One of the objects of German private international law, which it shares with all other systems of private international law, is to lay down rules for the choice of law, i.e. rules which specify what law shall govern a case containing a foreign element. This choice of the governing law depends nearly always on some 'connecting factor' or 'point of contact' which indicates the legal system to which the factual situation under consideration is referred.
EXAMPLE: A sale by a German seller to an English buyer of goods lying in a Paris warehouse is according to English law governed by French law, because the situation of the goods provides in the view of English law the appropriate starting point.
Like all other systems of conflict of laws, German law uses several points of contact (Ankniipfungsunkte), such as the lex loci actus, the lex rei sitae, the place of performance etc. The most important point of contact, however.
is the law of the nationality of the person involved (lex patriae). This is used for all questions relating to status and for many questions relating to succession and to the law of domestic relations. In short, it covers in German law very largely the same ground which in English law is covered by the principle of domicile. The incorporation of the nationality rule into the German law of conflict of laws is the most striking development of the nineteenth century in this field of law. German law has in this respect followed the same course as the majority of European Continental legal systems, with the notable exception of Swiss, Danish and Norwegian law.
In favour of the rule of nationality it is argued that nationality is more easily ascertainable than domicile, that emigrants do not immediately acquire a sufficient knowledge of the law of the country to which they have emigrated and that a change of nationality is less frequent than a change of domicile.
Naturally the wish on the part of Governments to retain some form of contact with emigrated nationals has also played some part in the preference shown by many countries for the principle of nationality. On the other hand there can be little doubt that the nationality rule has in many cases led to most undesirable results, especially in view of modern conditions of mass emigration due to political oppression. It has not infrequently rendered the adaptation of emigrants to their new home difficult, disappointed the justified expectations of third parties who were not...
SECTION II - The Principle Of Nationality
|Author:||E. J. Cohn|
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