Cost and Fee Allocation in German Civil Procedure

Abstract

The German system of civil litigation costs is based on the principle that the loser of the litigation must bear all costs and fees incurred by the winner (sec. 91 and 788 German Code of Civil Procedure (ZPO), sec. 113 Code of Family Proceedings and Non-Contentious Proceedings (FamFG) of 2009). The allocation of costs is based on mandatory legal provisions which exclude any discretionary fee shifting by the court. Despite some recent deregulations, the German system is based on a highly regulated framework of legal provisions which mainly provide for fixed tariffs for all major cost positions. This approach is deeply rooted in Germany’s legal culture and tradition, since it entails a high predictability of the costs (and the risk) of the litigation.