Interim Measures by Arbitral Tribunals and State Courts after the Constitution of the Arbitral Tribunal and their Enforcement in Germany

Arbitraż i Mediacja | 04/2016
Karl Pörnbacher, Lars Pütz

I. Interim measures available for arbitrations seated in Germany1. Concurrent competences of state courts and arbitral tribunals  Sections 10333 and 10414 of the German Code of Civil Procedure bestow concurrent competences on both state courts and arbitral tribunals to order interim measures of protection with respect to the subject matter in dispute. Hence, absent any differing agreement between the parties, the parties to an arbitration clause providing for arbitration seated in Germany are free to choose where to seek interim remedies. These parts of the German arbitration law correspond to Articles 9 and 17 et seqq. of the 2006 revised version of the UNCITRAL model law.  Irrespective of the arbitral tribunal’s seat, be it in Germany or abroad, German state courts are in principle competent for rendering interim measures before and after arbitration proceedings have commenced5. The jurisdiction of the respective German court is to be determined according to the general rules found in the Brussels Ia Regulation or the German Code of Civil Procedure6 and can consequently be in Germany – save for any express agreements between the parties on the jurisdiction of German courts.  While Section 1041 of the German Code of Civil Procedure is a non-mandatory provision, i.e. parties have the power to opt out of the arbitral tribunals’ concurrent competence to render interim decisions, it has been a matter of...