SECOND EA MEETING IN BERLIN: THE SEARCH FOR LANGBEIN’S GERMAN ADVANTAGE?
“Simplifying and where necessary shortening and streamlining the existing DIS Rules has been one of the main goals of the drafting process“, emphasized Daniel Busse (Allen & Overy), member of the Drafting Committee of the DIS Rules Revision process (“Redaktionsausschuss“, short “RA“), at the beginning of the second meeting of the Expert Committee (“Expertenausschuss“, short “EA“) in Berlin on 9 February 2017. “Some of the changes we discuss today are therefore not drastic contentwise“.
The purpose of the 9 February meeting was to discuss the current drafting version of §§ 21 to 31 of the new DIS Rules and the new Annexes 1 (“Expedited Proceedings“) and 2 (checklist for conduct of proceedings) in detail. This goal was achieved as the meeting took place in a very productive manner characterized by concrete suggestions from the audience such as to change the wording of § 22 (“Verfahrenssprache“) to potentially cover more than one language of the proceedings while not enticing participants to lead bi- or trilingual proceedings if not necessary.
Deletion of § 24.2 and new Annex 2 discussed in depth
The audience generally agreed to Daniel Busses’s introductory statement and only evaluated very few of the proposed changes to be particularly controversial. The deletion of § 24.2 of the existing DIS Rules was probably considered to be one of the more controversial changes besides the addition of a new Annex 2 summarizing potential methods to increase the efficiency of DIS proceedings. Annex 1 was discussed less intensively.
The current § 24.2 of the 1998 DIS Rules reads as follows:
“The arbitral tribunal shall undertake to obtain from the parties comprehensive statements regarding all relevant facts and the proper applications for relief.”
A majority of the participants pointed out that this regulation incorporated a key and important feature of German civil procedure law that may differentiate the DIS Rules from those of other institutions. Deleting it, some participants suggested, may scare off current users of the DIS Rules, but not – as envisaged – attract more international users. In this context, some members of the audience expressed the fear that the new DIS Rules may turn into a “lukewarm” version of already existing rules of international arbitral institutions without incorporating any special “German advantage”.
The search for a “German advantage”
On the other hand, as Rolf Trittmann (Freshfields), correctly clarified elements of the old § 24.2 are to be found in the new Annex 2 which currently inter alia includes the following two elements as part of a new checklist for participants in DIS proceedings:
Is it sufficient and appropriate to include these methods in an Annex? Are these references too hidden? Do we need to re-introduce the old § 24.2, maybe in an edited version? Are there other features of German civil procedure law such as regulations for default judgments we should not give up?
These questions will likely occupy the RA in an upcoming meeting as will the exact wording of Annex 2 which was praised for its general approach, but may need to be finetuned.
During the finetuning process, it will also need to be decided whether more details regarding document production need to be included. Currently, the proposed Annex 2 only mentions document production in the following short manner:
Use of English terms to be avoided?
Most of the participants further emphasized that the use of English terms such as “document production” should be avoided which was noted by the members of the RA participating in the meeting. Despite this general criticism of too much English legalese, there was common agreement that the term “document production” as such was clear and does not cover US style discovery.
New § 27.3 sent. 2 criticized
While the old § 24.2 may not be deleted in the end, the second sentence of the new § 27.4 may not survive. The new § 27 in general covers an efficient handling of the proceedings (“Effiziente Verfahrensführung“) and is thus an important new feature. However, specifying that the parties may at any time unilaterally or bilaterally make suggestions as to the conduct of the proceedings to the tribunal as currently specified in the second sentence of § 27.4 may have a boomerang effect and entice parties to employ delaying tactics.
Updated § 31 uncontroversial
The new § 31 covering settlements found general agreement. It was only discussed whether the change of the wording “Lage des Verfahrens” to “Phase des Verfahrens” was a good one, also considering that § 278 (1) of the German Code of Civil Procedure (Zivilprozessordnung) makes use of the expression “Lage des Verfahrens“. The practical relevance of this change may, however, be limited.
The next EA meeting will take place right before the DIS Spring Conference in Düsseldorf. More details will be published here soon.
Article by Alexandra Diehl, Clifford Chance Frankfurt