17 April 2020
The judicial clarification of civil law disputes, which is undoubtedly system-relevant, has not remained immune to the corona crisis. In particular, oral hearings in court cannot be simply moved across to the home office. In this article, we examine the options available to you as a litigant to manage court proceedings appropriately. Furthermore, we discuss the possibility of resorting to arbitration.
No “suspension of the administration of justice”
The last time the administration of justice came to a standstill pursuant to section 245 ZPO was immediately after the Second World War. This provision regulates the interruption of all proceedings for the duration of the complete suspension of the administration of justice due to war or a comparable event. Irrespective of the question whether the current situation constitutes a comparable event, the administration of justice is in any case not completely paralysed at present. Judges can continue to work - from the office or from home - and therefore further advance proceedings. Occasionally, oral hearings are still held, even if the vast majority have been rescheduled to appointments later in the year. Particularly in light of the discussion on the relaxation of the corona measures, it also seems unrealistic that the administration of justice could come to a standstill in the foreseeable future. If, in an individual case, all the judges at the competent court are absent due to illness, the court of first instance with the next highest level of jurisdiction will designate another court which would be competent for the proceedings in accordance with section 36(1) ZPO, so that the continuation of a court case is also ensured in this situation. Court proceedings therefore continue as usual, so that even during the corona crisis and the associated “ban on contact”, appropriate measures must be taken to ensure that court deadlines are met. Most countries have issued decrees requesting the judicial authorities, for example, to reduce public attendance, to keep hearings to an absolutely necessary minimum or to restrict the opening hours of the courts. Many courts currently have special rules and operate in “emergency mode” - but there is no uniform regulation, which is also attributable to the independence of the judiciary.
Dealing with deadlines
For the time being, the procedure of deadlines is not affected by the corona pandemic. In principle, however, procedural time limits can be extended at the request of the parties at the discretion of the court. Initial experience shows that many courts are generous with such applications, as the consequences of the crisis are generally known (e.g. school closures, staff shortages; home office, etc.), but the end of the crisis is as yet unforeseeable. According to sections 224(2) and 225 ZPO, the extension of the deadline can be granted on application in the case of “substantial grounds”. The current measures and their consequences will have to be assessed as such “substantial grounds”. However, it is important to note that an application for an extension of time limits always requires an individual justification. The reference to the corona pandemic alone will not suffice for this purpose. It must be explained in detail to what extent one is actually prevented from meeting the deadline set. However, unlike in the case of rescheduling, the ZPO does not provide for the possibility of an official extension of the deadline, so an application is mandatory. In any case, this must be received by the court before the deadline expires, otherwise any extension of the deadline would be invalid. Such a late application for an extension of the time limit could at best be interpreted as an application for reinstatement.
In the case of so-called “emergency deadlines”, such as the period for filing a statement of defence or lodging an appeal, the law does not provide for the possibility of extending the period. If the deadline is missed, only the restoration of the previous status according to section 233 ZPO can be considered. The lack of fault necessary for this could be affirmed in the case of serious illness. However, it is expected of a lawyer that sufficient office organisation is maintained and, if necessary, a representative is appointed.
Court dates and postponements
At court hearings, for which judges, parties, lawyers and possibly the public come together, the required distance of 1.50 metres to 2 metres between the individual persons is - depending on the local conditions - not always feasible, so that this can result in a quite high risk of infection with the coronavirus. As a rule, there is therefore a substantial reason to postpone the date officially in accordance with section 227 (1) ZPO, even if the courts have so far made only limited use of this possibility. However, the Schleswig-Holstein Ministry of Justice, for example, was one of the first federal states to announce in a decree that court hearings should be “limited to an absolutely necessary minimum”. Due to the independence of the judiciary, however, this decree is only a recommendation. The decision lies in the circumstances which are presented to the judges.
If the court does not independently move the hearing date of its own accord, the parties may request that the date be moved. Experience in recent weeks shows that such requests are currently being handled particularly favourably. Only occasionally, courts reject such requests on the basis of their judicial independence. It is quite conceivable that successful action can be taken against this. On the basis of article 2(2)(1) of the Basic Law (right to life and physical integrity), a complainant had lodged a constitutional complaint against the rejection of his request for a transfer in interim relief. This was rejected by order of 23 March 2020, but on the grounds that the violation of fundamental rights had not been sufficiently justified and that neither in fact nor in law had the large number of protective measures offered by the Regional Court been dealt with.
In order to protect the health of the parties and hearing representatives in the best possible way, an exclusion of the public from court hearings according to section 172(1a) Courts Constitution Act is conceivable in principle due to health hazards; however, since the principle of the public rightly enjoys an extremely high value in our legal system, an exclusion is likely to fail due to available milder means, such as suitable adjustments in courtrooms or postponement of hearing dates. The Ministers of Justice of the federal states have clearly signalled that a general exclusion of the public is not intended.
A postponement of the hearing does not necessarily lead to an interruption of the proceedings, because the proceedings can also be advanced in writing, e.g. by detailed information from the court combined with settlement proposals and, based on these, settlement negotiations between the parties without the need for a face-to-face meeting. It is also possible - with the agreement of the parties - to request that the court makes a decision in written proceedings pursuant to section 128(2) ZPO. Before giving such consent, however, it should be carefully considered whether the oral hearing offers an advantage for procedural reasons and therefore must be held.
Court hearings and video conferences
As an alternative to rescheduling of hearings and the transition to the written procedure, the use of video technology for conducting the oral hearings may be considered. The ZPO provides in section 128a ZPO that the court may allow parties and their representatives to remain at another location during the oral proceedings and to conduct procedural acts there by video conference (court proceedings by video conference ). In practice, however, this option is only used to a very limited extent due to the lack of appropriate technical equipment. In addition, the regulation still requires the presence of judges and possibly spectators in the courtroom. In this respect, not only better technical equipment is required for the courts, but also legislative adjustments, for example with regard to the presence of judges.
Suspension of proceedings as a possible option
Another option for litigants, which is being discussed in light of the current situation, is an application for a stay of proceedings. According to section 249 ZPO, the parties’ procedural acts as well as all acts of the court are ineffective and all time limits are interrupted if reasons for suspension under sections 246 et seq. ZPO exist. Section 247 of the Code of Civil Procedure may be relevant here if, due to a quarantine, the communication between a party or its representative and the trial court is cut off. Whether the current situation is actually sufficient to justify such an application has not yet been clarified.
Enforcement by bailiffs is also significantly affected by the corona pandemic. Different regulations have been made in the individual federal states. In Bavaria, for example, only measures which can be taken in writing or by telephone are currently in place. Personal contact between bailiffs and debtors is currently to be avoided. As a matter of principle, therefore, there is neither compulsory execution on the debtor’s premises nor is there an acceptance of a debtor’s list of assets.
Arbitration proceedings as an alternative?
A good alternative to state court proceedings can be arbitration, especially in the current situation. Since arbitration proceedings are based on party agreements, they offer much more flexible options to react to the changed corona situation. The principle of immediacy and the right to an oral hearing are also less pronounced than in state court proceedings. Moreover, the hearing of witnesses via video conference is already common practice. The DIS Arbitration Rules expressly support the use of modern communication technologies, for example.
Renowned arbitration institutions such as the German Institution of Arbitration (DIS) declare that they will continue to pursue case management with as few restrictions as possible even in the current corona crisis. However, it has taken special measures to reduce the risk of infection, such as replacing paper and data carrier consignments with electronic data traffic. It has also adapted its practice to the current corona crisis, for example with regard to applications for extensions of time limits (Notice on special procedural rules in the administration of arbitration proceedings due to the Covid-19 pandemic ). Other arbitration institutions such as the SCAI, SCC and ICC have announced similar measures.
If you have any further questions regarding the legal issues mentioned above or other legal issues related to the corona pandemic, please do not hesitate to contact our Corona Task Force.
We have compiled on our website comprehensive information and recommendations for action in response to the legal implications arising from the coronavirus pandemic: Coronavirus - legal issues
by multiple authors