Section 1061, paragraph 1 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO) provides:

Article V, paragraph 1 (b) of the New York Convention provides:

Article 103 (1) of the German Constitution provides:

The case before the Higher Regional Court of Munich concerned the enforcement of an arbitral award rendered in Switzerland between two German limited liability companies. In the arbitration, the applicant had filed a claim for damages against the respondent. Part of the dispute concerned the economic value of one of the applicant's land plots and both parties had provided evidence by party-appointed experts on the value of the land plot. The arbitral tribunal granted the applicant's claim and relied on the evidence provided by the applicant's party-appointed expert with regard to the value of the land plot. It reasoned in the award that this expert evidence – in contrast to the expert evidence provided by respondent – appeared plausible when compared to various external factors. It therefore did not consider it necessary to appoint a tribunal-appointed expert on this issue, as had been requested by respondent.

In the enforcement proceedings in Germany, the respondent objected to the enforcement of the award by arguing that the arbitral tribunal had violated its right to be heard by not appointing a tribunal-appointed expert according to section 1061, paragraph 1, ZPO and Article V, paragraph 1(b) of the New York Convention.

The Higher Regional Court of Munich declared the award enforceable and held that there had been no violation of the right to be heard by the arbitral tribunal. In its reasons, it confirmed that an arbitral tribunal is bound by the basic principle of the right to be heard as set out in Article 103 (1) of the German Constitution, which also applies to arbitral proceedings.

However, the court held that the substance of the right to be heard under Article 103 (1) of the German Constitution is not the same in each and every type of proceeding. The duty of an arbitral tribunal to ensure the parties' right to be heard is less strict than the equivalent duty of a German court in litigation proceedings. Nevertheless, the arbitral tribunal must guarantee that each party has the opportunity to comment on the factual and legal aspects of the case and must ensure that it takes note of these submissions and makes them a part of its reasoning. Such reasoning may not be limited to standard or boilerplate language, but must show that the arbitral tribunal seriously considered the evidence.

The court further confirmed that if an arbitral tribunal does not deal with a request to appoint a tribunal-appointed expert at all, this might lead to a violation of the right to be heard. However, as long as the arbitral tribunal at least briefly addresses the request for a tribunal-appointed expert, even without giving reasons for not granting such request, this will not violate the right to be heard.

In the case at hand, the arbitral tribunal had dealt with the evidence provided by both party-appointed experts in the reasoning of its award in detail and had explained why it relied on one of the party-appointed experts by referring to external factors. This was sufficient to comply with its duty

This decision by the Higher Regional Court of Munich gives helpful guidance on the right to be heard with regard to expert evidence. It also shows that German courts are reluctant to interfere with the evaluation of evidence by the arbitral tribunal and will only affirm a violation of the right to be heard in extreme circumstances.