Law Made in Germany

Summary of the panel discussion at the Virtual German Lawyers' Convention on 19 June 2020 from 13:15 to 14:55 hours

Partic­ipants:

Dr. Michaela Balke, lawyer, Mannheim,
Peter Biesenbach, Minister of Justice of Nordrhein-Westfalen, Düsseldorf,
Prof. Dr. Beate Czerwenka, LL.M. (Duke Univ.), Head of the Directorate “Judicial System” in the Federal Ministry of Justice and Consumer Protection, Berlin,
Prof. Dr. Thomas Pfeiffer, University of Heidelberg,
Prof. Dr. Hanns-Christian Salger, lawyer, Frankfurt am Main,
Dr. Wilhelm Wolf, President of the Regional Court of Frankfurt am Main,
Dr. Werner Müller, lawyer, Frankfurt am Main, moderator.

1. The event started with a video message by the Minister of Justice of Hessen, Ms Eva Kühne-Hörmann. She expressed herself in clear favour of the creation of a Commercial Court in Germany.
2. Mr Salger summarised in a short presentation the questions which – in his view – are essential for the creation of a Commercial Court. A desirable element would be that the hearing could be held "in one piece".
3. Mr Biesenbach opened the discussion and announced a draft law for a Commercial Court for autumn 2020. Important elements of this draft would be in particular:
   1. the Commercial Court to be established at the Higher Regional Court (Oberlandesgericht/OLG),
   2. minimum value of amount claimed,
   3. agreement of the parties mandatory,
   4. English as possible language of the proceedings, including the judgment.

Mr Biesenbach added that in German substantive law, the review of general terms and conditions should be less rigid for the B2B sector. This would increase the attrac­tiveness of a Commercial Court in Germany for German as well as for foreign companies.

4. Ms Balke views the Commercial Court as a highly visible lighthouse, both internally (for the German judiciary) as well as externally (for foreign companies). For the judges, internationally recognized excellence is necessary - similar to the judges at some German patent courts.
5. Mr Wolf expressed himself in favour of the Commercial Court to be established at the Regional Court (Landgericht/LG). The judges at Regional Courts have the required experience and linguistic competence; many of them have spent time abroad. Ideally, the Commercial Court should be staffed with three professional and two commercial judges.
6. Ms Czerwenka was rather sceptical. She considers Law - Made in Germany mainly as an initiative on substantive law. If a German court is called upon in an international dispute, it can be assumed that the parties also wish German substantive law to be applied, the basis of which are German-language laws and judgments. With this background, it would be awkward if the judgment were to be in English. Besides, how should it work at the Federal Court of Justice (Bundesgerichtshof/BGH)?
7. Mr Pfeiffer expressed a certain preference for the Commercial Court to be established at the Regional Court (Landgericht), but he does not consider this question to be of crucial relevance. The Federal Court of Justice (BGH) has more and more become a consumer court. More cases that are important for the economy could be brought before the Federal Court of Justice (BGH) through the Commercial Court and by reintroducing an appeal based on the amount in dispute.
8. With regard to the Federal Court of Justice (BGH), Mr Wolf asked for patience. He does not see any problems that could not be solved.
9. Mr Biesenbach referred to the example of the Netherlands. The Netherlands Commercial Court operates with English in the first instance, but with Dutch before the Supreme Court of the Netherlands. An appeal based on the amount in dispute as mentioned by Mr Pfeiffer is already contained in the current version of the draft law for a Commercial Court in Germany.
10. Ms Czerwenka reiterated her doubts as to the requirement for the Commercial Court to hear the entire case in English, given that only German would be spoken in the Federal Court of Justice (BGH).
11. In the Commercial Court, the parties and the court should be allowed to agree on certain procedural rules. In Ms Balke’s view, the following agreements would be most desirable:
    1. early establishment of a procedural calendar,
    2. possibility of verbatim minutes and
    3. possibility of party experts.
12. Mr Salger considers a quick resolution of disputes in the Commercial Court to be of prime importance. With regard to the Federal Court of Justice (BGH), he asked whether an English-speaking cross-sectional senate could not be established there.
13. Mr Biesenbach called for support of the idea of a Commercial Court and the expected draft law "in every conceivable form".
14. Ms Czerwenka emphasized that all interested organisations - including, of course, the legal profession - will be involved after a draft law has been presented.
15. Mr Wolf stressed that it is high time to start the legislative process. There are many younger judges who inquire about a Commercial Court which would allow them to use the international experience which they have already gained.
16. Mr Pfeiffer underlined the idea that the judiciary must be attractive to the next generation of judges. This is another reason why a Commercial Court should be established soon.
17. Numerous questions and comments were received from the audience, including the following:
    1. Quick resolution of disputes, personal continuity for and specialisation of the judges are particularly important.
    2. Would it be possible to leave it to the federal states to establish the Commercial Court either at the Regional Court (LG) or at the Higher Regional Court (OLG)?
    3. Can experienced lawyers (Rechtsanwälte) also be appointed as judges at the Commercial Court?
    4. What should be the minimum dispute value?
    5. Arbitration proceedings illustrate that also with German law being applicable, it is not really a problem to conduct proceedings and write judgments in English.
18. Additional point raised subsequently by an outside participant: The ideal composition of three professional and two commercial judges as mentioned by Mr Wolf is unlikely to be possible if the hearing were to take place "in one piece" as suggested by Mr Salger. A businessman cannot be expected to attend a hearing lasting several days or even weeks.
19. As moderator, Werner Müller concluded the discussion by saying that he was pleased with the commitment of the panelists for an early establishment of an English-speaking Commercial Court in Germany.

Videos: