Our litigation pratice is well posed for the next big wave in mass litigation

Dispute resolution is the strong core practice of German law firm Heuking Kühn Lüer Wojtek. Jonas Pust, Drs Elke Umbeck and Thomas Wambach explain how the growing distinction between arbitration and litigation influenced their new reorientation.

Posted mardi, mars 1er 2022
Our litigation pratice is well posed for the next big wave in mass litigation

LEADERS LEAGUE. What was the thinking behind the geographical reorientation of Heuking’s dispute resolution practice in 2021?
Thomas Wambach. The geographical reorientation of the leadership of the practice group emphasized the full-service approach of our firm.
We offer a full range of services in most of our offices. This entails a strong dispute resolution practice at our bigger offices in Düsseldorf, Hamburg, Munich, Cologne, Frankfurt, Stuttgart and Berlin. With two new partners in leadership roles from Frankfurt and Munich we want to demonstrate that our clients can find a strong dispute resolution practice in more places than Hamburg and Düsseldorf.

How does your new practice group’s unified umbrella affect the way Heuking is working with clients from Hamburg, Munich and Frankfurt?
Thomas Wambach. We observed a trend in the last couple of years that there is a growing distinction between arbitration and litigation.
Despite undisputable similarities between the fields, more and more practitioners focus on either arbitration or litigation. The distinction in the leadership of our practice group reflects this trend. At the same time, we want to keep the umbrella of a unified practice group because it is our firm belief that the basic skillset required for successful litigation and arbitration is similar to a certain extent. An exchange of experiences and knowledge between practitioners in both fields will therefore be beneficial for both of them.
Our clients further ask for experts in different areas of disputes. We can offer them a full range of expertise. An expert in construction law litigation will then e.g. cooperate with one of our leading arbitration lawyers.

In 2021, you developed your competence in the handling and settlement of collective proceedings to help offset the decline in diesel litigation. How is Heuking positioned in this area?
Thomas Wambach. 
The mass litigation we handled in the last couple of years undoubtedly pushed our practice group and the cooperation among our regional offices to a completely new level. This experience triggered a task force that focuses on the handling of large projects. In the course of the Diesel litigation, we made the experience that the main challenge was not drafting and editing briefs or going to court but the management of large amounts of incoming and outgoing data. The same is the case in other big projects, which leads to the wide area of legal tech.
The tasks force has set up a platform that is able to handle such projects. The litigation practice itself was able to compensate the decline in Diesel litigation by acquiring follow-on mandates and a number of high-volume cases and is poised for the next big wave in mass litigation. In the market itself, we gained a reputation for being able to handle a five-digit number of cases at a high-quality level. This distinguishes us from most competitors who have smaller dispute resolution practice groups.

Could you tell us about the strengths of your China and France desks?
Elke Umbeck. The establishment of French and China desks has proven to be a prudent undertaking. Particularly the cultural difference between the German and the Chinese way to pursue business ventures breeds conflicts and frequently ends in litigation or arbitration. Our German trained Chinese lawyers work as intermediary between the mostly Chinese clients and the German legal and court system. In the last three years, word spread among the Chinese business community in Germany that Heuking’s China desk is well prepared to pursue their interests.

The French desk benefits from the language skills and knowledge of the French legal system. Despite being Germany’s closest ally and trading partner in Europe and despite the fact that French is the most popular second foreign language taught in secondary school, in general, proficiency in French and the knowledge of the French legal system and culture is surprisingly rare among German lawyers. Those lawyers with Heuking who are proficient in French therefore have a competitive edge.

What trends have you noticed in the world of international arbitration?
Elke Umbeck.
 We see that arbitration is striving to return to its core task: the efficient resolution of disputes. It is a process needed by the parties to resolve disputes and nothing else. There are several innovative solutions to streamline the process and to reduce costs, we want to make use of: We see an increasing use of technology, not only for oral hearings and discussions with clients as counsel but also, for example, for organizing a common platform for the case file. In addition, technical solutions simplify reviewing, preparing and analysing documents.

It is becoming common wisdom that diverse arbitration teams produce better results

Moreover, it is becoming common wisdom that – also in arbitration – diverse teams produce better results. In this respect, there are numerous initiatives to make decisions and knowledge about arbitrators’ public and ultimately lead to open the access to arbitration. Finally, as our society and economies, also arbitration practitioners are aiming to decarbonize the proceedings by reducing and/or offsetting its emissions. Once again, technology plays a key role, as it allows us to avoid (long) flights for (short) examinations or paper filings.

What are the most common specific pitfalls for lawyers when it comes to handling arbitral and court-based hearings via videoconference?
Jonas Pust. In general, for both state court and arbitration proceedings we made good experiences with hearings via video conference. In particular, in an international context an online hearing helps to save time and costs without having a major impact on the outcome of the dispute.
At least for arbitration proceedings, the parties should agree on additional rules ensuring an equal playing field for the online hearing in particular ensuring that witnesses sitting in a separate room will not be influenced during their examination. Besides, as always, preparation is key. You need to be familiar and comfortable with your technical set up and make sure that the transmission quality is excellent. In particular, you should arrange sound quality and lightning carefully. You cannot afford that your arguments or your interrogation is impaired by technical flaws.
In addition, you need to think about how you want to communicate within the team. For arbitration proceedings, we decided to be with our team and the client in one room and to have an additional individual access for the speaker. This solution worked very well.
We also offer to use our facilities for witnesses to be heard. While physically going to court usually illustrates the seriousness of the situation, there is a risk of inadequate preparation, especially when dialing in from one’s own workplace.

In 2020, there was an initiative in Germany to establish English-speaking courts for commercial disputes and international business. Where do we stand one year later?
Jonas Pust.
 In order to become more attractive for settling disputes between international businesses, several English-speaking court panels were established in Germany (as of November 2021 Stuttgart, Mannheim, Cologne, Frankfurt am Main and Hamburg). In its English-language proceedings, these courts can interrogate witnesses in English and consider evidence/annexes in English without the need for such documentary evidence to be translated into German. Judgements however are still written in German as the official language in Germany. The German Federal Council (“Bundesrat”) introduced a bill providing for English as an additional official court language in 2018, which was not passed by the last Federal Parliament.
However, the recently sworn-in federal government is aware of this issue and included it in the coalition agreement. It was agreed that English-speaking specialized chambers for international commercial and economic disputes will be made available. When and how specifically this will be implemented remains to be seen.

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