Procedural flexibility

Litigation proceedings in Germany are mainly governed by the rules set out in the German Civil Procedure Code ("ZPO") and the German Act on the Constitution of the Courts ("GVG"). These rules are comprehensive and leave very few discretionary rights to the parties.

Arbitration proceedings in Germany are also governed by rules set forth in Sections 1025 et seq. of the ZPO, and / or by the applicable institutional or ad-hoc rules. However, arbitration proceedings are flexible. This is because most institutional and / or ad-hoc rules are; not comprehensive, they are not mandatory, entitling the parties to define and structure their proceedings. For example, the parties may choose their arbitrators, the place and the language for arbitration, the content and structure of the evidence taking. The only mandatory rules from which the parties cannot derogate are those which ensure fair and equal treatment, the right to be heard and the right to be represented by an attorney, Section 1042 ZPO.

Mediation, conciliation and expert determination proceedings offer the highest degree of procedural flexibility. It is entirely up to the parties to agree on the content and structure of the proceedings. This also applies to cases when the proceedings are administered by an institution. The rules provided by these institutions are neither comprehensive nor mandatory, allowing the parties and the mediator / conciliator / expert to structure and conduct the proceedings.