In a judgment last week, the Federal Supreme Court (Bundesgerichtshof) has found a US party liable for damages for bringing an action against its German contractual counterparty in the US in violation of an agreement on the jurisdiction of the German courts. With this judgment, the Federal Supreme Court decided an issue that so far had been controversially debated in the German legal literature. Until this decision, it was not clear whether the violation of a choice of court agreement does not only have a procedural effect, but does also render the violating party liable for monetary damages. (Disclosure: This post is based on the Federal Supreme Court’s press release only, as the full judgment is not yet available. I will provide an update when the judgment comes out.) Continue reading →
I have written here before about Germany’s most exclusive bar, the fourty or so lawyers admitted to the Federal Supreme Court (Bundesgerichtshof) in civil matters. Every now and then, attempts are being made to reform this part of the German legal system. Mainly, these attempts take the form of challenges in the courts against the way the members of the bar are selected and appointed – thus far, these challenges failed. The current system has been upheld time and again by the Federal Supreme Court and the Federal Constitutional Court (Bundesverfassungsgericht).
When the presidents of the German bar associations (Rechtsanwaltskammern), the self-governing bodies of the German legal profession, met earlier this month, two reform proposals for the Supreme Court bar were on their agenda. A very bold proposal suggested to abolish the exclusivity altogether and to open up representation at the highest court in civil matters to every lawyer. The second one was less revolutionary; it proposed to grant admission to those who qualified in a procedure similar to that for lawyers seeking to qualify as certified specialists (Fachanwalt) for certain areas of the law.
Foreign may well be applicable in German court proceeding, either because the parties have expressly chosen foreign law or because international private law determines its application.
If German judges apply foreign law, they are no less error-prone than in the application of their own laws. Hence, the question arises how (alleged) mistakes of a lower court in the determination and application of the foreign law are to be treated at the appeal stage. The Federal Supreme Court (Bundesgerichtshof) has provided specific guidance in a recent decision. Continue reading →