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The German Federal Court of Justice (“BGH”) recently decided that the application to set aside an arbitral award before a German state court is inadmissible if the applicant has already paid the amount stipulated in the award without reservations (BGH, decision of 26 October 2023, case no I ZB 14/23). The decision provides clarity on an issue that had been widely debated amongst scholars and arbitration practitioners in Germany. Factual Background The Claimant in the…

Arbitration proceedings are becoming increasingly complex.[1] Pleadings are getting longer. Written evidence and the taking of evidence in general are becoming more extensive. 100,000 pages of documentary evidence in a single arbitration proceeding? This is no longer uncommon. But does this mean that awards in arbitration must also become increasingly comprehensive? It is a nearly universal principle that, unless otherwise agreed, international arbitral awards must set forth the reasons for the tribunal’s decision.[2] The requirement…

The arbitrability of disputes concerning the validity and existence of patents has always been the subject of debate. Traditionally, the prevailing opinion among scholars and courts has been that such disputes are not arbitrable.[1] More recently, this view has been challenged, with some scholars finding that arbitral tribunals should be, and are, competent to decide disputes concerning the validity and existence of patents – at least with inter partes-effect by ordering one party to apply…

In a recent decision, the Higher Regional Court of Frankfurt defined the requirements and limits in which the losing party in an arbitration can defend itself against the arbitral award with counterclaims at the stage of enforcement proceedings in Germany.[1] Facts of the case: The Higher Regional Court Frankfurt had to deal with an application to declare an ICC award enforceable in Germany. The background to the dispute was a contract concerning the purchase of…