October 24, 1997, Geneva, Switzerland
The Revision of the Arbitration Rules of the German Institution of Arbitration
Professor Karl-Heinz Böckstiegel
Chairman, German Institution of Arbitration (DIS)
1. The German Institution of Arbitration (DIS)
The German Institution of Arbitration is normally named by its abbreviation "DIS", coming from its German name "Deutsche Institution für Schiedsgerichtsbarkeit." After the reunification of Germany, the membership of the DIS now includes the representative organizations of industry and commerce in Germany, the Chambers of Commerce in the various regions of Germany, the organizations of the German legal community, including the German Bar Association, as well as many practitioners and academics dealing with national and international arbitration in Germany and also a considerable number of members from outside Germany.
The address of the German Institution of Arbitration is:
Deutsche Institution für Schiedsgeerichtsbarkeit
Attn. Mr. Jens Brewdow, Secretary-General
2. The Present DIS Arbitration Rules
The presently valid DIS Arbitration Rules of January 1, 1992, are applicable both to national and international arbitrations. They are available in English, French and German versions in the well-known yellow brochures of the DIS and follow, on all major aspects of the arbitral procedure, the modern trend of arbitration as it is found also in the rules of other national and international arbitral institutions.
3. The New German Arbitration Act Based on the UNCITRAL Model Law
A revision of the DIS Rules has become necessary and is presently developed for two reasons: a fundamental and radical change of the arbitration law in Germany is expected to take place by the end of this year; and, secondly, in adapting the DIS Rules to this new legal environment in Germany, it is considered appropriate to also update some other sections of the Rules to most recent developments.
By a Bill presently before Parliament in Germany, the 10th Book of the Civil Procedure (ZPO), which contains the German Arbitration Law, is being fully replaced by a new text based on the UNCITRAL Model Law on international commercial arbitration. The practical relevance of this development is considerable. Germany has a long tradition of arbitration, which today is used widely in the practice of industry and commerce in their business relations and contracts with both German and foreign private and public enterprises.
The fundamental approach of the New Act is that the UNCITRAL Model Law should be adopted in Germany and that changes to provisions of the Model Law should only be accepted in cases where this is considered absolutely unavoidable in view of the German legal and institutional framework.
The New German Act incorporates the Model Law not only for international arbitrations, but also for national arbitrations.
Different to the UNCITRAL Model Law, the New German Act does not restrict its application to "commercial" arbitration, but covers all arbitrations in Germany.
4. The Revision of the DIS Rules
The revision of the DIS Rules has been started, but will only be finalized once the New German Arbitration Act has come into force. The DIS Rules will continue to provide for an administered arbitration. The DIS will particularly assist in the appointment of arbitrators if a respondent party does not appoint an arbitrator, or if the parties cannot agree on a sole arbitrator or a chairperson.
It was felt that, in order to make the DIS Rules understandable by themselves, also to readers and users outside Germany, some major decisions of the New German Arbitration Act should be repeated in the DIS Rules.
In view of the growing importance of conciliation and mediation, there is also an intention to develop and offer separate rules for these kinds of alternative dispute resolution.
As far as the conduct of the arbitral procedure is concerned, unless the parties have agreed otherwise, the arbitral tribunal shall conduct the proceedings at its own free discretion within the limits of mandatory law which only requires that both parties be heard and treated equally.
Regarding the default of a party, an updating will become necessary in view of the new §1048 of the New Arbitration Act, which permits the arbitral tribunal to continue the procedure if the respondent fails to communicate, or if any party fails to appear at an oral hearing without satisfactory explanation.
Similarly, in case of a truncated tribunal, agreement was reached that the two remaining arbitrators should be authorized to continue the procedure if one arbitrator stops participating without a valid explanation.
No final agreement could yet be reached regarding the question how the arbitral tribunal should proceed to decide on the applicable substantive law. But, irrespective thereof, a majority seem to favor the applicability not only of "law," but also of "rules of law."