Forum non conveniens defence in Germany is a concept that surprises many foreign litigants: German courts do not apply the doctrine in the way common-law jurisdictions do. Unlike courts in England, the United States or Australia, German civil courts cannot decline jurisdiction simply because another forum would be more convenient. Instead, Germany operates under a mandatory civil procedure framework rooted in the Zivilprozessordnung (ZPO) and EU Regulation No 1215/2012 (Brussels Ia), which allocate jurisdiction by strict legal rules rather than judicial discretion. This guide explains why the doctrine is effectively unavailable in Germany, what procedural tools defendants can use instead, how jurisdiction challenges are raised and resolved, and what practical strategies international businesses should adopt when facing or initiating litigation in Germany.
The doctrine of forum non conveniens is a common-law creation. It allows a court with valid jurisdiction to stay or dismiss proceedings in favour of a more appropriate foreign forum, weighing factors such as the location of evidence, the convenience of witnesses and the interests of justice. German law rejects this discretionary approach entirely.
German civil procedure is governed by the ZPO, which entered into force in its current consolidated form in the late nineteenth century and has been amended many times since. The ZPO establishes a closed system of jurisdictional grounds. If a ground exists - for example, the defendant';s domicile in Germany under section 12 ZPO, or the place of contractual performance under section 29 ZPO - the court is obliged to exercise jurisdiction. It has no residual power to decline on grounds of convenience.
The Federal Court of Justice (Bundesgerichtshof, BGH) has consistently confirmed this position. German courts regard the exercise of jurisdiction as a legal duty, not a discretionary choice. A court that refused to hear a case despite having valid jurisdiction would be acting ultra vires under German procedural law.
This structural difference creates a significant asymmetry for parties accustomed to common-law litigation. A defendant who might successfully invoke forum non conveniens in London or New York will find that argument unavailable before a Landgericht or Oberlandesgericht in Germany. Understanding this from the outset shapes every aspect of litigation strategy.
For disputes with an EU cross-border dimension, the Brussels Ia Regulation (EU) No 1215/2012 is the primary instrument. It applies when the defendant is domiciled in an EU member state and the dispute falls within its material scope, which covers most civil and commercial matters.
Brussels Ia allocates jurisdiction through a hierarchy of rules. The general rule is that defendants are sued in the courts of their domicile. Special rules apply to contracts (place of performance), torts (place of the harmful event), and consumer or employment contracts. Exclusive jurisdiction rules govern certain categories such as immovable property, company law matters and registered intellectual property rights.
Critically, Brussels Ia contains no forum non conveniens exception. The Court of Justice of the European Union (CJEU) confirmed this in its landmark Owusu v Jackson ruling, which held that an EU court with jurisdiction under the Regulation cannot stay proceedings in favour of a non-EU court on forum non conveniens grounds. Germany, as a founding EU member, applies this principle without exception.
Where the defendant is not domiciled in an EU member state, German national rules under the ZPO apply. Even then, as noted above, German courts do not exercise forum non conveniens discretion. The absence of the doctrine is therefore consistent across both the EU and purely domestic frameworks.
A non-obvious requirement that foreign parties often miss is the distinction between jurisdiction and admissibility. Even where a German court has jurisdiction, certain procedural objections - such as a valid arbitration clause or an exclusive jurisdiction agreement - can block the proceedings. These are not forum non conveniens arguments, but they achieve a comparable result through different legal mechanisms.
Although forum non conveniens is unavailable, defendants in German proceedings have several procedural tools that can redirect or limit litigation. Understanding these alternatives is essential for any international business facing a claim before a German court.
Jurisdiction agreements and exclusive choice-of-court clauses. Under section 38 ZPO and Article 25 of Brussels Ia, parties can agree in writing to submit disputes to a specific court. If the contract contains an exclusive jurisdiction clause designating a foreign court, the German court must decline jurisdiction. This is the closest functional equivalent to a forum non conveniens outcome, but it operates by contractual right rather than judicial discretion. The clause must satisfy formal requirements: it must be in writing or in a form consistent with established trade usage between the parties.
Arbitration agreements. If the parties have concluded a valid arbitration agreement, section 1032 ZPO requires the German court to stay or dismiss the proceedings on the defendant';s application, provided the application is made before the defendant submits its first substantive pleading. The arbitration agreement must cover the dispute in question. German courts apply a pro-arbitration policy and will generally uphold such agreements unless they are manifestly null and void or incapable of being performed.
Lis pendens. Article 29 of Brussels Ia requires a German court to stay proceedings if the same cause of action between the same parties is already pending before a court of another EU member state that was seised first. This rule can be used strategically: a party that files first in a preferred EU forum can trigger the lis pendens mechanism and force the German court to wait. The German court must stay proceedings until the first-seised court determines its own jurisdiction.
Related actions. Article 30 of Brussels Ia gives German courts discretion to stay proceedings where related actions are pending in another EU member state. Unlike lis pendens, this applies even where the claims are not identical, provided there is a risk of irreconcilable judgments. This is a softer tool, but it can be relevant in complex multi-party disputes.
In practice, founders and in-house counsel should consider building jurisdiction and arbitration clauses into contracts at the drafting stage. A common mistake is to treat these clauses as boilerplate and fail to specify the seat of arbitration, the governing law, or the scope of disputes covered. Ambiguous clauses are frequently litigated in Germany, adding cost and delay.
If you are facing proceedings in Germany and need to assess whether any of these mechanisms apply to your situation, contact info@vlolawfirm.com. We can help structure the defence correctly from the outset.
When a defendant believes a German court lacks jurisdiction, the challenge must be raised promptly and in the correct procedural form. Delay or incorrect framing can result in the objection being waived.
Under section 39 ZPO, a defendant who enters a substantive defence without raising a jurisdiction objection is deemed to have submitted to the court';s jurisdiction. This is known as rügelose Einlassung - submission by conduct. The practical consequence is severe: a defendant who files a detailed defence on the merits before challenging jurisdiction may lose the right to contest jurisdiction at all. Foreign defendants unfamiliar with German procedure frequently make this mistake.
The correct approach is to raise the jurisdiction objection in the first pleading (Klageerwiderung) or, in urgent cases, in a preliminary motion. The objection must be specific: it must identify the legal basis for the challenge, whether that is the absence of a ZPO ground, the existence of an exclusive jurisdiction agreement, or the primacy of an arbitration clause.
The court will then schedule a hearing or decide the jurisdictional question on the papers. In straightforward cases, a decision may come within a few weeks. In complex international disputes, the process can take several months, particularly if evidence of the parties'; agreement or of the defendant';s domicile is disputed.
If the court upholds the jurisdiction challenge, it will declare the claim inadmissible (unzulässig) rather than dismissing it on the merits. The claimant can then re-file in the correct forum. If the challenge fails, the case proceeds on the merits and the defendant must engage fully with the substance of the claim.
Appeals against jurisdiction decisions are possible. An immediate appeal (sofortige Beschwerde) lies against certain procedural orders, and the merits appeal (Berufung) to the Oberlandesgericht will typically revisit jurisdiction as part of the full review. The BGH may be involved in cases raising novel points of EU or international procedural law.
The absence of forum non conveniens in Germany also has implications for the enforcement of foreign judgments. A foreign claimant who obtains a judgment abroad and seeks to enforce it in Germany will face scrutiny of the original court';s jurisdiction.
Under section 328 ZPO, a German court will refuse to recognise a foreign judgment if the foreign court lacked international jurisdiction according to German standards. This is an indirect jurisdictional review: the German enforcement court does not retry the merits, but it does ask whether the foreign court had a legitimate basis to exercise jurisdiction over the defendant.
This creates a practical scenario that international businesses encounter regularly. A US or UK claimant obtains a default judgment against a German defendant. The German defendant did not appear in the foreign proceedings, arguing that the foreign court lacked jurisdiction. When the claimant seeks enforcement in Germany, the German court will assess whether the foreign court';s jurisdictional basis would be recognised under German law. If the foreign court exercised jurisdiction on a basis that German law does not accept - for example, purely on the basis of the defendant';s assets in that jurisdiction - recognition will be refused.
For EU judgments, Brussels Ia applies a streamlined recognition and enforcement regime. Judgments from EU member state courts are recognised automatically and enforced without a declaration of enforceability in most cases. The grounds for refusal are narrow and do not include a general review of jurisdiction.
A second practical scenario involves a German company that is sued in a non-EU jurisdiction and obtains a favourable ruling from a German court on the same dispute. If the foreign court';s judgment is later presented for enforcement in Germany, the German court may apply the lis pendens or res judicata principles to protect the German judgment. The interaction between parallel proceedings in Germany and third-country courts is an area where careful procedural strategy pays dividends.
Many underestimate the importance of documenting the defendant';s domicile and the contractual basis of jurisdiction at the enforcement stage. Evidence that was not gathered during the original proceedings can be difficult to reconstruct later.
For businesses operating across borders, the absence of forum non conveniens in Germany is not merely a technical point - it has direct consequences for litigation risk, contract drafting and dispute resolution strategy.
Contract drafting. The most effective way to control jurisdiction is at the contract stage. Exclusive jurisdiction clauses designating a preferred court, or arbitration clauses with a specified seat, give the parties certainty. German courts will enforce these clauses if they meet the formal requirements of section 38 ZPO or Article 25 of Brussels Ia. Clauses that designate German courts exclusively can protect a German party from being sued abroad; clauses designating foreign courts can protect a foreign party from German proceedings.
Choice of law. Jurisdiction and governing law are distinct questions, but they interact. A contract governed by German law will often be litigated in Germany even if the jurisdiction clause is ambiguous, because German courts are best placed to apply German law. Conversely, a contract governed by English or New York law may be more naturally litigated in those jurisdictions. Aligning the choice of law with the choice of forum reduces the risk of parallel proceedings.
Early procedural action. In Germany, speed matters. The defendant who identifies a jurisdictional objection must raise it immediately. The claimant who wants to establish lis pendens must file first in the preferred forum. Delay in either direction can foreclose important options.
Costs. German litigation costs are governed by the Gerichtskostengesetz (GKG) and the Rechtsanwaltsvergütungsgesetz (RVG), which set court fees and attorney fees by reference to the value in dispute. In high-value international disputes, these costs can be substantial. The losing party generally bears the winner';s costs under the Kostentragungspflicht principle. This cost-shifting rule creates strong incentives to assess the merits of a jurisdictional challenge carefully before raising it.
Interim measures. German courts can grant interim injunctions (einstweilige Verfügungen) and attachment orders (Arreste) even in cases where the merits will ultimately be decided elsewhere. A party that needs urgent asset protection in Germany should not wait for the jurisdictional question to be resolved. The court';s power to grant interim relief is not affected by the existence of a foreign jurisdiction clause, provided the requirements of sections 916-945 ZPO are met.
In practice, founders and senior managers should treat German litigation exposure as a distinct risk category in their legal risk assessments. A company with significant assets, employees or contracts in Germany is exposed to German jurisdiction regardless of where it is incorporated or where its management sits.
For tailored advice on litigation strategy and jurisdictional risk in Germany, contact info@vlolawfirm.com. We can assist with jurisdictional analysis, contract review and representation before German courts.
Does Germany recognise any doctrine that produces a similar result to forum non conveniens?
Germany does not have a doctrine that allows courts to decline jurisdiction on grounds of convenience. The closest functional equivalents are exclusive jurisdiction agreements under section 38 ZPO and Article 25 of Brussels Ia, and arbitration agreements under section 1032 ZPO. Both require a prior contractual arrangement between the parties. Without such an agreement, a German court with valid jurisdiction under the ZPO or Brussels Ia is obliged to hear the case. There is no residual judicial discretion to transfer or stay proceedings on the basis that another forum would be more appropriate.
How long does a jurisdiction challenge typically take to resolve in Germany, and what does it cost?
The timeline depends on the complexity of the dispute and the court';s workload. In straightforward cases where the jurisdictional question turns on a clear contractual clause or an undisputed domicile, a decision may be reached within a few weeks of the first hearing. In complex international disputes involving disputed facts or novel legal questions, the process can extend to several months, particularly if the matter is appealed to the Oberlandesgericht or the BGH. Costs are calculated by reference to the value in dispute under the GKG and RVG. For high-value claims, professional fees and court fees can reach the mid-to-high five figures in EUR, and significantly more if the matter is appealed.
What happens if a German court and a court in another country are both hearing the same dispute simultaneously?
If both courts are in EU member states, Article 29 of Brussels Ia applies. The court seised second must stay its proceedings until the first-seised court determines its own jurisdiction. If the first-seised court accepts jurisdiction, the second court must decline. If the parallel proceedings involve a non-EU court, Brussels Ia does not apply and the situation is governed by national rules. German courts will not automatically stay proceedings in favour of a non-EU court. However, if a final judgment is obtained in the non-EU proceedings first, the German court may take it into account under res judicata principles, subject to the recognition requirements of section 328 ZPO.
Germany';s rejection of forum non conveniens reflects a broader commitment to legal certainty and mandatory jurisdictional rules. For international businesses, this means that the question of where disputes will be heard must be resolved at the contract drafting stage, not in the courtroom. Exclusive jurisdiction clauses, arbitration agreements and careful choice-of-law provisions are the primary tools available. Where litigation has already begun, prompt procedural action - raising jurisdiction objections in the first pleading and, where relevant, filing first in the preferred forum - is essential to protect the client';s position.
VLO Law Firms advises international clients on litigation matters in Germany. We can assist with jurisdictional analysis, drafting and reviewing dispute resolution clauses, raising jurisdiction challenges before German courts, and coordinating cross-border enforcement proceedings. To request a consultation, contact: info@vlolawfirm.com