SECTION III - Rules Extending The Sphere Of Application Of German Law

Author:E. J. Cohn
  1. Like other systems of private international law German law contains a number of rules which result in German law being rendered applicable to cases in which according to more general principles a foreign law should be applicable. The most important of these rules are summarised in the present chapter. There is some connection between the adoption of the nationality rule by German law and the existence of these rules, because the nationality rule more often leads to the application of some foreign rule of law than does the principle of domicile. The rules to be summarised hereunder are partly designed to prevent an undue extension of the number of cases in which German Courts have to apply a foreign rule of law.

  2. According to the governing opinion among German lawyers and especially according to the view adopted in very many decisions by the German Supreme Court, German law recognises the principle usually referred to as the rule of renvoi (Riickverweisung). This principle, which is a well-known feature of many, if not of most, systems of private international law, is intended to solve the following problem, which not infrequently arises in conflict-of-law-cases. The Courts of country A have to deal with a case which under the rules of the private international law of country A is governed by the law of country B. On the other hand according to the rules of private international law of country B, the law of country A applies, in other words the law of country B 'refers the case back' to the rules of country A. The principle of renvoi means that in a case of this type the courts of country A will apply to the law of country B. This is frequently expressed by saying that the courts of country A accept the reference back or renvoi, contained in the law of country B. Another form of expressing the same idea and describing the same problem consists in stating it as follows:

    Is a reference in the conflict rules of country A to the law of country B merely a reference to the substantive law of country A or also a reference to the conflict-of-law rules of country B? If the first alternative were accepted the renvoi would be 'rejected ', because the courts of country A need not have any regard to the conflict rule of country B. If the second alternative is accepted, there is a renvoi, because the courts of country A will apply the conflict rule of country B, which results in the application of the law of country A. The problem is of particular importance in the relationship between the Continental systems of private international law and the commonlaw-systems, because the fact that the former use nationality and the latter domicile as the point of contact results in producing many instances of renvoi.

    EXAMPLE: A German Court has to decide whether A, an Englishman domiciled in Cologne has capacity to conclude a contract. The German rules of conflict of law use nationality as the point of contact. The German Court would in...

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