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German Trial Lawyers can give Testimony in their own Client’s Case

Lawyer being a necessary witness is not grounds for disqualification under German CPR

Can a trial lawyer in a civil lawsuit act as a witness for his or her own client? At first glance, the whole idea of lawyer testimony in his or her own lawsuit goes against the grain of what seems the right allocation of roles and responsibilities in a civil lawsuit.

However, what if the party’s lawyer is the only person who can give testimony about a specific fact. Must the client then drop that trial lawyer in order to be able to call him or her as a witness? This post explains the differences in civil procedure rules of Germany, the USA and other common law jurisdictions with regard to the issue of advocates acting as witnesses in the same trial.

What is the situation for U.S. trial lawyers?

The American Bar Association (ABA) Model Rule 3.7 prohibits a U.S. lawyer to act as advocate at a trial in which that same lawyer is likely to be a necessary witness. There are some exceptions to that rule, but the principle stands. Most states in the USA have adopted identical or similar rules for trial lawyers. The idea behind this rule is that the jury shall not be confused or prejudiced by a lawyer being also called as witnesses during trial. As a rule, the roles of acting as an advocate for one party and at the same time being a witness shall not be combined.

How about Solicitors and Barristers in England and the Commonwealth?

The civil procedure rules of England are even stricter in this regard. While lawyer testimony is not an absolute no go, Justice Humphreys of the English Court of King’s Bench has stated already in the 1941 case of R v Secretary of State for India, that to act as lawyer and witness in the same court case was „irregular and contrary to practice” and that:

“A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as counsel and witness in the same case.“

The situation in Canada is explained here, for Australia see GregCarter.com and Justinian.

I guess you get the picture: A lawyer taking the witness stand in his or her own court case is at least severely frowned upon if not outright prohibited in most common law jurisdictions. Now, if you are not yet familiar with civil litigation rules in Germany, you are in for a surprise.

German law has no problem with this dual role

German Civil Procedure Rules, in contrast, do not prohibit a litigation attorney to both act as trial lawyer and, at the same time, be a necessary witness of fact for his or her client in the same civil lawsuit. Nor is there a German rule of professional conduct (see here) against such behaviour. A German trial lawyer giving evidence by way of a witness statement is simply not regarded as a problem under German procedural law.

Why does German law take a very different view on this matter?

Reason number one: in German civil litigation, there is no jury that could be confused. Instead, a single German judge (or a judiciary panel of 3 to 5 judges) hears the witness (see section 373 ZPO) and then appraises the witness statement given by, in our case, the lawyer.

German law obviously trusts said judge (or the judiciary panel) to be perfectly able to evaluate whether the lawyer’s statement can be taken at face value or whether it must be doubted. Yes, the trial counsel of a party does have a vested interest in the outcome of the case and may be somewhat biased. But so do a plaintiff’s wife, children, business partners or friends, all of which can be called as witnesses in a German civil lawsuit.

Furthermore, keep in mind that a witness in a German civil trial is not being examined and cross-examined by the respective parties’ legal counsels (which would indeed make the situation a bit awkward). Instead, under ZPO rules, the German judge asks the witness the necessary questions. This significantly different approach to hearing witnesses makes the course of events in a German court room much less dramatic and aggressive. Some go as far as calling it outright boring (also see „Taking Evidence in German Civil Litigation“ and „Where is my Jury?„)

Is this common consent among German lawyers?

Yes, it is. The leading textbook on German civil procedure rules, the Zoeller Commentary to the ZPO, rather matter-of-factly states in the preamble to section 373 marginal number 6:

„Also ist als Zeuge zu vernehmen: (…) der Prozessbevollmächtigte, auch unter Fortdauer dieser Eigenschaft.“

which translates into:

„Therefore can be heard as a witness: (…) the trial counsel of any party, without this leading to said counsel being disqualified for the trial.”

German legal scholars see no reason to fight this. Still, in my experience as a litigation lawyer in Germany, not all German counsellors (or even judges) are aware of this and it sometimes triggers a heated debate when one party’s lawyer calls himself as a witness for his client’s case.

However, the German Federal Court of Justice (Bundesgerichtshof) has left no doubt here and has ruled numerous times, for instance by court order (Beschluss) VI ZB 80/06 of May 8, 2007, that a German Rechtsanwalt (trial lawyer) can be heard as a witness for his or her own client. The trial lawyer does not even have to leave his role as trial attorney for the period of time during which he or she is taking the witness stand. In other words: Even in higher German courts, where a client must be duly represented by a legal counsel (mandatory legal representation), the client does not have to bring an additional lawyer to the hearing. Instead, the trial lawyer / witness adopts a dual procedural role for the time of giving his witness statement.

Why would a trial lawyer even want to give a witness statement?

In the concrete BGH case cited above, the lawyer gave a witness statement to the fact that he himself had personally served certain documents onto the defendant. Other situations, in which a witness statement by one of the parties’ own lawyers may be necessary, are:

  • the legal counsel states that the other party has admitted to certain facts;
  • the legal counsel states that a settlement has already been agreed which the other party does not wish to honour anymore; or
  • the legal counsel states that certain documents had existed but have now been lost.

In spite of the German Code of Civil Procedure being rather liberal in this regard, it is, of course, far from ideal if the trial lawyer of one party actually has to take the witness stand for his or her client. For the court as well as the parties, this is an awkward situation which should be avoided if at all possible, e.g. by having other persons serve documents or by having paralegals or junior lawyers attend meetings or phone conferences so that these persons can later be a witness in the trial. However, be careful not to put someone on speaker phone without telling them first, see the post: „Putting someone on speaker phone without telling them“

But if you as the trial counsel are the only witness available to prove a certain fact, do not hesitate to name yourself as a witness in your brief (Schriftsatz) to the court. In many cases, the other party will not dispute the fact anyhow which means that an actual witness statement will not be necessary.

Related posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

Know Your Way around German Civil Courts

At which Court to file a civil or commercial lawsuit in Germany

In case you need to litigate in Germany, one of the first tasks is to know your way around German Civil Courts (ordentliche Gerichte). The below chart shows you at one glance which is the correct civil court for your claim against a German defendant, how many judges will hear your case and what your options for appeal are should you lose the lawsuit.

Finding the right German court or tribunal for your specific legal matter is tricky, because Germany has installed various specialised courts for certain areas of law, inter alia:

Chances are, however, that your case will not be heard by any of the specialized German courts listed above, because you will most likely want to make a civil or commercial claim against a German defendant. Or you may be involved in German probate matters (be it a contentious probate case or merely an application for a German grant) or a German family law case (divorce, child custody, alimony or child support etc).

The German Court System: Ordinary Courts

 In all these matters, the so called “Ordentliche Gerichtsbarkeit” (ordinary courts of law) have jurisdiction. Unlike the USA, the German court system does not have two parallel sets of courts (federal and state courts). 

The German ordinary courts of law are a four tier structure, but you will most likely only have to deal with two of those tiers. Depending on the area of law and the value of your claim, the entry trial court will either be the Amtsgericht (Local or Circuit Court, of which there are 638 throughout Germany) or the Landgericht (High Court, of which there are 115). 

At the Amtsgericht level, the parties are allowed to represent themselves if they wish to do so. Although, take my word on this, acting as your own counsel is hardly ever a good idea, much less in a foreign country. Before all other German civil courts (Landgericht, Oberlandesgericht, Bundesgerichtshof), the parties must turn the case over to an attorney, because section 78 German Code of Civil Procedure states that beyond the German Circuit Court level, each party must be duly represented by a counsel which is licensed to practice as a German trial lawyer (Rechtsanwalt). At the Bundesgerichtshof (Federal Court of Justice), special rules apply with regard to legal counsel (for details see the website of the Bar at the Federal Court of Justice).

On the Landgericht level, the cases are usually being heard by a panel of three judges. Nowadays, however, mainly due to low staffing of courts, the three judge panel (Kammer) sometimes rules that cases shall be heard and decided by a sole judge (Einzelrichter). This transfer of a civil case from the full judicial panel to a single judge is expressly permitted by s. 348 German Code of Civil Procedure. Up until the 1990s this transfer to a single judge was rather the exception, these days it is the standard approach, especially in larger German cities. In other words, if you as the claimant prefer your case to be heard and decided by the full judicial panel, you will need to demonstrate reasons why this is necessary. Whether to make this application or not is an important strategic decision, because such an application may make you unpopular with the court from the outset for causing additional workload.

Special Juducial Panels for Commercial Disputes

In commercial and corporate disputes, the Landgericht sometimes decides in the shape of the so called Kammer für Handelssachen (Judicial Panel for Commercial Disputes), s. 93 GVG. The specific characteristic of the Kammer für Handelssachen is that two lay judges (Laienrichter) are added to the judicial panel of three professional judges. These lay judges are business owners or company directors which must be recommended for this job by the local chamber of commerce. The idea behind this statute is that the lay judges shall provide the professional judges with practical knowledge about actual business life, commercial habits and customs.

The German Court System at a Glance

This chart shows at one glance which German civil court has jurisdiction, i.e. which court to file your petition with, which court is the court of appeal, how many judges will hear the case and whether you must have a German lawyer to represent you in court or whether you can represent yourself (which, again, is not a good idea):

Chart German Court System Civil and Commercial Litigation

Venue: Where to sue in Germany?

Once you have identified the right kind of court for your claim (i.e. which German court has subject-matter jurisdiction), you will then have to sort out where to sue, i.e. which court has venue. The German term for legal venue is “örtliche Zuständigkeit”, see section 12 to section 40 German Code of Civil Procedure.

The rules of thumb are that a civil or commercial lawsuit can be filed:

  • where the defendant lives (Wohnsitz) or does business (Geschäftssitz); or 
  • where the dispute originated (e.g. the place of an accident in tort cases or the place where a contract was entered into or violated). 

However, there are many important exceptions to these rules of thumb. In the German Code of Civil Procedure, no less than 40 statutes deal with the matters of jurisdiction and venue. Thus, both jurisdiction and venue must be thoroughly assessed in each case, because filing your lawsuit with the incorrect German court may cost you dearly. 

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

German Laws relating to Civil Litigation

Statutes and regulations you should be aware of in case you plan to file a lawsuit in Germany

German civil law is based on the tradition of Roman law and is characterized by its codified system of legal provisions, i.e. statutes (Gesetze). This means that pretty much everything is written down in black letter law, including the rules concerning German Civil Litigation.

This is true for both the substantive laws (e.g. German Civil Code, German Commercial Code etc.) as well as the forensic procedural rules (Code of Civil Procedure, Labor Court Procedure Rules, Procedure Rules for Family Matters and Non-contentious Jurisdiction etc). More information on German law and the German legal system in general can be found in the official brochure “Law – Made in Germany”, published by the German government in cooperation with the German bar association (Bundesrechtsanwaltskammer). It is essentially a marketing brochure by German jurists, praising the advantages of the codified German legal system in comparison to the “not so easy to understand” common law system with its thousands of (sometimes medieval) precedents.

German Law Online

On the official German government website Gesetze im Internet, provided by the Justice Department (Justizministerium), you are able to access all German laws (Gesetze) and regulations (Verordnungen) relevant in the context of civil and commercial law claims and how to litigate in Germany. In addition to federal legislations available on Gesetze im Internet, you can research the various laws and regulations of the 16 individual German states (Bundesländer) on this website here: Justiz.de/bundeslandesrecht

The most essential German federal laws and procedural codes are even available in English language, see this list. While I am not always entirely happy with the quality of the translation and the English terminology used for certain German technical legal terms, these German statutes in English language will at least give you a basic understanding of the respective German law.

The German laws and procedure rules you will most likely be faced with when you make a civil court claim in Germany are these:

Bürgerliches Gesetzbuch(BGB)  /  German Civil Code

The BGB is the core of German civil law and the pride of German jurists. It is a compendium of five “books” which regulate the central areas of German civil law: the law of persons and property (Sachenrecht), German contract law (Vertragsrecht) including consumer protection rules (Verbraucherschutz), the German law of tort (unerlaubte Handlung), German family law (Familienrecht) and German rules of succession and probate. More background on the German Civil Code on Wikipedia.

Please note that in some areas of law, these ZPO rules do not apply. German family law matters, for instance, as well as non-contentious probate proceedings, are governed by the FamFG procedure rules (see below), which are very different in nature. German labor law courts also have their own specific set of procedure rules (see ArbGG below).

BGB German Version / BGB English Version

Handelsgesetzbuch (HGB)  /  German Commercial Code

The contractual relationship between merchants as well as any remedies available in business to business trade are regulated by the German Commercial Code. The Commercial Code closely interacts with the general legal principles contained in the German Civil Code. Thus, the two need to be studied together in order to understand the relationship between merchants under German law.

HGB German Version / HGB English Version (only available for parts of the Commercial Code)

Zivilprozessordnung (ZPO)  /  German Civil Procedure Code

The ZPO contains the rules dealing with „real“ German Civil Litigation. Whether you need to file a monetary claim, a tort claim or a petition for preliminary injunction: In case you (or your client) needs to go to court in Germany in a matter that is not regulated by a more specific procedure code (like labor law, family law, contentious probate etc.), the rules of civil procedure are what you need to adhere to. The principles of the ZPO are the main topic of this blog.

ZPO German Version  / ZPO English Version


Arbeitsgerichtsgesetz (ArbGG)  /  German Labor Court Procedure Rules

Forensic disputes between employer and employees in Germany are regulated by specific procedural rules. One main difference from the normal German Civil Procedure Rules are that the focus of the court is even more on trying to reach a settlement. Also, in German labor law disputes, each party must bear the costs for their own legal counsel, regardless of the outcome of the lawsuit. Thus, even if you win the case, you must still bear your own lawyer’s legal fees. This is an exception from the general principle under German procedural law that the party which prevailed, is reimbursed for their reasonable legal costs. The idea behind this exception is that an employee shall not be deterred from filing a labor lawsuit out of fear to have to bear the employer’s legal bills. Note: in labor law cases, a party does not have to be represented by a legal counsel.

The text of the ArbGG (German Labor Court Procedural Rules) is only available in German


Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG)  /  Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction

Long title, indeed. The FamFG is of practical importance, because its procedural rules do apply in all German family law matters (Familiensachen) as well as in German non-contentious probate matters (Nachlassverfahren), unless and until a party opts for the contentious probate route and escalates this to the High Court level (more in this post). The procedure rules of the Fam FG are quite different from those of the Zivilprozessordnung (ZPO) which govern regular civil litigation. ZPO procedure rules are more confrontational in nature. The parties, for example, are named plaintiff (Kläger) and defendant (Beklagter). Whereas, under der procedural regime of the FamFG, the procedural approach and the terminology are less aggressive. Here, the parties are called applicants (Antragsteller) or participants (Beteiligte).

FamFG German Version / FamFG English Version


Gerichtsverfassungsgesetz (GVG)  /  German Courts Constitution Act

The GVG lays out the German court system, i.e. how German courts are organised, how judges are appointed and regulates how German courts

GVG German Version / GVG English Version


Gerichtskostengesetz (GKG)  /  German Court Fees Act

The fees to be paid to the court in German (contentious) forensic matters are regulated in the Gerichtskostenkostengesetz (Court Fees Act).  The GKG tells you how much and when to pay in court fees, advancements for court appointed experts and other costs related to a German court case (e.g. costs for serving court papers in the USA or for having German court orders translated into English). For information on lawyer fees in Germany, please see the post How to retain a German lawyer.

An interesting aspect of German court fees is that they are drastically reduced if the parties do settle. This court fee reduction is meant as an incentive for the parties to end the legal dispute without need of a court order. Thus, German judges will always promote a settlement. In gact, they are under the legal obligation to do so, see the post: How to settle a German lawsuit.

The text of the GKG is only available in German and it is certainly a complicated read, even for German lawyers. But in case you feel up for it, here you go:

GKG (main body) | GKG cost table 1 | GKG cost table 2


Gesetz über Kosten der freiwilligen Gerichtsbarkeit für Gerichte und Notare (GNotKG)  /  German Court Fees Act in Non-Contentious Matters

In non-contentious German court matters (see FamFG above), the court fees are usually significantly lower compared to “real” lawsuits. Thus, there is a specific court fees act for such family law and probate matters. Some of those are being dealt with by German civil law notaries

GNotKG

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

How to challenge a Will in Germany

Short guide to contentious probate procedure under German law

German succession laws as well as probate procedure are very different from those of Common Law jurisdictions. This is mainly due to the fact that German inheritance law does not know a personal representative. Instead, all rights and obligations of the decedent are automatically transferred onto the heir (successor) or the community of heirs, if more than one. My separate blog Cross Channel Lawyers explains the details of German inheritance law, German non-contentious probate, contentious probate (i.e. the rules on how to challenge a will), as well as German gift tax law in dozens of posts (see here).

Non-contentious German Probate (Erbscheinverfahren)

If no one does challenge a will, the standard approach to obtaining German probate is the non-contentious probate procedure, the so called Erbscheinsverfahren (section 2353 German Civil Code). This non-contentious probate (more) takes place at the German Amtsgericht (Circuit Court) in the city or district where the decedent had his or her last place of residence. The rules of procedure for this standard, i.e. non-contentious probate, are those of the FamFG, which is short for “Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit”, i.e. the German Act on Proceedings in Family Matters and in Matters of non-contentious Jurisdiction. More on the various German procedure rules in the post: German Statutes relating to Civil Litigation

Contentious Probate in Germany (Erbenfeststellungsklage)

But what if someone considers an existing will to be invalid, for example by challenging the testator’s legal capacity or disputing that the will was written in the testator’s own hand? Then, anyone who has a legitimate interest in this inheritance matter (the Fam FG calls them „Beteiligte“, i.e. participants) can inform the German probate court (Nachlassgericht) that there are doubts about the validity of the will. Participants (Beteiligte) are (i) the persons mentioned in the will(s) as beneficiaries; as well as (ii) those persons (relatives and spouse) who would benefit under German intestacy rules (for details about rules of intestacy see this post).

To formally challenge a will is, however, not without financial risk, because the court may later on burden the person(s) raising these issues with legal costs. In addition to probate court fees, there may be significant fees generated by experts, e.g. for medical reports by psychiatrists (assessment of the testator’s mental capacity).

Thus, anyone who considers whether to challenge a German will should make it absolutely clear to the probate court, whether (i) one only wants to make the court aware of certain facts and leaves it up to the German probate court whether or not to pursue this; or (ii) the applicant wants to actively block the German probate procedure, i.e. prevent the court from issuing a German certificate of inheritance until the matter has been clarified. While German probate procedure rules do not use the term „stop notice“ (caveat), an application to the German probate registry to isue a grant based not on the (disputed) will but instead on instestacy rules (or a prior will) does have a similar effect.

On what grounds can a German will be challenged?

It is possible to challenge the validity of a German will based on the following grounds:

  1. Formal requirements for Wills were not observed, see section 2231 German Civil Code
  2. Lack of testamentary capacity, see section 2229 German Civil Code
  3. Other legal grounds like undue influence on the testator by a third party or misapprehension on the testator’s part at the time the will was made.

Two Procedural Routes

The parties involved in a German contentious probate case do have a choice whether they wish to, at least for now, leave this with the Probate Court at the Amtsgericht level (Nachlassverfahren) or whether they want to immediately escalate this to the Landgericht level (High Court) by filing an actual civil lawsuit in the form of a Erbenfeststellungsklage (petition for a declaratory judgment on who is the heir).

Those two procedures have very different rules, for example with regard to taking evidence and as to costs. Since any decision by the probate court (Amtsgericht, Nachlassgericht) is not binding (ohne Rechtskraft) and can be appealed even years later, we sometimes recommend to use an aggressive approach, i.e. skip this Amtsgericht stage and file with the Landgericht (High Court) right away. This speeds up the inheritance case and means that the more formal procedural rules of the ZPO do apply instead of the “softer” FamFG procedure rules.

Thus, the pros and cons of these two probate procedures should be assessed diligently and discussed with the client before making the decision which route to take. More information in the post: Disputed Wills and Contentious Probate in Germany

Related posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

“Show me the Money!” German Defendants demand Security

U.S. Plaintiffs must post security for the other party’s legal costs when suing in Germany

The German Code of Civil Procedure (Zivilprozessordnung) rules in section 110, that any claimant (plaintiff) from outside the European Union (EU) or the European Economic Area (EEA) who initiates a civil lawsuit in Germany, must not only pay in the court fees (details here), but must also provide security (Sicherheitsleistung) for the legal fees of the defendant. Depending on the value of the lawsuit, these costs can be steep. The idea behind this is, of course, that a foreign claimant shall not be able to file a lawsuit against someone in Germany and then, later, after having lost the case, dodge the defendant’s legal cost refund claim.

Who must post security for costs in German civil litigation cases?

According to section 110 para. (1) ZPO, plaintiffs who do not have their habitual residence (or business seat in case of the plaintiff is a company or corporation) within an EU or EEA member state, must provide a security deposit — if the German defendant in the lawsuit so demands. Sometimes the German defendant’s lawyer is not even aware of this statute, especially if the defendant’s lawyer does not carry out much international work. But if the defendant is represented by a German counsel worth his or her salt, that request for the plaintiff to provide security will be the first thing the defendant’s lawyer will submit to the court.

Section 110 Para. (2) ZPO grants some exceptions to this rule of having to provide security, e.g. if the foreign plaintiff owns real estate within Germany or if there are certain international treaties in place which grant foreign plaintiffs an exemption from this obligation. Now, one would hope that there is such an agreement between the USA and Germany. And there is: the Treaty of Friendship, Commerce and Consular Relations between Germany and the United States of America from 1954.

 

Friendship Treaty between USA and Germany 1954

Friendship Treaty between USA and Germany of 1954

 

However, that agreement does not help to get rid of the obligation to pay legal cost security. In principle, the 1954 Treaty does guarantee U.S. nationals and U.S. companies fair and equal access to German courts, and vice versa, see article VI para. (1) of the Treaty:

Nationals and companies of either Party shall be accorded national treatment with respect to access to the courts of justice and to administrative tribunals and agencies within the territories of the other Party, in all degrees of jurisdiction, both in pursuit and in defense of their rights. It is understood that companies of either Party not engaged in activities within the territories of the other Party shall enjoy such access therein without any requirement of registration or domestication.

Sound promising. However, the protocol annexed to the Treaty clarifies in section 6 that this article VI of the Treaty does not grant a full exemption from the obligation to post security for legal costs of the other party. This is the complete wording of section 6 of the protocol, which is rather similar to section 110 para. (1) of the German Civil Procedure Code:

With reference to Article VI, paragraph 1, nationals and companies of either Party appearing as plaintiff or intervening party bevor the courts of the other Party shall be exempt from obligation to post security for costs in such instances as nationals or companies of the other Party would be exempt; exemption, however, is only granted if: (a) the nationals have their permanent residence or the companies their establishment (main or branch), or (b) the nationals or the companies have sufficient real property to cover costs, in the territory of that Party before the courts of which the suit is pending.

 

The complete Treaty with protocol in a bilingual (English-German) version is available for download here: Friendship Treaty USA Germany (Bundesgesetzblatt)

So, when it comes to the obligation of having to post security, there is no exception for U.S. plaintiffs in Germany, nor for German plaintiffs in the USA.

How is the security deposit calculated?

As we have explained in the post “How expensive is a German Lawsuit?”, legal fees in Germany are based on the value of the specific lawsuit. Thus, the actual amount of the security to be posted, depends on the claim itself. Section 112 para. (1) German Civil Procedure Code gives wide discretion to the court.

How is the security made?

In most cases, the plaintiff will either transfer the amount set by the German court onto the court’s fiduciary account or will arrange for a first class bank guarantee issued by a German bank. The requirements are detailed in section 108 ZPO.

Related posts:

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

Copyright & Disclaimer All posts are copyrighted material. This blog is made available by Graf & Partners for educational purposes as well as to give you general information on German law, not to provide specific legal advice. Simply reading this blog does, of course, not result in any attorney client relationship between you and Graf & Partners. The blog should not be used as a substitute for competent legal advice provided by a licensed professional attorney in a specific legal matter.

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