16 January 2023
Today, the German Federal Ministry of Justice published key points for the introduction of commercial courts (“Eckpunkte des Bundesministeriums der Justiz zur Stärkung der Gerichte in Wirtschaftsstreitigkeiten und zur Einführung von Commercial Courts”; full text, short: “Key Points”). Most importantly, according to the Key Points, proceedings in commercial disputes in Germany should in the future be possible to be conducted entirely in English language.
There are already model projects or English-language commercial chambers in various German states (such as the English-language civil chambers at regional courts in North Rhine-Westphalia, Hamburg, Hesse, or Baden-Wurttemberg). So far, however, uniform federal initiatives have always led to nothing. With the measures now proposed, the Federal Ministry of Justice again suggests to put the establishment of commercial courts on a uniform basis throughout Germany.
In summary, the Key Points propose the following measures:
- The German states should be able to provide that certain commercial disputes can be conducted entirely in English language at selected regional courts. The parties would have to agree on English as the language of the proceedings and there would have to be an objective reason for choosing this language. According to the Key Points, appeals and complaints should then also be able to be dealt with entirely in English language – at specially established senates at the higher regional courts.
- The states should be allowed to set up special first-instance panels at their higher regional courts (“commercial courts”) for large commercial cases. If the value in dispute of a legal dispute reaches or exceeds a certain threshold, for example one million euros, direct recourse to the commercial court would be possible if all parties agree. In this way, the level of the regional court could be skipped. For proceedings before the commercial courts, the possibility of drawing up a verbatim record should also be opened up, as is already known from arbitration.
- An appeal against a decision of the commercial courts should be possible to the German Federal Supreme Court (Bundesgerichtshof, “BGH”). If the proceedings before a commercial court were conducted in English language, a comprehensive conduct of the proceedings in English language – in agreement with the competent senate of the BGH – shall also be possible in the appeal.
- In future, business secrets should be protected more comprehensively than before in civil proceedings. To this end, the procedural rules under the German Business Secrets Protection Act (Geschäftsgeheimnisschutzgesetz) should be extended to all civil proceedings. Up to now, the courts could exclude the public for the trial (or for a part of it) if an important business secret was discussed. In future, the protection of business secrets should be brought forward to the time of filing the lawsuit. Information classified as confidential should not to be used or disclosed outside of legal proceedings.
The Key Points are a non-binding basis for discussion. It remains to be seen whether the proposals will result in legislative proposals.
In principle, a uniform establishment of commercial courts throughout Germany would be welcome. In particular export-oriented companies could benefit enormously if court proceedings were conducted in the same language as the underlying commercial transactions. The prerequisite, however, would always be that any judgement is also enforceable in the country of the respective trade partner. For instance, judgments of a German commercial court are currently not enforceable in China – one of the most important countries in German foreign trade relations -, because German judgments are not „recognised“ in China to this day.
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