Reimbursement of Translation Costs Incurred by Foreign Party in German Proceedings

If a foreign party to court proceedings in Germany requires translations of German language documents produced for and/or exchanged in these proceedings, the costs incurred for translations can quickly become significant. The fundamental rule is that the costs have to be reimbursed by the opponent as costs necessary to conduct the proceedings, if the foreign party succeeds in the litigation. A recent decision of the Court of Appeals (Oberlandesgericht) Frankfurt provides a very useful summary of the case law and dismisses many of the standard objections that losing parties tend to raise. Continue reading

Human Rights Day 2020: IBA Webinars, 10/11 December 2020

On the occasion of this year’s Human Rights Day, the IBA Business and Human Rights Committee and the IBA Human Rights Law Committee have put together a day of virtual events – actually, taking into account time differences across the globe, the three sessions are spread out over two days from a European time zone’s perspective. Session 2 on the impact of human rights on businesses is particularly timely, given the recent legislative initiatives in Germany, the EU and elsewhere – the Swiss will be voting on this coming Sunday on an initiative called “For responsible businesses – protecting human rights and the environment”.The proposed legislation would require Swiss companies to examine whether they can comply with internationally recognised human rights and environmental standards when carrying out their business operations. Swiss companies would be liable for damage caused by companies that they control. However, they will not be held liable if they can prove that they complied with their due diligence obligations. Continue reading

UPDATE – German Football Cup: Schalke 04’s Opponent Determined By Arbitral Tribunal

UPDATE: Shortly after this post went online Türkgücü published the judgment of the District Court (Landgericht) Munich dated 30 September 2020 and the arbitral award of the Bavarian Football Association’s arbitral tribunal dated 27 October 2020 on its website. The decisions can be found here and here. In the original post, I stated the 2019/2020 season of the Bavarian Regional League had been abandoned. This is not correct – the season was only suspended and is currently continuing as the 2019/2021 season (with my hometown club, Viktoria Aschaffenburg, currently leading the league and Türkgücu still being shown in the table). I have corrected this and added the correct dates.

Finally, a decision of the Munich Court of Appeals (Oberlandesgericht) – and thus the fourth decision-making body after the District Court Munich, the Bavarian Supreme Court (Bayerisches Oberstes Landesgericht) and the arbitral tribunal – brought the injunctive proceedings before the state courts to an end for the time being. Continue reading

IBA Virtually Together: Managing International Litigation, 4 November 2020

At this year’s International Bar Association‘s virtual annual conference, I have the pleasure of  moderating a session on managing international litigation, with this wonderful panel:

  • Sam Hosseini of Stikeman Elliott in Toronto, providing the perspective of outside counsel,
  • James Menz, Senior Litigation Counsel at Bombardier, sharing his insights from the corporate perspetive
  • and last but not least Brody Warren of the Hague Conference on Private International Law’s Permanent Bureau in The Hague. Inter alia, Brody will shed light on the use of video technology under the Hague Evidence Convention.

Join us on Wednesday, 4 November 2020 at 12:00 AM GMT!

German Football Cup: Schalke 04’s Opponent Determined By Arbitral Tribunal

As if Schalke 04 did not have enough problems as it is this season, given their current standing in the Bundesliga, the club through no fault of their own could not play their first-round match in the German Cup. Schalke fell victim to a dispute between two Bavarian clubs, fourth-division side Schweinfurt 05, and newly promoted third-division club Türkgücü Munich. The Bavarian Football Association (Bayerischer Fussballverband, BFV) nominated Schweinfurt 05 for of the 2020/2021 Cup season. However, Türkgücü felt that they should have been nominated, and obtained an injunction in the Munich courts, which prevented the match between Schweinfurt 05 and Schalke 04 to be played as scheduled on 13 September 2020.

Please note that I have posted an UPDATE on 7 November 2020.  Continue reading

The Emergency Arbitrator – Getting Interim Relief Before a Tribunal is Constituted

In today’s guest post, Jakob Horn summarizes his doctoral thesis on key legal issues around emergency arbitration, Der Emergency Arbitrator und die ZPO, published by Mohr Siebeck. Jakob primarily discusses the emergency arbitrator in the context of German law. Despite this focus, his findings are easily transferrable to other jurisdictions, as Germany has adopted the UNCITRAL Model Law on International Commercial Arbitration

In commercial life, from time to time conflicts arise that require prompt action to avoid irrevocable harm. For instance, imagine a scenario where a business agreed on a non-compete clause with a former business partner. A violation of this non-compete clause would pose an immediate danger to the business, requiring prompt enforcement.

Traditionally, most state courts offer injunctions in such circumstances. However, in the commercial world today, parties often opt for an arbitration clause for reasons such as confidentiality. How does one uphold these arbitration agreements as well as seek urgent relief?

The answer is the emergency arbitrator. In the last 14 years, most large arbitral institutions around the world, such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the Hong Kong International Arbitration Centre (HKIAC) have introduced the emergency arbitrator as a tool in their toolbox to deal with such urgent cases. Continue reading