Berlin At the moment, the administrative courts in particular are groaning under the lawsuits against the corona measures that the federal and state governments have decided. The pandemic has so far had little impact on civil courts.
“But I do expect that certain types of disputes will still turn up in the courts,” said the President of the Nuremberg Higher Regional Court, Thomas Dickert, the Handelsblatt. These included proceedings for non-performing loans, rent arrears or vacation cancellations. “We don’t have to worry about running out of work right now,” says Dickert.
The president of the court keeps a close eye on the situation in the civil courts. Under his chairmanship, the presidents of the higher regional courts have been dealing with the “modernization of civil proceedings” for more than a year. First a thesis paper was created.
The comprehensive report is due to be completed in early December. But can digitization find its way into the code of civil procedure, which dates back to 1879? The corona crisis has shown that this is necessary. At least the courts could – if the technology was available – switch to video conferences.
But it is obvious that there are deficits: the number of civil cases has decreased significantly in all instances since 2004. Only last year did the trend turnaround. A good 350,000 new civil cases were pending in the regional courts, around five percent more than in the previous year. At the local courts, the number of entries also increased, but only by 0.4 percent. The main drivers for this are likely to be the diesel proceedings and the enforcement of passenger rights.
However, companies themselves are reluctant to go to German courts. This is also confirmed by the court figures from the Federal Statistical Office: the number of complaints filed by the Chambers of Commerce has halved over the past ten years.
Lawyers like Steffen Lorscheider from the Dortmund commercial law firm Spieker & Jaeger can quickly list reasons for this: “Companies perceive the proceedings to be too long, lack the professional expertise of the judges and consider the proceedings to be too complicated.”
“The civil process must become more flexible and faster”
Lorscheider remembers a procedure with English-language oil tanker charter contracts in which a lengthy expert opinion had to be obtained because of a short passage. Because only German is the language of the court, and the judge was only allowed to use this translation.
Or the court hearing in Munich on purchase price adjustment clauses, in which the judge did not even know the key figure “Ebitda”, ie the earnings before interest, taxes, depreciation and amortization. “The parties reached an out of court settlement within two weeks,” says Lorscheider.
The business attorney considers himself an advocate of the state process. He also knows the disadvantages of arbitration and mediation. “But the civil process must become more flexible and faster.”
This is where the President of the Court Dickert comes into play. For example, he and his colleagues suggest centralized online dishes. The accelerated process should run completely digitally, “prepared and processed by chatbots and intelligent forms,” as Dickert explains.
The case material can therefore even be entered without a lawyer. If evidence is required, this would be carried out by video conference.
First of all, the online courts could be used in mass disputes between complaining consumers and defendant companies, for amounts in dispute of up to 5000 euros. An extension to other processes would be conceivable later.
The report also provides for “structured procedures” to be introduced in which the parties to the dispute present themselves online in tabular form, instead of repeatedly exchanging extensive briefs. “In the future, the fax must be abolished as a means of transmission,” it continues. The determination of costs in civil proceedings could in future be largely automated with artificial intelligence.
But Dickert also sees that specialized chambers should be set up for commercial matters, with commercial judges who come from the business world and are familiar with the matter. “This saves expert opinions and time,” he says. “And the judges could negotiate on an equal footing with the highly specialized lawyers.”
The way there seems to be a long way – even if the “civil case of the future” is now also on the agenda of the autumn conference of the justice ministers of the federal states in Bremen at the end of the week. “It is our aim that the proposals from judicial practice are set down in the next coalition agreement,” explains court president Dickert. “This is the only way there is a realistic chance that they will then be pushed and find themselves in the Federal Law Gazette in the foreseeable future.”
More: No end in sight in the investor process for the VW diesel affair