Originally from European International Arbitration Review

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I. Introduction

A. Background and Purpose

In International Commercial Arbitration, sometimes neither party’s submissions correspond to the arbitral tribunal’s view of the case. In such a situation, the arbitral tribunal must know its powers. To what extent may it independently evaluate the case? Must the arbitral tribunal stick to the parties’ factual and legal submission? Must it follow their claims for relief? Or may the arbitral tribunal assess the facts of the case and the law free from any constraints set by the parties? To what extent may and must the arbitral tribunal explain its view of the facts and the law to the parties before it renders the award? Shortly, what is the relation between Jura novit curia and Party Autonomy in International Commercial Arbitration?

This article presents the German perspective on Jura novit curia in International Commercial Arbitration. It exhibits the status quo, as to which limits exist on the principle of Jura novit curia in arbitration from the perspective of Germany.

B. Structure and Method

The article first sets out a working definition of Jura novit curia (Part II). It then examines the impact of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter the 1958 New York Convention or NYC), of the German arbitration law, and of prominent German arbitration institution rules on Jura novit curia (Part III). In a third step, it presents the other legal sources used regarding Jura novit curia and the results of an empirical analysis of how the different actors in arbitration behave (Part IV). Finally, we conclude that the working definition of Jura novit curia largely, but not entirely corresponds to the understanding of Jura novit curia in German law (Part V).

We analyzed the case law German courts established in proceedings on declaration of enforceability and setting aside the award respectively, and proceedings on the challenge of arbitrators. We found forty-seven cases concerning Jura novit curia, of which twenty-six referred to the right to a fair hearing.