Commercial Litigation and Liability

Boom in D&O disputes and arbitration proceedings

While the processing of the financial crisis reached a peak with the Heta litigation affair, D&O liability disputes are unabatedly on the rise. Cartels, dubious dividend stripping deals, failed transactions: the question of liability is quick to be posed, singling out (former) managers and even advisors. The greatest example of this right now is the VW emissions scandal, added to which are reams of product recalls and investor claims – recently even from the state of Bavaria.

Furthermore, an increasing number of companies are handling cartel damages. This is reflected, for instance, in the huge number of companies taking action against the sugar cartel. A new EU directive should make future claims easier here. Firms are also looking to expand their arbitration practices. This area continues to flourish despite coming under immense criticism, particularly in terms of investment protection proceedings connected to the discussion surrounding the Transatlantic Trade and Investment Partnership (TTIP).

Cartel damages reviving practices, boutiques on the rise

The most notable practices are involved in the VW scandal in one way or another. It is one of the largest product liability cases in German history. Freshfields Bruckhaus Deringer has been assigned the task of handling this issue, also beyond the German border.

When it comes to cartel damages, firms with strong antitrust practices are often at the fore. Anyone already advising on cartel cases is usually assigned to the defense in subsequent lawsuits. Such firms include Freshfields, Gleiss Lutz and Cleary Gottlieb Steen & Hamilton. New players are cropping up in instructions for plaintiffs, such as US firm Hausfeld, which has now opened its first office in Germany.

In terms of arbitration, the Hamburg firm Hanefeld is viewed by many as a role model and is now classed as one of the most visible German outfits, even on the global stage. Borris Hennecke Kneisel from Cologne and Dr. Philipp K. Wagner from Berlin are further examples of the boutique trend, while market leaders Freshfields, CMS Hasche Sigle and Baker & McKenzie still pack a punch with their large teams that often have greater leverage.



As many firms do, we use the term “dispute resolution” to describe the work of lawyers which concerns not only litigation and arbitration, but also extrajudicial conflict settlement. The main focus of such practice groups tends to lie in corporate and commercial law as well as capital markets law (often termed corporate & commercial litigation), which also forms the focus of the subchapters ?commercial litigation and liability and ?corporate litigation. Depending on the firm, lawyers from a range of practices with a strong litigation element, such as product liability, also belong to these practice groups. At many firms, distribution law is integrated into the litigation departments; this field, however, is dealt with in a separate chapter ( ?distribution, trade and logistics). All firms also represent clients in judicial proceedings.

This applies to such litigation-intensive fields as ?employment, ?trademarks and unfair competition, ?insurance and liability, ?public procurement, ?antitrust, and ?real estate and construction as well as ?insolvency and restructuring. The chapter on ?customs and trade should also be consulted, as some litigation is conducted before the European courts. This chapter also refers to numerous lawyers who have made names for themselves in arbitration.