The language of the proceedings in arbitration

By Dr Jiri Jaeger, Michael Zavodsky

09-2019

The following elaboration by our Partner Dr. Jiri Jaeger and Counsel Michael Zavodsky, both members of our international practice group Dispute Resolution, on the subject of the language of proceedings in arbitration deals with procedural issues and provides useful and practical advice on the wording and drafting of the corresponding arbitration clauses in contracts.

The decisive provision in German law is Section 1045 ZPO. Accordingly, the language of the proceedings is largely based on the will of the parties and is not fixed as in ordinary jurisdiction. Against this backdrop the authors will in a first step describe the significance of the language of the proceedings. In addition, the legal framework provisions are dealt with in order to finally point out practical problems when it comes to drafting of arbitration clauses. In this context it is important that legal interests on a constitutional level must be taken into account by the tribunal as well. Moreover, a focus here lies on the presentation of various factors that should be considered when defining the “correct” language of the arbitration. At the same time, chances and risks will be identified in relation to the determination of a more or less sophisticated wording of an arbitration clause/agreement. The authors will also identify the pros and cons of flexible clauses which differentiate between the language of the arbitration itself and the language of evidence. Finally, they will elaborate upon the legal consequences, if the parties to the arbitration or the arbitrators do not respect the language of the arbitration.

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