Journal Article

To what extent should arbitrators respect domestic case law? The German experience regarding the Law on Standard Terms

Klaus Peter Berger

in Arbitration International

Published on behalf of The London Court of International Arbitration

Volume 32, issue 2, pages 243-259
Published in print June 2016 | ISSN: 0957-0411
Published online December 2015 | e-ISSN: 1875-8398 | DOI: https://dx.doi.org/10.1093/arbint/aiv006
To what extent should arbitrators respect domestic case law? The German experience regarding the Law on Standard Terms

More Like This

Show all results sharing these subjects:

  • Arbitration
  • Company and Commercial Law
  • Competition Law
  • Employment and Labour Law
  • Settlement of Disputes

GO

Show Summary Details

Preview

International arbitrators are often confronted with the question of whether they should follow the case law of domestic courts of the jurisdiction whose law applies to the contract before them. The answer to that question will certainly depend on the nature of that legal system, eg whether it belongs to the civil law or the common law. This article explains that arbitrators dealing with contracts governed by German law must not necessarily follow the case law of the German courts because this case law has only a de facto, not a de jure precedential effect. Like German courts, arbitrators may deviate even from long-standing case law of the highest German court if they are convinced that the decision was wrong, or that the result reached by the higher court does not conform to the needs of international business.

Journal Article.  8835 words. 

Subjects: Arbitration ; Company and Commercial Law ; Competition Law ; Employment and Labour Law ; Settlement of Disputes

Full text: subscription required

How to subscribe Recommend to my Librarian

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content. subscribe or purchase to access all content.