Commercial courts have already been discussed twice in this blog (part 1 on commercial courts in general, part 2 on implementation in the federal states). Practical experience with commercial courts shows that it is worth paying attention to some very practical features of commercial courts.
Pitfall 1: Court costs
The first pitfall can be expensive. Proceedings before the Commercial Court are proceedings before a senate of the Higher Regional Court (OLG). In the absence of any cost privileges, the full court fee pursuant to No. 1212 Annex 1 to the Court Costs Act applies, which in OLG proceedings means a 4.0 fee and not a 3.0 fee as in the first instance before the Regional Court (LG). Anyone who overlooks this will quickly find themselves underestimating the costs by a third. A case with a value in dispute of €2 million can easily cost €10,000 more than you might think.
Pitfall 2: Revision instead of appeal
The legal remedy against a judgment of the Commercial Court is not an appeal, as is otherwise the case against first-instance judgments, but a revision to the Federal Court of Justice (BGH) as per section 614 (1) ZPO, which, however, does not require leave to appeal. The significant difference is that in a revision, only violations of law are examined (Section 545 (1) BGB), whereas in an appeal, it is also examined whether the established facts justify a different decision. The parties should therefore be aware that the opportunity to discuss facts and interpretations is limited, which is absolutely intentional on the part of the legislature and speeds up the proceedings.
Pitfall 3: Federal Court of Justice lawyer
Federal Court of Justice proceedings require representation by a lawyer admitted to the Federal Court of Justice. This means that the legal representative from the first instance cannot appear in court; instead, a lawyer admitted to the Federal Court of Justice must represent the party (Section 78 (1) sentence 3 ZPO). This increases the costs compared to regular two-instance proceedings before the regional court and higher regional court.
Pitfall 4: Different implementation in the federal states
The implementation of Commercial Courts is a federal patchwork quilt. Section 119b of the Courts Constitution Act (GVG) only contains a regulatory authorisation to establish commercial courts, which the federal states have then implemented or intend to implement in very different ways within the scope of the regulatory authorisation. First of all, it must be taken into account that not every federal state has established a commercial court, which must be considered when agreeing on the place of jurisdiction. Agreements on the place of jurisdiction should also take into account that the (expected) dispute falls within the subject area for which the commercial courts have jurisdiction. Finally, special features must be taken into account, such as Saxony’s special approach of only wanting to decide disputes under German law and in German.
Pitfall 5: Language
Section 184a (1) sentence 1 no. 2 GVG authorised the federal states to also allow English as the language of proceedings. The pitfall here may be, on the one hand, to overlook restrictions on the German language, as in Saxony, and, on the other hand, to overlook the detailed regulations on the chosen language of proceedings. Section 184(3) GVG regulates the extent to which the choice of language can be overridden or interpreted. However, the parties’ desire to hear witnesses in English when German is the language of the proceedings could be problematic, for example.
Conclusion
Proceedings before the commercial courts offer opportunities for efficient proceedings, but also risks for unprepared litigants. Higher costs due to the 4.0 fee before the Higher Regional Court, direct appeal to the Federal Court of Justice without a court of fact, the obligation to have a Federal Court of Justice lawyer, and the federal patchwork of jurisdiction and language regulations require careful planning. Companies should review jurisdiction and language clauses at an early stage, calculate costs realistically and tailor their litigation strategy to the specific features of the commercial courts. By taking these points into account, you can avoid expensive surprises and make the most of the advantages offered by the new courts.
