IHK Berlin
Alternative dispute resolution clauses
Conciliation clauses enable parties to avoid litigation when a dispute arises by way of an agreement being reached between the opposing parties before proceedings are commenced in ordinary courts. Use the following sample contract clauses to contractually determine an alternative dispute resolution either mandatory or optional before a dispute even arises.
Conciliation proceedings
“In the event of a dispute arising under or in relation to this contract, before commencing proceedings in an ordinary court (or court of arbitration), the parties undertake to undergo conciliation proceedings in accordance with the regulations of the Berlin business conciliation board of the Berlin Chamber of Commerce and Industry, the Berlin Bar Association and the Berlin Chamber of Crafts and Trades (or any other regional competent institution, e.g. Chamber of Commerce and Industry, Chamber of Crafts and Trades etc.) that are valid at the time the proceedings are commenced.”
Mediation proceedings
Suggested “mandatory mediation clause”:
“If any disputes or differences of opinion arise in connection with this contract, the parties undertake (“intend” for an “optional mediation clause”) to undergo mediation before commencing proceedings in an ordinary court (or court of arbitration). The parties must appoint the mediator by mutual agreement within three weeks after one party has informed the other party in writing that they wish to do so (mediation request).”
Suggested “optional mediation clause”:
The following sentence should be added to the mandatory mediation clause:
“As the parties have not undertaken to undergo mediation when concluding this contract, the parties are free in principle to take any legal action even if they do not use mediation. Nevertheless, the parties declare that it is their intention to strive to amicably resolve any dispute that arises.”
The following sentence should be added to the mandatory mediation clause:
“As the parties have not undertaken to undergo mediation when concluding this contract, the parties are free in principle to take any legal action even if they do not use mediation. Nevertheless, the parties declare that it is their intention to strive to amicably resolve any dispute that arises.”
Arbitration agreement
“If, when performing the contract concluded between .. X .. and ..Y.. (parties) dated …(date), differences of opinion arise regarding …(e.g. the existence of defects, or: the amount of the rent, or: the following questions: ……) ....., then an arbitrator’s opinion that is binding on both parties should be obtained in accordance with §§ 317 ff. of the German Civil Code (BGB). Upon the request of one party or both parties, the Chamber of Commerce and Industry …. (it is advisable to insert the Chamber of Commerce and Industry for the area in which the object to be visited is situated) …. should nominate a (publicly appointed and sworn) expert as arbitrator, who should then be appointed by the parties. Either party may also appoint the expert independently. The other party may only reject the expert for a compelling reason. In the event of any delay or if there are any reasons for rejection due to concerns regarding partiality, the Chamber of Commerce and Industry should nominate an alternative expert. Each party will bear half of the costs of the arbitrator’s opinion.”
Alternatively:
“The costs for the arbitrator’s opinion will be borne by the party that is liable according to the conclusions of the opinion. If liability is joint, the costs are to be shared in proportion to the respective success or liability and will be determined by the arbitrator.”
“The costs for the arbitrator’s opinion will be borne by the party that is liable according to the conclusions of the opinion. If liability is joint, the costs are to be shared in proportion to the respective success or liability and will be determined by the arbitrator.”