A. Introduction

On 25 July 2003 the German Bundesverfassungsgericht (Federal Constitutional Court - FCC) handed down an order which is likely to give a new direction in global disputes since it relates to an act that is absolutely necessary when starting litigation: the service of a writ in a suit before a court. The Court's order is an important element in a discussion of the compatibility of German procedural law and conflict of laws with foreign, notably U.S. American class action and punitive damages suits that has been going on in Germany for a long time already. The following case note will provide a brief introduction to the debate and comment on the Court's order before sketching the possible consequences of the FCC's latest decision.

I. The Devil in the Blue Dress: Three Introductory Remarks

From the perspective of a German-trained attorney (and her clients), the most perplexing elements of American Procedural law are pre-trial discovery, disclosure of documents, written witness-statements followed by cross-examination, class-action suits and punitive damages. From the perspective of an American-trained attorney, the perplexing element is that German Procedural Law is not familiar with these elements.

For the German-trained lawyer, the ideas related to these elements often stem from  novels like Jonathan Carr's "A Civil Action," movies like "The Pelican Brief" and "The Firm," or Court TV. Their unfamiliarity renders them inherently suspicious. This suspicion influences debates about service of judicial documents and recognition of foreign judgments, particularly when punitive damages are at stake. The inconsistent fear of "Americanization of procedural rules" is used as a "striking argument" in debates related to the (new) Sec. 142 (3) Zivilprozessordnung (German Civil Procedure Code - ZPO). It is a permanent topic in International Arbitration, particularly in discussions related to the ICC Rules. It is of particular interest if the ICC Rules provide for disclosure of documents in an "American style."

The analysis...