
Contents
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A. Overview A. Overview
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I. The Notion of Arbitration I. The Notion of Arbitration
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II. Commercial Arbitration II. Commercial Arbitration
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III. A Brief History of Arbitration in Germany III. A Brief History of Arbitration in Germany
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IV. Selected Statistics IV. Selected Statistics
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B. Commercial Arbitration in Germany against the Background of German State Court Litigation B. Commercial Arbitration in Germany against the Background of German State Court Litigation
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I. Overview of the German Legal and Court System I. Overview of the German Legal and Court System
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II. Relevant German Legal Traditions and Practices II. Relevant German Legal Traditions and Practices
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1. Codified Law 1. Codified Law
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2. No Binding Precedent, No Stare Decisis 2. No Binding Precedent, No Stare Decisis
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3. Emphasis on Written Pleadings and the “Relationstechnik” 3. Emphasis on Written Pleadings and the “Relationstechnik”
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4. No Pre-trial Discovery and Only Limited Document Disclosure 4. No Pre-trial Discovery and Only Limited Document Disclosure
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5. Active Role of Judges in Conducting the Proceedings 5. Active Role of Judges in Conducting the Proceedings
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C. Key Features of the German Arbitration Law C. Key Features of the German Arbitration Law
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I. The Constitutional and Statutory Legal Basis under German Law I. The Constitutional and Statutory Legal Basis under German Law
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II. Noteworthy Features of the German Arbitration Law II. Noteworthy Features of the German Arbitration Law
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III. Overview of Applicable General Legal Principles III. Overview of Applicable General Legal Principles
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1. Party Autonomy 1. Party Autonomy
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2. Neutrality 2. Neutrality
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3. Equal Treatment and the Right to be Heard 3. Equal Treatment and the Right to be Heard
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4. Procedural Efficiency 4. Procedural Efficiency
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D. Potential Advantages and Disadvantages of Arbitration in Germany D. Potential Advantages and Disadvantages of Arbitration in Germany
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I. Potential Advantages over German State Courts I. Potential Advantages over German State Courts
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1. Influence on Choice of Decision-makers 1. Influence on Choice of Decision-makers
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2. Confidentiality 2. Confidentiality
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3. Tailor-made Proceedings 3. Tailor-made Proceedings
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4. Speed? 4. Speed?
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II. Potential Disadvantages and Recent Criticisms II. Potential Disadvantages and Recent Criticisms
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1. Cost and Efficiency 1. Cost and Efficiency
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2. Settlement Pressure 2. Settlement Pressure
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3. Inclusion of Third Parties 3. Inclusion of Third Parties
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III. Special Potential Advantages in the International Context III. Special Potential Advantages in the International Context
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1. Intercultural Acceptance and Appropriate Language 1. Intercultural Acceptance and Appropriate Language
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2. Tailoring of Taking of Evidence 2. Tailoring of Taking of Evidence
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3. Enforcement of Awards Abroad Under the New York Convention 3. Enforcement of Awards Abroad Under the New York Convention
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E. Special Types of Arbitrations E. Special Types of Arbitrations
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I. Corporate Law Disputes, Including Challenge of Shareholder Resolutions I. Corporate Law Disputes, Including Challenge of Shareholder Resolutions
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II. Sports Arbitration II. Sports Arbitration
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III. Labor Law Arbitration III. Labor Law Arbitration
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IV. Administrative Law Arbitration IV. Administrative Law Arbitration
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V. Public International Law Arbitration, Especially Investment Arbitration V. Public International Law Arbitration, Especially Investment Arbitration
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F. Alternative Dispute Resolution Mechanisms in Germany F. Alternative Dispute Resolution Mechanisms in Germany
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I. Background and History I. Background and History
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II. Mediation II. Mediation
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1. German Mediation Act 1. German Mediation Act
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2. Institutional Mediation Rules 2. Institutional Mediation Rules
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3. Pros and Cons of Mediation 3. Pros and Cons of Mediation
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III. Expert Determination III. Expert Determination
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IV. Adjudication and Dispute Boards IV. Adjudication and Dispute Boards
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V. Combination of Various Dispute Resolution Mechanisms V. Combination of Various Dispute Resolution Mechanisms
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1. Combination of Arbitration and Expert Determination 1. Combination of Arbitration and Expert Determination
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2. Combination of Arbitration and Litigation 2. Combination of Arbitration and Litigation
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3. Med/Arb and Arb/Med 3. Med/Arb and Arb/Med
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Cite
Abstract
This introductory chapter presents a brief overview of the practice of commercial arbitration in Germany against the background of German state court litigation. The term ‘commercial’ here refers to arbitration related to civil law disputes between parties and public international law (especially investment treaty-based) arbitration on the one hand and consumer arbitration on the other hand. Historically, the tradition of arbitration in Germany has its roots in the 1879 version of the Zivilprozessordnung (ZPO), which remained substantially unchanged up until 1997 when it was reformed in order to adapt it to the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration of 1985 with the intention to strengthen the attractiveness of Germany as a locale for international arbitration. The chapter also explores the advantages and disadvantages of arbitration compared to German state court litigation, and discuss special types of arbitration and means of alternative dispute resolution.
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