DIS Construction Group: German Law in Construction Contracts: Navigating GTCs

9 September 2024, Berlin

Moderated by the Group’s Co-Chairs – Andreas J. Roquette, Bernd Ehle, and Tom C. Pröstler – the panel brought together a range of perspectives on this pressing issue in construction law. Ulrike Gantenberg (Gantenberg Dispute Experts) provided insights from a counsel’s perspective, Carlo Ottaviano (General Counsel, TenneT TSO) shared the in-house viewpoint, and Claus H. Lenz (LDR Lenz Dispute Resolution) discussed the arbitrator’s perspective.

The panel addressed several important themes, including:

• Relevance of AGBs in construction contracts governed by German law: which contractual terms in construction are particularly impacted by the law on AGBs? Examples discussed were pay-when-paid clauses, liquidated damages, first-demand bonds, and FIDIC time-bars.
• Possible Solutions for Users: Should parties consider choosing a different legal system (such as Swiss law)? Is it viable to exclude sections 305 et seq. of the German Civil Code (BGB)? The panelists provided insights on the legal permissibility of these strategies and their prevalence in practice.
• German law on AGBs in arbitration: The panelists explored how the relevant rules on AGBs are applied in arbitration, including deviations from judicial standards concerning the negotiation of terms and the use of commercial standards instead of statutory models.

The event concluded with a forward-looking discussion on reform initiatives, including the efforts led by the Frankfurt Initiative to advance the law on AGBs. Benjamin Vollmer (VDMA) delivered a statement from the audience, which was followed by a lively exchange between attendees and speakers.

Generously hosted by Freshfields Bruckhaus Deringer, the event was followed by a networking lunch sponsored by Secretariat, providing participants with the opportunity to continue their discussions in an informal setting.

Bernd Ehle
 

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