2
different” practices in both systems.
4
Features that distinguish U.S. from German civil
litigation include pre-trial discovery, trial by jury, American rule on costs, and, last but not
least, class actions.
5
Unlike England, the United States, and other countries with a common
law tradition, German courts have no authority to adopt general rules on civil procedure.
On constitutional grounds this task is reserved to the legislator. The German law of civil
procedure has a variety of statutory sources. Its main source, however, is the Code of Civil
Procedure (Zivilprozessordnung or ZPO), one of the famous so-called Reichtsjustizgesetze
dating back to 1877.
6
Since its enactment the Civil Procedure Code has been amended
several times,
7
but its basic structure and characteristic features have endured.
There are number of guiding principles that inform civil trials in Germany. Some of them
are firmly rooted in the German constitution.
8
The most important principles are the
principle of party control, the principle of party control of facts and the means of proof,
and the right to be heard. According to the principle of party control (Dispositionsmaxime),
all relevant aspects of the proceedings (beginning, subject-matter, termination, etc.) are
determined by the parties.
9
The principle of party control of facts and the means of proof
4
Kaplan, von Mehren & Schaefer, supra note 3, at 1193; in the same vein Burkard Hess, Aktuelle
Brennpunkte des transatlantischen Justizkonflikts, 50 D
IE AKTIENGESELLSCHAFT [DIE AG] 897
(2005); see also Jan von Hein, Recent German Jurisprudence on Cooperation with the U.S. in Civil
and Commercial Matters: A Defense of Sovereignty or Judicial Protectionism?, in C
ONFLICT OF
LAWS IN A GLOBALIZED WORLD (Eckart Gottschalk et al., eds., forthcoming 2007) (speaking of
“deeply embedded differences between German and American Civil Procedure”).
5
See Hess, supra note 4, at 897; von Hein, supra note 4, at I B-G. Another feature also often
mentioned in this context are contingency fees. However, in a recent judgment, the German Federal
Constitutional Court held that the per se legal ban on contingency fee arrangements in Germany
was unconstitutional in so far as it did not provide for “special circumstances” on part of the
attorney’s client that, otherwise, may prevent him from pursuing his legal rights. See
Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Dec. 12, 2006, 60 N
EUE
JURISTISCHE WOCHENSCHRIFT [NJW] 979 (2007).
6
Code of Civil Procedure (Zivilprozessordnung [ZPO]) of Jan. 30, 1877 in the version
promulgated on Sept. 12, 1950, Bundesgesetzblatt I (BGBl. I) [Federal Gazette, Part I], p. 533, as
amended. For additional sources of German civil procedure, see Koch & Diedrich, supra note 3, at
24.
7
The most recent comprehensive reform was undertaken in 2001 coming into force on January 1,
2002. For a description of the reforms, see Astrid Stadler, The Multiple Roles of Judges and
Attorneys in Modern Civil Litigation, 27 H
ASTINGS INT’L & COMP. L. REV. 55, 59-76 (2003).
8
For an overview see Koch & Diedrich, supra note 3, at 26-39; Murray & Stürner, supra note 3, at
151-90; Foster & Sule, supra note 3, at 123-6.
9
The principle of party control is based on Article 2 of the German Constitution (Grundgesetz or
GG of May, 23, 1949, BGBl. I, p. 1, as amended), which guarantees citizens the maximum scope