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Die Gerichtsstand-Dreifaltigkeit der ausschließlichen Zuständigkeit für Kapitalanlegerklagen nach § 32b ZPO (The Trinity of Exclusive Jurisdiction for Investor Claims under Section 32b of the German Code of Civil Procedure)

Citation

Publication Date: 
June 10, 2011
Format: 
Journal Article
Bibliography: Felix Mormann, Die Gerichtsstand-Dreifaltigkeit der ausschließlichen Zuständigkeit für Kapitalanlegerklagen nach § 32b ZPO (The Trinity of Exclusive Jurisdiction for Investor Claims under Section 32b of the German Code of Civil Procedure), 32 Zeitschrift für Wirtschaftsrecht 1182 (2011).

This Article evaluates the practical relevance, judicial treatment and legislative success of the recently established exclusive jurisdiction for investor claims to offer recommendations for direly needed reform.

In late 2005, Germany enacted a new framework of exclusive jurisdiction for investor claims, codified in section 32b of the German Code of Civil Procedure. Since its inception, the law has triggered controversial reactions among scholars of corporate and securities law. Mindful of section 32b's experimental character, the legislative originally included a five-year sunset provision. As the sunset term approaches its end, this Article offers a critical review and suggestions for reform of the newly created jurisdictional framework for investor claims.

A careful survey of more than two dozen appellate and supreme court decisions yields valuable insights into the enormous practical relevance of section 32b and its interpretation and application by the judiciary. I juxtapose this jurisprudence with the legislative's intent of channeling and concentrating litigation in a single forum to strengthen investor rights, conserve court resources, and to facilitate supervision of capital markets following the U.S. private attorney general model. The Article acknowledges the judiciary's overall success in shaping the scope of the new jurisdictional regime but criticizes inconsistencies in its handling and application as a cause of considerable legal uncertainty and a threat to the legislative's goals. In particular, the relationship between the trinity of jurisdictional minimum contacts demands clarification. To this end, I offer recommendations for amendment of section 32b to carve out its international scope and clarify its domestic application.