German Takeover Rules: No Damages for Failure to Make Mandatory Offer

A shareholder who acquires a controlling stake in a listed company must make, under certain conditions, a mandatory offer to acquire all outstanding shares. But what happens if the shareholder does not comply with that obligation? In a decision published last week, the Federal Supreme Court (Bundesgerichtshof) ruled on the open issue whether in such a scenario, the other shareholders would be entitled to damages. The court held that no claim for damages exists. Continue reading

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Interest Accrual During Expert Determination Proceedings

Not all decisions of the Federal Supreme Court (Bundesgerichtshof) on arbitration matters deal with sexy stuff or fundamental issues, be it sovereign immunity, intra-EU BIT arbitration or the limits of party autonomy. The mundane technicalities, such as the accrual of interest, however often translate into real money for the parties to the arbitration.

In a recent case, the Federal Supreme Court devoted 44 pages to the issue from what point in time interest was due, if a matter was subject to expert determination (schiedsgutachterliche Feststellung). To cut a long story short:

The Federal Supreme Cort held that an expert determination provision, if it is silent on the issue, must typically be construed as containing an implict agreement that the claim shall only become due and payable once it has been finally determined by the expert. Hence, no interest accrues pending the expert determination.

The same ist true if the power to make the determination passes to the court pursuant to Section 319 para. German Civil Code (BGB). The claim only becomes due and payable once the court decision becomes final. As a result interest can only be awarded from this point in time.

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Should the Setting Aside of an Arbitral Award Be Abolished?

A rather provocative question – to which I do not pretend to have the answer. But ist appears that Professor Albert Jan van den Berg may have it. He will deliver the 2nd Karl-Heinz Böckstiegel Lecture on that topic. The lecture is organized by the German Institution for Arbitration in honour of Karl-Heinz-Böckstiegel, its long-time president and current honorary president. It will be held on September 13, 2013 at Grandhotel Schloss Bensberg, Bergisch Gladbach, near Cologne. Continue reading

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DIS Autumn Conference – DIS ADR Services, Berlin, October 16 – 17, 2013

The traditional autumn conference of the German Institution of Arbitration (DIS) this year is devoted to the discussion of ADR procedures and methods, which a focus on the ADR Services that DIS itself offers. We have reported on DIS suite of ADR rules and regulations in early 2012 when they were released in English. Continue reading

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