As the German system of private international law uses nationality as one of its most important tests, peculiar problems arise where more than one system of law applies within the territory of one state. Similar problems have also arisen in consequence of the difference of legal rules within the various parts of Germany itself.
If a foreign state whose rules apply in consequence of a German rule of conflict of laws has more than one system of law on its territory that system of law applies which according to the inter-local law of the foreign state itself applies.
EXAMPLE: According to a German conflict rule Polish law is applicable.
Within Poland there is a law of 2 August, 1926, dealing with the interlocal conflict of laws. This law determines which of the various laws in force in Poland is to be applied by the German judge.
It is an open question which law applies if the various legal systems in force on the foreign state's territory have different systems of private international law without a higher system solving the interlocal conflict.
EXAMPLE: A German judge has to decide about the capacity of a British subject habitually resident in Guernsey, but temporarily staying in Scotland.
In this case it will presumably be necessary to apply mutatis mutandis the rules of the German law of conflict of laws. Guernsey law, therefore, will have to,be applied, because the German law of conflict of laws applies the test of habitual residence in cases where the nationality test is for some reason or the other incapable of being applied, section 29, EGBGB.
The question of interlocal conflict of laws has played some part in German legal history at various times.
(a) Before 1900 there were different systems of private law in Germany.
Every system had its own system of choice of law rules. These are now all obsolete.
(b) During the period from 1938 to 1945 various territories were incorporated into Germany, which had different systems of private law. During this period it was held that the German rules of conflict of laws applied...
SECTION VII - Multiplicity Of Legal Rules Within One State
|Author:||E. J. Cohn|
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