Best Practices in Handling Foreign Law

Background

In a legal dispute, a German court must also decide on foreign law insofar as it is relevant. This duty arises from § 293 ZPO, according to which the court is not limited to the evidence provided by the parties but is rather authorized to use other sources of knowledge and to order what is necessary for such usage.

The court must determine foreign law ex officio. How the court obtains this knowledge is at its discretion, within its duty-bound judgment. The principle of free consideration of evidence applies, meaning the court may use all means of evidence and sources of knowledge. Among the court's options is obtaining an expert opinion on foreign law. However, the expert's task is limited to answering the court's evidence questions regarding foreign law. The determination, interpretation, and application of the International Private Law (IPR) applicable in Germany, as well as the decision of the specific case (i.e., fact-finding and subsumption) by applying foreign law, remain original responsibilities of the court.

If foreign law is decisive for the decision, the court must discuss this with the parties (right to be heard) and give them the opportunity to present evidence and content. If the court has formed a preliminary opinion about the content of foreign law, for instance, based on its own research, it shall communicate this to the parties (Hamburg Guidelines (2023), Art. 2 § 2 No. 2).

The parties to the legal dispute can assist the court in determining foreign law, but they are not generally obliged to do so beyond their general duty to promote the process or cooperate. Since foreign legal norms are treated as rules of law and not as facts, the principles of burden of proof and presentation of facts do not apply in this regard (Hamburg Guidelines (2023), Art. 1 § 1 No. 3 with reference to BGH, Decision of 24 August 2022 - XII ZB 268/19). For tactical procedural reasons, however, each party should still present evidence regarding foreign law. For this reason alone, it is advisable to be represented in an international legal dispute by experienced, specialized lawyers who can confidently and competently conduct the legal dispute and persuade the court.

According to the established case law of the BGH, foreign law must be determined and applied by the competent court in the same way as it is or would be applied by the courts of the respective country (cf. BGH, Judgment of 5 July 2023 - IV ZR 375/21 para. 27).

According to the BGH, the application of foreign law is not subject to appeal (with reference to § 560 ZPO in conjunction with § 545 ZPO). The appellate court is generally bound by the findings of the appeal court on the content of foreign law. In other words, German law is subject to appeal, foreign law is not. However, the determination of foreign law is certainly subject to a judicial review by the highest court (cf. BGH, Judgment of 5 July 2023 - IV ZR 375/21 para. 24).

Hamburg Guidelines

The "Hamburg Guidelines on the Determination and Application of Foreign Law in German Proceedings" (Hamburg Guidelines), developed through intensive exchange between practice and science and published by the Max Planck Institute for Comparative and International Private Law in Hamburg, support courts, experts, and parties (including their representatives) in dealing with foreign law in international disputes. They provide in a compact form the relevant legal framework and offer a multitude of practical recommendations (Michaels/Schmidt, The Hamburg Guidelines on the Determination and Application of Foreign Law in German Proceedings, NJW 2024, 24 with further information on background, content, and perspectives).

The Hamburg Guidelines are primarily aimed at proceedings before civil courts but are also applicable in principle to other cases where German courts or authorities (e.g., tax courts, criminal courts, asylum authorities, tax offices, registries) have to apply foreign law (Hamburg Guidelines (2023), Preliminary remarks).

The Hamburg Guidelines make no statement about the international jurisdiction of German courts, as the courts must and can independently answer this question based on the relevant legal sources (e.g., Brussels Ia Regulation, Brussels IIb Regulation, §§ 97 ff. FamFG) (Hamburg Guidelines (2023), Preliminary remarks).

Summary

In summary, the Hamburg Guidelines can be considered a helpful tool for practice.

The Hamburg Guidelines are licensed under the Creative Commons License CC-BY 4.0. Published by the Max Planck Institute for Comparative and International Private Law, Hamburg. Authors are Prof. Dr. Ralf Michaels and Priv.-Doz. Dr. Jan Peter Schmidt. The Hamburg Guidelines can be accessed here.