The Month in Retrospect: What Else Happened in July

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 conducted in German and to its application in 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 a party. I have some (limited) sympathy with this decision 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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