1. Is there an exequatur procedure?

Yes. Recognition of a foreign judgment takes place automatically as long as the requirements are met and no grounds for refusal are invoked. Execution can be sought based only on a court declaration of enforceability (exequatur).

Exequatur will be issued by the local court at which the person against whom enforcement is sought has its general place of jurisdiction. If there is no general place of jurisdiction, the court within the jurisdiction of which assets or property of the person are located will be competent.

The exequatur procedure has no significant procedural features.

2. What are the applicable statutes?

2.1 Recognition in general civil matters

Section 328 of the Code of Civil Procedure governs the recognition of judgments handed down by a foreign national court in general civil matters:

2.2 Enforcement in general civil matters

Sections 722, 723 and 794(1)(1-9) of the Code of Civil Procedure govern the enforcement of judgments handed down in general civil matters:

2.3 Special civil matters

Special rules apply for certain civil law matters. For example, Section 107 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction governs decisions in matrimonial matters, and Section 108 applies to decisions concerning other aspects of family law. Further, Section 343 of the Insolvency Code provides the basis of the recognition of decisions to open insolvency proceedings.

2.4 Arbitral awards

The recognition and enforcement of judgments handed down by a foreign arbitral court are governed by Section 1061 of the Code of Civil Procedure in conjunction with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

§ 1061 Ausländische Schiedssprüche§ 1061 Foreign arbitration awards
(1)    Die Anerkennung und Vollstreckung ausländischer Schiedssprüche richtet sich nach dem Übereinkommen vom 10. Juni 1958 über die Anerkennung und Vollstreckung ausländischer Schiedssprüche (BGBl. 1961 II S. 121). Die Vorschriften in anderen Staatsverträgen über die Anerkennung und Vollstreckung von Schiedssprüchen bleiben unberührt.(1)    The recognition and enforcement of foreign arbitration awards is governed by the Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards (published in Federal Law Gazette Bundesgesetzblatt, BGBl.) 1961 II page 121). The stipulations of other treaties concerning the recognition and enforcement of arbitration awards shall remain unaffected hereby.
(2)    Ist die Vollstreckbarerklärung abzulehnen, stellt das Gericht fest, dass der Schiedsspruch im Inland nicht anzuerkennen ist.(2)    Insofar as the declaration of enforceability is to be denied, the court shall determine that the arbitration award is not to be recognised in Germany.
(3)    Wird der Schiedsspruch, nachdem er für vollstreckbar erklärt worden ist, im Ausland aufgehoben, so kann die Aufhebung der Vollstreckbarerklärung beantragt werden.(3)    Where the arbitration award is reversed abroad, after having been declared enforceable, a petition may be filed that the declaration of enforceability be repealed.

3. What are the important judicial precedents?

Germany does not use a common law model, thus, “judicial precedents” do not apply. German law is based on statutory law. 

Nevertheless, court rulings play an important role insofar as they concern the interpretation of a specific statute or simply a wording within a statute. There are numerous decisions in this regard – each of them relating to a very specific subject matter.

4. Does the exequatur procedure mean that the case must be retried on the merits?

Under Section 723(2) of the Code of Civil Procedure, foreign judgments must be declared enforceable if they are:

  • legally binding and enforceable in the state of origin; and
  • recognisable under Section 328 of the code.

Section 328(1) of the Code of Civil Procedure provides that foreign judgments are automatically recognised, except where one of the following grounds for refusal applies:

  • the foreign court was incompetent under German law;
  • the document by which the proceedings were initiated was not duly served on the defendant or in such time to allow the defendant to defend itself;
  • the judgment is incompatible with a previous judgment issued or a foreign judgment previously recognised in Germany;
  • the recognition is incompatible with fundamental principles of German law, especially fundamental civil rights;
  • reciprocity is not granted (i.e., the state of origin does not recognise German judgments under the same conditions under which Germany recognises judgments deriving from that state).Beyond that, the German courts cannot review foreign judgments on their merits. Under Section 723(1) of the Code of Civil Procedure, a so-called ‘revision au fond’ (i.e., a review of the substance of an arbitral award) is prohibited.

5. How long does the exequatur procedure take?

The typical timeframe for the proceedings to grant enforcement is four to seven months.

6. Is the opponent given the opportunity to challenge the exequatur?

Yes. The defendant may appeal the decision regarding the enforceability of a foreign judgment. During the enforcement proceedings, the defendant is entitled to general remedies against enforcement measures under German law. However, German law generally does not provide for an injunctive relief or anti-suit injunction against the recognition or enforcement of a foreign judgment.