Authors
One of arbitration’s most attractive features is procedural flexibility. Under section 1042 ZPO, the parties are free to agree on the procedure, and if they do not, the tribunal may conduct the arbitration in the manner it considers appropriate within the statutory framework.
Leading arbitration rules such as the 2018 DIS and 2026 ICC Rules operationalise this through mandatory case management conferences – under the 2018 DIS Rules in principle within 21 days (Article 27 DIS), under the 2026 ICC Rules within 30 days from receiving the file from the Secretariat (Article 24 ICC). The 2026 ICC Rules have abolished the former Terms of Reference requirement, making the initial case management conference the central early procedural milestone – and both impose a general duty of time- and cost-efficient proceedings. The case management conference is meant to address not only timetable issues, but also procedural architecture, possible use of experts, expedited proceedings, and even amicable settlement options.
This flexibility would be further reinforced by the current reform proposal, which would expressly permit video hearings under proposed section 1047 ZPO-E and electronic awards under proposed section 1054 ZPO-E.
This is a real advantage. Parties can tailor the scope of document production, witness evidence, hearing format, expert work, and the balance between written and oral procedure. They may also use soft-law frameworks such as the IBA Rules on the Taking of Evidence. That is often commercially superior to forcing a highly technical international dispute into a fixed procedural template.
However, flexibility should not be romanticised. Every additional procedural option is also an additional cost and timing decision. Broad document production can become quasi-discovery. Witness evidence can expand uncontrollably. Experts can become the main event. And where coercive powers are needed, the tribunal still depends on court support. Under section 1050 ZPO, the tribunal, or a party with tribunal approval, may seek court assistance in taking evidence or performing acts the tribunal cannot itself perform.
It is also worth noting that arbitral tribunals do not typically provide the kind of preliminary legal signals parties may know from some court settings. That can complicate settlement timing and internal case assessment.
Key takeaway
Arbitration’s flexibility becomes a business advantage only when it is actively managed – otherwise it simply produces a more bespoke version of procedural sprawl.
German Disputes Bites series
We hope you are enjoying our series of blogs on Litigation vs Arbitration. This series will cover different aspects of the choice between a litigation or arbitration forum. Previous posts in the series: