-block the account with an email; an email, it must be noted, written in German. The user then issued proceedings in the Local Court (Amtsgericht) Berlin-Mitte, filing a statement of claim in German. No translation was ordered, and all the papers were served on Facebook in Ireland in German only. Facebook challenged the validity of Service. Continue reading

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Women Arbitrators in Germany: DIS Publishes 2016 Gender Balance Statistics

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dis-logoLast month, the German Institution of Arbitration (DIS) published its 2016 gender Balance statistics on DIS arbitral tribunals:

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Case of the Week: Federal Supreme Court on Arbitrability of Shareholder Disputes – “Arbitrability III”

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SRCoLDIn a recent decision, the Federal Supreme Court (Bundesgerichtshof) has held that shareholder disputes, and in particular challenges to shareholder resolutions (Beschlußmängelstreitigkeiten) in a limited partnership (Kommanditgesellschaft) are arbitrable in principle. The standards governing the arbitrability of disputes of that nature in the limited liability company (GmbH) apply to partnerships as well. The Federal Supreme Court refers to this decision as “Arbitrability III” (“Schiedsfähigkeit III”), so let’s briefly look at “Arbitrability I” and “Arbitrability II” to put this this decision into context: Continue reading

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American Bar Association: Call for Top 100 Blawg Nominations

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HallofFame200pxV3There are still things in the United States I envy. Certainly, one of these is the thriving legal blogosphere – they have so many legal blogs over there, they even created a neologism for them: blawgs.

Every year since 2007, the American Bar Association’s ABA Journal has assembled a list of their 100 favorite blawgs for the December issue.

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Frankfurt vs London – Brexit: An Opportunity for Frankfurt to Become a New Hub of Litigation in Europe?

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Eintracht_Frankfurt_Logo_svgEintracht Frankfurt has had a great run in the first half of the current Bundesliga season, eying a spot in next season’s Europa League or, behold, even a Champions League slot. So matches between Frankfurt and one of the London teams appeared a real possibility. More recently, Eintracht’s losing streak of five straight matches has cast some doubt over these ambitions, even though the team just about manage to hold on to a Europa League Slot for now. But of course, there’s the Brexit-induced battle between London and Frankfurt for the lead role in the European financial services sector that will go ahead in any event. Continue reading

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Speeding Up Arbitration: New ICC Expedited Rules In Force

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ICC Court of Arbitration LogoThe ICC has introduced new rules for expedited proceedings that apply to all arbitration agreements entered into from March 1, 2017 onwards. With that step, the ICC is following other leading international arbitral institutions that have introduced similar expedited rules, such as ACICA, DIS, HKIAC, ICDR, SCC, SIAC, and the Swiss Rules. Continue reading

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German Institution of Arbitration: Model Arbitration Clause for ISDA Master Agreement

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dis-logoThe German Institution of Arbitration (DIS) has issued a model arbitration clause specifically tailored for use with the 2002 ISDA Master Agreement, the financial industry standard service agreement for OTC derivatives transactions. DIS views this as “yet another step in broadening the DIS’s portfolio for different industry sectors and attracting new domestic and international users.” Here’s a closer look: Continue reading

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Goethe Universität Frankfurt: German & International Arbitration, Summer Term 2017

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1200px-Goethe-Logo_svgGoethe University’s law school again offers a Summer Programme on German and International Arbitration. Here is from the course description: Continue reading

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