Serving a punitive damages writ in Germany

The German Bundesverfassungsgericht (Federal Constitution Court) recently decided that a German court could refuse to serve process in an American case where punitive damages were claimed. There was a time when such service was routinely refused in Germany; later, there was a change in the other direction; this present case relates only to a preliminary injunction and its effects are not clear.

There is an article on this subject by Bettina Friedrich in the new edition of the German Law Journal:

bq. … From the perspective of a German-trained attorney (and her clients), the most perplexing elements of American Procedural law are pre-trial discovery, disclosure of documents, written witness-statements followed by cross-examination, class-action suits and punitive damages. … From the perspective of an American-trained attorney, the perplexing element is that German Procedural Law is not familiar with these elements. …

bq. [3] For the German-trained lawyer, the ideas related to these elements often stem from novels like Jonathan Carr’s “A Civil Action,” movies like “The Pelican Brief” and “The Firm,” or Court TV. Their unfamiliarity renders them inherently suspicious. This suspicion influences debates about service of judicial documents and recognition of foreign judgments, particularly when punitive damages are at stake. The inconsistent fear of “Americanization of procedural rules” is used as a “striking argument” in debates related to the (new) Sec. 142 (3) Zivilprozessordnung (German Civil Procedure Code – ZPO). … It is a permanent topic in International Arbitration, particularly in discussions related to the ICC Rules. It is of particular interest if the ICC Rules provide for disclosure of documents in an “American style.”

The German Law Journal has been online for four years now and is still looking for funding so it can remain free of charge. It would also like to introduce a paper edition.

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