The International Arbitration Review: Germany

Introduction

i Arbitration in Germany

Arbitration remains a popular dispute resolution mechanism in Germany. Germany is an arbitration-friendly jurisdiction and offers a variety of arbitration institutions, most notably the German Arbitration Institute (DIS) with about 160 cases in 2020.2

ii International and domestic arbitration law in Germany

The German arbitration law is codified in Book 10, Sections 1025 to 1066, of the German Code of Civil Procedure (ZPO), which is modelled on the UNCITRAL Model Law. The set of rules contains only a few deviations from the Model Law, and the relevant provisions apply to all arbitral proceedings with the place of arbitration in Germany, whether international or national.3

Apart from mandatory provisions, parties may contractually agree that any institutional or other set of rules may be applied instead of the ZPO for the conduct of their arbitration proceedings. The DIS, for example, provides its own DIS Rules, which were substantially modified in 2018 and offer internationally developed standards. Arbitration proceedings in Germany are also frequently conducted under other arbitration rules, such as those of the International Chamber of Commerce (ICC), and internationally recognised guidelines such as those of the International Bar Association (IBA) or, for example, the Prague Rules (2018) are often agreed.

Germany is a member state of the New York Convention of 1958, the ICSID Convention of 1965, the Energy Charter Treaty of 1964, the Geneva Protocol on Arbitration Clauses of 1923 and other international treaties.

iii Arbitration agreements and arbitrability

The ZPO defines several substantive and formal requirements for arbitration agreements.4 A valid arbitration agreement requires as a minimum that certain or all disputes between the parties arising out of a defined legal relationship must be finally solved by an arbitral tribunal to the exclusion of the courts.

Generally, German law requires the agreement to be in writing but this requirement is fulfilled not only if the arbitration agreement is contained in a document signed by the parties, but also if it is found in an exchange of letters, telefaxes, telegrams or other means of telecommunication, including email, which provide a record of the agreement.5 If reference is made to an arbitration agreement recorded elsewhere, and the contract containing such reference complies with the form requirement, such reference to the arbitration agreement suffices as well.6 The form requirement is also deemed to have been complied with if the arbitration agreement is contained in a document transmitted from one party to the other party – or by a third party to both parties – and, in accordance with common usage, because no objections have been raised in good time, such document is considered to be or form part of a binding contract between the parties.7

In addition, an arbitration agreement must fulfil the requirements of objective and subjective arbitrability.

In general, any dispute involving an economic interest or any dispute that may be object of a party settlement is arbitrable (objective arbitrability).8 Arbitration in Germany is therefore not limited to commercial disputes. However, certain types of disputes are not arbitrable, such as disputes involving issues of status in family law, certain parts of labour law,9 tenancy law and criminal proceedings.10

In principle, anyone with legal capacity can be a party to an arbitration agreement (subjective arbitrability). In some situations, strict rules apply as to the form of such an arbitration agreement. For example, if a consumer is a party to the arbitration agreement, the agreement must be contained in a separate document signed by all parties.11

iv Arbitral proceedings

The basic principle underlying the German arbitration law is party autonomy. Therefore, the parties are free to agree on most of the parameters of the proceedings such as the number and appointment of arbitrators, language, hearings, taking of evidence or submissions.

The ZPO offers default rules for cases where the arbitration agreement is silent on certain issues. For example, if (1) the number of arbitrators is not agreed, the arbitral tribunal will be constituted with three arbitrators;12 and (2) if no language or place of proceedings is specified in the agreement, the arbitral tribunal shall decide on these issues.13

Despite the extensive party autonomy, certain provisions of the ZPO are mandatory.14 The proceedings must be conducted in such a way that the parties are treated equally, and each party must have the opportunity to present its case. The parties cannot be prohibited from being represented by a lawyer. Any violation of these mandatory provisions constitutes grounds for setting aside an arbitral award.

v Arbitral awards and enforcement

Final awards terminating arbitral proceedings15 have the same effect as a final and binding court judgment.16 The award shall be made in writing and provide a reasoning.17

Arbitral awards are rarely set aside by national courts in Germany. They can only be set aside at the request of a party.18 Unless otherwise agreed, such an application must normally be made within three months after receipt of the award.19 The grounds for a successful challenge of an arbitral award are limited to exceptional cases and are exhaustively defined in the ZPO.20 They include the invalidity of the arbitration agreement, violation of fundamental procedural rights such as the right to be heard, lack of jurisdiction of the arbitral tribunal, non-arbitrability of the dispute, or violation of the ordre public.

National arbitral awards may be enforced once they have been declared enforceable.21 This declaration must be made by a national court. Such declaration can only be refused if the award can potentially be set aside.

International arbitral awards can be enforced under the New York Convention of 1958.22

The year in review

i Developments affecting international arbitration

The ZPO has remained unchanged recently.

Germany has not (yet) adopted the 2006 amendments of the UNCITRAL Model Law. A ministerial working group is currently engaged in examining ways to adapt the arbitration law to more recent changes, including also the 2006 amendments. The aim is to keep the German arbitration law in line with international developments and changes at the level of EU law, with the underlying objective of maintaining Germany's attractiveness as an arbitration location.

The biggest impact on international arbitration in Germany in recent years has been the modification of the DIS Rules in 2018, and also changes in European Union legislation influenced the arbitration practice (e.g., the General Data Protection Regulation (GDPR)23 of 2018).

ii Arbitration developments in local courts

German case law mainly deals with setting aside and enforcement proceedings. Not only the decisions of the Federal Court of Justice (BGH) are of considerable relevance, but also the decisions of the Higher Regional Courts, as these are the primarily competent courts for challenging, enforcing or setting aside arbitral awards.24

Scope of an arbitration agreement

In line with established case law, the Frankfurt Higher Regional Court maintained a wide understanding and interpretation of the scope of arbitration agreements in a decision dated 7 September 2020.25

The court had to decide whether a claim for damages was covered by a contractual arbitration clause even though the contract had been terminated before the cause of action arose. The court held that (1) an arbitration clause containing the wording 'all disputes arising out of or in connection with the contract' does not only cover contractual claims but also claims in tort; and (2) the scope of such a clause includes pre-contractual claims as well as claims in connection with the termination of the contract by cancellation or withdrawal. A claim for damages that arises only after the termination of the contract is thus still covered by the arbitration agreement.

Contractual clause to conclude a separate arbitration contract

In February 2020, the Federal Court of Justice had to decide on the validity of a contractual clause in which the parties had agreed to conclude a separate arbitration contract.26

The respondent challenged the arbitral tribunal's jurisdiction, arguing that the parties had not concluded a necessary arbitration contract and that the contractual clause would not constitute a valid arbitration agreement. The Federal Court of Justice held that in certain cases a contractual clause that refers to a subsequent arbitration contract may itself constitute a valid arbitration agreement. Whether this is the case must be determined by means of interpretation, with regard to the intention of the parties to be legally bound by the clause. Such an intention can be assumed if the clause contains all relevant information necessary for the conduct of arbitration proceedings, and the subsequent contract would only supplement or amend the clause.

The clause in question resembled a typical arbitration clause with the additional agreement to enter into a separate arbitration contract. Thus, the clause was detailed enough to assume a binding intention of the parties to resolve all disputes arising out of or in connection with the contract by arbitration. The Federal Court of Justice even argued that the missing arbitration contract may be an indicator that the parties relied on the validity of the contractual clause as an arbitration agreement.

The fundamental right to be heard

As in the previous years, the Federal Court of Justice and the higher regional courts had to rule several times on alleged violations of the right to be heard.

In June 2020, the Frankfurt Higher Regional Court ruled that the right to be heard is not violated if the arbitral tribunal does not follow the parties' joint legal understanding of certain contractual clauses.27 In the underlying dispute, the issue was whether a contract between the two parties had been successfully terminated. While the parties agreed that the contract had to be cancelled, the arbitral tribunal interpreted the contract as having been automatically terminated after a period of four years. The ordre public may be violated if an arbitral tribunal takes disputed aspects as undisputed. However, the Frankfurt Higher Regional Court argued that the interpretation of a contractual clause is a question of law that cannot be declared undisputed by the parties, so that a different interpretation does not violate the parties' right to be heard.

In previous decisions, the same court has explained the extent to which an arbitral tribunal must take into account the parties' submissions in its final award without violating their right to be heard.28 Generally, it can be assumed that the arbitral tribunal has considered all submissions and arguments made by the parties. This presumption is not already rebutted if the final award does not contain any or only a few remarks regarding certain submissions, as the arbitral tribunal is not obliged to address every submission in detail. A violation of the right to be heard can only be established if special circumstances justify the assumption that the arbitral tribunal did not take note of certain submissions or did not consider them in its decision. The arbitral tribunal must consider the core of the parties' submissions on central aspects of the case. It is not sufficient if the arbitral tribunal merely lists the documents submitted by the parties or repeats their contents without evaluating them in legal terms.29

Both decisions of the Frankfurt Higher Regional Court followed the line of argumentation established and frequently repeated by the Federal Court of Justice.30

The fundamental principle of procedural equality of arms as part of the procedural ordre public

On 23 July 2020, the Federal Court of Justice had to decide whether the fundamental principle of procedural equality of arms as part of the procedural public policy was violated by an arbitral tribunal when it conducted a virtual oral examination of a witness in German – the language of the proceedings – while the respondent partially translated questions to and responses of the witness to and from Persian, the native language of the witness.31

The Federal Court of Justice defines the principle of procedural equality of arms as equivalence of the parties' procedural positions, which gives them the opportunity to present everything relevant to their case and employ all necessary procedural means of defence against the opposing party. It is the duty of the arbitral tribunal to ensure this equality by conducting the proceedings in an objective, fair manner. As part of the procedural public policy, a violation may result in the setting aside of the arbitral award.32

The claimant argued that the arbitral tribunal had failed to prevent possible influence on the witness by the respondent and had thus breached its duty to ensure the truth was established by the hearing.

While the Federal Court of Justice found that such a duty exists, it reiterated its established case law that not every violation of procedural rules leads to a violation of the ordre public. Only breaches of a certain weight can lead to the setting aside of an arbitral award. In the present case, the court could not find such a violation as the respondent's interventions and translations remained selective and did not affect any essential aspects of the case.

Especially in virtual oral hearings, the arbitral tribunal must be careful to maintain control over the proceedings by ensuring that the parties do not interfere with the taking of evidence by instructing witnesses via email or smartphone. Such an interference can violate the principle of procedural equality of arms and lead to the setting aside of the arbitral award.

Surprise decisions

The Frankfurt Higher Regional Court had to decide on a case in which the respondent in arbitration proceedings claimed that the arbitral tribunal had made a surprise decision that violated the German ordre public and therefore had to be set aside.33

Decisions are considered surprise decisions if they are based on reasons that could not be foreseen even by a knowledgeable and diligent party without prior guidance from by the tribunal. In the dispute at hand, the chairman of the arbitral tribunal had openly questioned the parties' understanding of a disputed contractual clause. In addition, the arbitral tribunal had issued a procedural order requesting the parties to explain this matter in more detail. The Frankfurt Higher Regional Court found that these actions of the arbitral tribunal had sufficiently demonstrated the relevance of the matter to the parties and therefore they could not have been surprised by the final award.

The decision shows that the arbitral tribunal is not obliged to explicitly state which circumstances and arguments it may consider, and to which extent.

Binding effect of a decision on the jurisdiction of the arbitral tribunal

In a decision dated 27 February 2020, the Munich Higher Regional Court ruled that a decision of a state court on the jurisdiction of the arbitral tribunal has a binding effect in subsequent setting aside proceedings.

Originally, the respondent had unsuccessfully challenged the arbitral tribunal's jurisdiction, arguing that the claimant was not party to the arbitration agreement. In the subsequent enforcement proceedings before the Munich Higher Regional Court, the respondent argued that the subject matter of the dispute was not arbitrable as it concerned German labour law.34 The court made two relevant statements on this argument: (1) it held that the respondent was not precluded from raising this argument, although it could have done so during the proceedings challenging the arbitral tribunal's jurisdiction, as the objection of non-arbitrability must be taken into account by the court by law; and (2) the court was, however, prohibited from considering the respondent's objection because the previous decision on the jurisdiction of the arbitral tribunal had become legally effective. The binding effect of this first decision stems from the fact that it established the admissibility of the arbitration, including the arbitrability of the matter at issue.

Parties to an arbitration should therefore raise objections to the jurisdiction of the arbitral tribunal or the arbitrability of the matter in question as early as possible.

Inadmissibility of a complaint against the assistance of a court in the taking of evidence

For the first time, the Federal Court of Justice had to decide on the admissibility of a respondent's complaint against a local court's decision to assist the arbitral tribunal in the taking of evidence.35

The claimant had applied to the competent local court pursuant to Section 1050 ZPO to assist the arbitral tribunal in the taking of evidence by hearing a witness. The respondent's complaint against the court's decision to grant the request was considered inadmissible by the competent regional court. It argued that decisions on the taking of evidence cannot be challenged during the arbitral proceedings but can only be considered when the final arbitral award is challenged.

Even though the Federal Court of Justice did not overturn the regional court's decision, it argued on different legal grounds. According to the Federal Court of Justice, there is no general rule that a decision by a local court on the assistance of an arbitral tribunal in the taking of evidence cannot be challenged. Rather, it found the regulations on filing a complaint subject to a time limit applicable to the case at hand. According to these, a complaint may be filed if the possibility is expressly provided for by law or if the contested decision did not require an oral hearing or an oral discussion and rejected a procedural motion.36 The Federal Court of Justice did not consider either prerequisite to be met. As a result, the respondent's options to complain against the court's decision to assist the arbitral tribunal in taking evidence continue to be limited to challenging the final award.

In an obiter dictum, the Federal Court of Justice indicated that a complaint against a local court's decision not to grant the request to assist the arbitral tribunal in the taking of evidence will most likely be admissible.

Binding effect of former interim decisions

In a decision of 27 February 2020, the Munich Higher Regional Court ruled on the question of the binding effect of an interim court decision.37 In the underlying arbitral proceedings, the respondent had argued that the dispute was not objectively arbitrable as it fell within the scope of non-arbitrable labour law. Furthermore, the respondent had contested the arbitral tribunal's jurisdiction. In an interim decision, the arbitral tribunal had declared itself competent. The Munich Higher Regional Court had rejected the request against the arbitral's jurisdiction in a decision of 26 January 2016.38

In the later final award, the arbitral tribunal rejected the respondent's argument that the matter is objectively arbitrable. In the subsequent enforcement proceedings, the respondent again raised the objection of non-arbitrability.

In its decision of 27 February 2020, the Munich Higher Regional Court held that the argument of objective non-arbitrability could no longer be heard, as the court's decision of 26 January 2016 included the question of objective arbitrability, even though it was only an interim decision focusing on the jurisdiction of the arbitral tribunal. The challenge of the arbitral award could therefore no longer be based on objective non-arbitrability.

This decision is relevant for cases involving interim relief. Parties must carefully consider challenging such interim decisions, as they could contain binding findings on issues that are not the focus of the interim proceedings.

Binding effect of a foreign decision on setting aside a final award

The Brandenburg Higher Regional Court ruled that the decision of a foreign court in proceedings to set aside a final arbitral award is binding on a German court in subsequent enforcement proceedings.39

The claimant was awarded damages against the respondent by an arbitral tribunal constituted under the Vienna Arbitration Rules. The place of arbitration was in Austria. The respondent challenged the award before the Supreme Court of the Republic of Austria (Oberster Gerichtshof der Republik Österreich), arguing that the arbitral tribunal did not have jurisdiction because the underlying arbitration agreement did not include the respondent. The Supreme Court of the Republic of Austria did not set aside the arbitral award. The claimant then applied to the Brandenburg Higher Regional Court for a declaration of enforceability, which the respondent objected with the identical argument that the arbitral tribunal lacked jurisdiction.

The Brandenburg Higher Regional Court ruled that the decision of the Supreme Court of the Republic of Austria relating to the jurisdiction of the arbitral tribunal had a binding effect on the decision of the German court on enforceability declaration of the award. The court stated that a decision of a state court in the country from which the arbitral award originated may not be reviewed in proceedings for a declaration of enforceability of the award. However, a declaration of jurisdiction by the tribunal itself had no binding effect on subsequent proceedings before a state court.

In the same decision, the Brandenburg Higher Regional Court reiterated its established case law that the respondent's objection to the jurisdiction of the arbitral tribunal must be raised during the arbitral proceedings. Otherwise, the respondent is precluded from raising this objection when challenging the arbitral award before a state court.

Prohibition of a révision au fond by state courts

Closely related to the fundamental right to be heard is the prohibition of a révision au fond. According to this principle, state courts may not make their own assessment of evidence when deciding on the setting aside of an arbitral award or the declaration of enforceability of an award.

In a case decided by the Frankfurt Higher Regional Court on 28 May 2020, the respondent in the arbitral proceedings challenged the arbitral award on the grounds of violation of the right to be heard. It argued that the arbitral tribunal had failed to consider one of the respondent's requests to take evidence. Generally, the right to be heard is violated when the arbitral tribunal fails to consider evidence that may be relevant to the issue in dispute. However, the question of relevance is within the discretion of the arbitral tribunal and may not be reviewed by the state court in setting-aside proceedings. The Frankfurt Higher Regional Court was therefore prohibited from reviewing the arbitral tribunal's decision not to take evidence.

In a decision dated 18 June 2020, the Frankfurt Higher Regional Court repeated its reasoning in a very similar case.40 The respondent claimed a violation of its right to be heard, stating that the arbitral tribunal had not taken into account a witness statement. Based on this allegation, the respondent requested that the court make its own assessment of the witness statement. As in the previous case, the Frankfurt Higher Regional Court rejected this request on the grounds that it was prohibited from conducting such a révision au fond.

Later in the year, the same court concretised its view on révision au fond.41 According to it, state courts are even prohibited from reviewing the arbitral tribunal's assessment of evidence when it is evidently wrong. An arbitral award could only be set aside if it violated fundamental notions of justice and thus violated the ordre public.

Requirements on form and content of an arbitral award

In September 2020, the Munich Higher Regional Court clarified which formal requirements an arbitral award must fulfil to be declared enforceable.42

According to the ZPO, an arbitral award must be in writing and signed by the arbitrators.43 It must also contain the date of the award and the place of arbitration,44 and it must be served on each of the parties.45

In the underlying dispute, the claimant applied for a declaration of enforceability of a partial award. The parties had only received a copy of the original arbitral award signed by the chairman of the arbitral tribunal. Furthermore, the copy only contained the date of the award but not the place of arbitration. The respondent objected the claimant's application on these grounds.

The Munich Higher Regional Court stated that the failure to specify the place of arbitration does not lead to the invalidity of the award if the place of arbitration can be inferred from the circumstances of the award. This is already the case if the arbitration agreement between the parties determines a place of arbitration.

The court also held that sending copies of the award to the parties may be sufficient, but only if the award has been signed by each of the arbitrators. Only then does the award become effective and can be declared enforceable.

Since the first but not the second requirement was fulfilled, the award did not become effective and was not declared enforceable by the court.

Admissibility of a set-off

In a decision dated 7 September 2020, the Frankfurt Higher Regional Court set out the general requirements for the admissibility of a set-off in enforcement proceedings.46

The claimant had applied for a declaration of enforceability concerning an arbitral award for damages against the respondent. During the enforcement proceedings, the respondent declared a set-off against the claimant's claim with an alleged claim for damages of its own. Under the ZPO, the respondent may in principle declare a set-off in enforcement proceedings.47 The only condition is that the grounds on which a set-off is based have not yet existed at the time of arbitration. However, this possibility is excluded if the claim of set-off is covered by an arbitration agreement itself. In this case, the state court would not have the jurisdiction to decide on the claim. The Frankfurt Higher Regional Court found that the respondent's claim for damages was covered by the same arbitration agreement on which the claimant's award was based. Therefore, it declared the set-off inadmissible.

This reasoning is in line with an earlier decision of the same court.48 However, in that case the arbitral tribunal had already decided on the respondent's claim. This made the previously outlined dispute about the jurisdiction of the state court irrelevant, leading to the admissibility of the set-off.

No reimbursement of out-of-court lawyer's fees

In May 2020, the Frankfurt Higher Regional Court ruled that the claimant cannot claim damages from the respondent for out-of-court costs that incurred prior to the claimant's application for enforcement.49

In the underlying case, the claimant demanded payment of the awarded amount from the respondent before filing an application for a declaration of enforceability with the competent state court, which the respondent refused. Thereupon, the claimant not only applied to the Munich Higher Regional Court for a declaration of enforceability, but also demanded reimbursement for its extrajudicial lawyer's fees for its application. The latter was rejected by the court on the grounds that it did not have jurisdiction to decide on this application. It stated that for arbitral proceedings, the jurisdiction of the state courts is exhaustively enumerated in the ZPO and does not allow for an extensive interpretation. There was also no 'annex jurisdiction' for a claim for reimbursement. In particular, jurisdiction cannot be justified by the respondent's interest in keeping its court and lawyer's fees low.

iii Investor–state disputes

Bilateral investment treaties

In the aftermath of the landmark Achmea decision by the Court of Justice of the European Union (CJEU) on 6 March 2018,50 which ruled that the investor–state arbitration clause in the Netherlands–Slovakia bilateral investment treaty was incompatible with EU law, as it impaired the CJEU's exclusive jurisdiction to interpret EU law and thereby undermined the principle of autonomy of the EU, two investor–state disputes under the Energy Charter Treaty (ECT) are still pending before ICSID arbitral tribunals – Vattenfall et al. v. Federal Republic of Germany51 and STRABAG SE et al. v. Federal Republic of Germany.52

In the Vattenfall et al. v. Federal Republic of Germany arbitration, the arbitral tribunal considers the Achmea ruling inapplicable to the case. In its view, an interpretation of the arbitration agreement in the ECT does not lead to the conclusion that intra-EU investor–state arbitration should be excluded from the treaty; the Achmea decision only applied to bilateral treaties and not to mixed treaties such as the ECT.53

On 5 March 2021, the German government announced that it had reached an understanding with several energy suppliers, including Vattenfall, on key points for the payment of financial compensation because of the accelerated nuclear phase-out following the reactor disaster in Fukushima in 2011 and the settlement of all related legal disputes. It is envisaged that the Federal Republic of Germany will pay an amount of approximately €1.4 billion to Vattenfall.54

In STRABAG SE et al. v. Federal Republic of Germany, the claimant, an investor in offshore projects in the North Sea, alleges that an amendment to the German Renewable Energy Sources Act with respect to state support for renewable energy projects violates the ECT. The respondent raised preliminary objections under ICSID Arbitration Rule 41(5), which the arbitral tribunal rejected on 24 July 2020, finding that the claim was not manifestly without legal merit.55

Germany is a signatory state of the EU Agreement for the termination of bilateral investment treaties between Member States of the European Union, which is a consequence of the Achmea decision and entered into force on 29 August 2020. As this agreement explicitly does not apply to proceedings under the ECT, stating that the Member States will deal with this matter at a later stage, it remains to be seen how arbitral tribunals in pending and future arbitrations under intra-EU bilateral investment treaties will react to the Agreement.

Outlook and conclusions

The development of national jurisdiction in international arbitration issues continues the arbitration-friendly environment in Germany. When deciding arbitration issues, German courts are guided by international standards. On the one hand, the courts emphasise the principles of party autonomy and the arbitral tribunal's broad discretionary powers and, on the other hand, define the limits of arbitration, which lie in the fundamental procedural rights.

Footnotes

1 Tanja V Pfitzner is the founder and principal of Pfitzner Legal.

2 German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit - DIS), Statistics 2020, available online at: www.disarb.org/en/about-us/our-work-in-numbers.

3 Section 1025 ZPO.

4 Sections 1031 et seq. ZPO.

5 Section 1031 (1) ZPO.

6 Section 1031 (3) ZPO.

7 Section 1031 (2) ZPO.

8 Section 1030 (1) ZPO.

9 Sections 4, 101 (3) German Labour Court Act (ArbGG).

10 See, e.g., Section 1030 (2) ZPO.

11 Section 1031 (5) ZPO.

12 Section 1034 (1) ZPO.

13 Sections 1043 (1), 1045 (1) ZPO.

14 Section 1042 (3) ZPO.

15 Sections 1056 et seq. ZPO.

16 Section 1055 ZPO.

17 Section 1054 ZPO.

18 Section 1059 (1) ZPO.

19 Section 1059 (3) ZPO.

20 Section 1059 (2) ZPO.

21 Section 1060 (1) ZPO.

22 Section 1061 ZPO.

23 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data, and on the free movement of such data, and repealing Directive 95/46/EC.

24 Section 1062 (1) No. 3 ZPO.

25 Frankfurt Higher Regional Court, decision of 7 September 2020, 26 Sch 2/20.

26 Federal Court of Justice, decision of 6 February 2020, I ZB 44/19.

27 Frankfurt Higher Regional Court, decision of 18 June 2020, 26 Sch 11/19.

28 Frankfurt Higher Regional Court, decision of 2 April 2020, 26 Sch 14/19; Frankfurt Higher Regional Court, decision of 28 May 2020, 26 Sch 7/19; Frankfurt Higher Regional Court, decision of 22 November 2020, 26 Sch 14/20.

29 Federal Court of Justice, decision of 18 July 2019, I ZB 90/18; also part of the decision of 19 December 2019, I ZB 90/18.

30 Federal Court of Justice, decision of 16 January 2020, I ZB 23/19.

31 Federal Court of Justice, decision of 23 July 2020, I ZB 88/19.

32 Section 1059 (2) No. 2 ZPO.

33 Frankfurt Higher Regional Court, decision of 18 June 2020, 26 Sch 11/19.

34 Sections 4, 101 (3) German Labour Court Act (ArbGG).

35 Federal Court of Justice, decision of 20 February 2020, I ZB 45/19.

36 Section 567, para. 1 ZPO.

37 Munich Higher Regional Court, decision of 27 February 2020, 34 Sch 15/17.

38 Munich Higher Regional Court, decision of 26 January 2016, 34 SchH 13/15.

39 Brandenburg Higher Regional Court, decision of 20 May 2020, 11 Sch 1/19.

40 Frankfurt Higher Regional Court, decision of 18 June 2020, 26 Sch 11/19.

41 Frankfurt Higher Regional Court, decision of 26 November 2020, 26 Sch 14/20.

42 Munich Higher Regional Court, decision of 30 September 2020, 34 Sch 13/18.

43 Section 1054 (1) ZPO.

44 Section 1054 (3) ZPO.

45 Section 1054 (4) ZPO.

46 Frankfurt Higher Regional Court, decision of 7 September 2020, 26 Sch 2/20.

47 Section 767 (2) ZPO.

48 Frankfurt Higher Regional Court, decision of 13 July 2020, 26 Sch 18/19.

49 Frankfurt Higher Regional Court, decision of 14 April 2020, 26 Sch 3/20.

50 European Court of Justice, decision of 6 March 2018, C-284/16.

51 ICSID Case No. ARB/12/12.

52 ICSID Case No. ARB/19/29.

53 ICSID Case No. ARB/12/12, decision on the Achmea issue of 31 August 2018, paras 211 et seq.

55 ICSID Case No. ARB/19/29.

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