Professor Albert Jan van den Berg dealt with this rather provocative question when he delivered the 2nd Karl-Heinz Böckstiegel Lecture on the topic on September 13, 2013. The lecture has since been published, and made available on video tape. In his lecture, Professor van den Berg undertook a tour d’horizon of the legal issues that setting aside procedures create – it is well worth reading, but for all those of you you can not deal with the uncertainty of not knowing the answer, I am going to give away his conclusion: Read More
Category: ADR
Ethics in International Arbitration: The Big Debate
In May 2013, the IBA Council approved the IBA Guidelines on Party Representation in International Arbitration. The Guidelines are addressing a perception that “international arbitration has something of a reputation as the ‘Wild West’ of the law; a land where personalities are at least as important (or perhaps more so) than procedural rules, and legal representatives can be viewed by their clients as hired guns.” This is how Matthew Seys-Llewellyn’s put it in a report at Halsbury’s Law Exchange about a debate on the topic held in London on November 18, 2013: Read More
“We’d better take a lawyer for that!” Conflict Management Study by Bucerius and Taylor Wessing
Taylor Wessing and the Bucerius Center on the Legal Profession of Bucerius Law School have jointly conducted a study on what in-house lawyers in Germany expect of their external lawyers in conflict management. On Taylor Wessing’s part, my Hamburg partner Axel Bösch had the lead on this project. If you would like to receive a copy of the study, please let Axel or me know. Read More
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.