1. at first instance

In proceedings before the Commercial Court, the parties must be represented by a lawyer. The statement of claim and all other pleadings must be submitted electronically – as is customary in the courts – and the Commercial Court will also communicate with the parties exclusively in this way. In addition to the general requirements for substantiating the claims, the statement of claim must contain the necessary information to substantiate the jurisdiction of the Commercial Court. Either a corresponding agreement between the parties is already set out when the action is filed or the application to conduct the proceedings at first instance before the Commercial Court must be submitted with the statement of claim so that the defendant can agree to this (expressly or without objecting to the jurisdiction of the Commercial Court). The statement of claim must also state whether the proceedings are to be conducted entirely in English (§ 606 ZPO).  This determination of the language of the court must also be made by mutual agreement, either by express or tacit agreement or by the defendant(s)‘ unrepentant defence to the application in the statement of claim to conduct the proceedings in English (§ 184a (3) GVG). The parties can withdraw from conducting the proceedings in English by mutual agreement (§ 184a (5) GVG).

If the English language is determined as the court language in this way, the parties can submit English-language documents without having to provide a translation into German (§ 184a (3) no. 2 GVG). The court may call in interpreters or translators at any time. Special provisions apply to the involvement of third parties, in particular to the third party notice, if English is determined as the court language (§ 607 ZPO). The third party has the option of objecting to the service of an English-language pleading within 2 weeks; however, the subsequent timely service of the English-language pleading together with a translation into German for questions of the statute of limitations will have effect back to the original service of the English-language pleading (§ 607 (2), (3) ZPO). The Commercial Court will schedule an early organisational meeting to discuss the organisation and course of the proceedings, Section 612 ZPO. It is precisely this early involvement of the parties that demonstrates the orientation towards the practice of arbitration; here it is also possible to take the parties‘ ideas regarding the further organisation of the proceedings into account to a very large extent.

Otherwise, the Commercial Court will apply the general procedural rules and, if necessary, issue a judgement, which will also be drafted in English if English is designated as the court language; upon request, the operative part of a judgement or a settlement will be translated into German, § 608 (1), (2) ZPO. The decision of the Commercial Court can be appealed to the Federal Supreme Court without the need for authorisation (§ 614 ZPO). Upon a request made in the notice of appeal, the appeal proceedings may also be conducted in English (§ 184 b (1) GVG). 

2. in the second instance

The specialisation of the Commercial Court for proceedings falling within its areas of expertise should also be available for appeal proceedings against decisions of the Regional Court. The proceedings before the Commercial Court at second instance differ from other complaint and appeal proceedings before the Higher Regional Court essentially in that there are more opportunities to present arguments in English. Even if the proceedings at first instance were conducted in German, the parties may, with the consent of the other party, make submissions to the Commercial Court in English (§ 184a (3) S. 2 GVG). In all other respects, the procedural provisions of the ZPO apply to the proceedings in the appeal instance.