Litigation and Arbitration in IT Law

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When negotiations over a failed IT project, a licence infringement or a security incident lead nowhere, the dispute has to be decided with binding effect. This page sets out the routes available under German law and what matters for experts, enforcement and cross-border cases. We represent companies as claimants and defendants before state courts and arbitral tribunals.

Which route fits? An overview

Procedure	Outcome	Typical use
Action before the state court	Enforceable judgment, appeal possible	Payment and damages claims, questions of principle, no arbitration agreement
Arbitration	Award, enforceable once declared enforceable	Large projects, international contracts, confidential technology
Interim injunction	Fast provisional ruling	Injunctions, handover of data or access, securing source code
Independent evidence proceedings	Court-appointed expert opinion, usable later	Defects in software, hardware or networks that might change
Mediation and conciliation	Settlement or proposal, binding only if accepted	Ongoing relationship, project still salvageable

The contract often decides which route is open. If it contains an arbitration clause, an action before the state court is inadmissible if the defendant objects (section 1032(1) of the German Code of Civil Procedure, ZPO). Multi-tier clauses require negotiations or mediation (in German) first.

Action before the state courts

Depending on the amount in dispute, the local court (Amtsgericht) or the regional court (Landgericht) has jurisdiction; representation by a lawyer is mandatory before the regional court. Many regional courts have specialised chambers for IT, copyright and competition cases. Since 1 April 2025 the federal states may also set up Commercial Courts at the higher regional courts for large commercial disputes, where proceedings can be conducted in English on request.

In IT litigation, pleading decides the case. A party alleging software defects must describe the symptoms specifically, that is when which malfunction occurs, but need not know the technical cause. A party claiming payment for change requests must prove instruction, scope and the difference from the agreed scope. Without orderly documentation (tickets, minutes, acceptance records, code versions), such cases are often lost.

Arbitration under the DIS Rules 2018

Arbitration requires an arbitration agreement (sections 1029 and 1031 ZPO); where a consumer is involved, it must be in a separate document signed by hand. In Germany the Arbitration Rules of the German Arbitration Institute (DIS) 2018 are frequently agreed. They provide, among other things, for an early case management conference, an expedited procedure for moderate amounts in dispute and a duty on the tribunal to encourage settlement unless a party objects.

In favour of arbitration in IT disputes: the parties can choose arbitrators with technical understanding, the proceedings are private, trade secrets and source code are better protected, and awards can be enforced in more than 170 contracting states of the New York Convention. Against it: there is only one instance, and costs are relatively high for small claims. An award can only be set aside for serious procedural defects or a breach of public policy (section 1059 ZPO), not reviewed on the merits. It is enforced after a declaration of enforceability by the higher regional court (sections 1060 and 1062 ZPO).

Conciliation and expert determination

A conciliator makes a proposal the parties may accept. If only a technical question is in dispute, such as whether there is a defect, an expert determination (section 317 of the German Civil Code, BGB) may be more suitable: the expert decides that question with binding effect, and courts only review for obvious inaccuracy.

Independent evidence proceedings and experts

If the software keeps running, bugs are fixed or systems migrated, the disputed state is soon impossible to establish. Independent evidence proceedings (sections 485 et seq. ZPO) allow a court-appointed expert to record it before main proceedings begin. The opinion counts in later proceedings as if taken there, and the application suspends the limitation period (section 204(1) no. 7 BGB).

Experts often decide IT cases in practice. The court selects the expert (section 404 ZPO). We frame the questions so that the expert answers the legally relevant points and check opinions for methodological errors. That one of our lawyers is a physicist and Michael Horak studied electrical engineering helps here.

Interim relief and enforcement

For injunctions, handover of access credentials or data and preservation of evidence, the interim injunction (in German) is the fastest remedy, even where there is an arbitration agreement (section 1033 ZPO). If you wait too long after learning of the infringement, urgency is lost.

Handover of source code or data carriers is enforced by the bailiff (section 883 ZPO), acts such as cooperation in a data migration by penalty payments or substitute performance (sections 887 and 888 ZPO), and injunctions by fines of up to EUR 250,000 (section 890 ZPO). We draft applications so that the title is specific enough to be enforced.

Cross-border IT disputes

With foreign suppliers or customers, three questions arise: which court has jurisdiction, which law applies and where can you enforce? Within the EU, the Brussels Ia Regulation (Regulation (EU) No 1215/2012) governs jurisdiction and recognition; absent a choice of law, the Rome I Regulation determines the applicable contract law. Outside the EU, enforcing court judgments is often difficult, so we frequently recommend an arbitration clause. With US providers, check the jurisdiction and choice of law clauses in their standard contracts carefully.

FAQs

Is arbitration cheaper than court proceedings?

Not automatically. There is only one instance, but arbitrators‘ fees and administrative charges apply. For high amounts in dispute it can be cheaper and faster overall; for small amounts usually not.

Can we go to a state court despite an arbitration clause?

For interim measures, yes. On the merits only if the opponent does not raise the arbitration objection in time or the clause is invalid.

What should we secure before proceedings?

Contracts with all annexes and amendments, project documentation, tickets, emails, acceptance records, code versions and log files. Avoid changing the disputed systems until evidence has been secured.

Related topics

• IT projects in crisis
• Software, SaaS and cloud contracts
• Cease-and-desist letters
• Mediation in IT law (in German)