Article 2: Guidelines for the Court

§ 1 Finding the applicable law

1. In principle, the applicable law in Germany is German law. But there are cases in which that very law, in particular Germany’s rules of private international law, requires that foreign law must apply or be considered. This occurs most frequently in the following circumstances:

• where the private international law rules applicable in Germany call for the application of foreign law;

• where it becomes necessary to determine whether an element of a German rule or norm can be satisfied by acts taken or transactions executed abroad (Substitution);
  Example: May a foreign notary perform the required notarization under § 129 of the BGB?

• where the parties executed a contract or the testator executed a will in the mistaken belief that the transaction or instrument would be governed by foreign law, and the foreign law must be consulted to discover the meaning of its provisions (Handeln unter falschem Recht or acting under the wrong, i.e., non-applicable, law);

• when the rules of safety and conduct in a foreign country must be taken account of, for example with regard to foreign traffic laws (see, e.g., Article 17 of the Rome II Regulation);

• for domestic litigation, to determine whether an action is pending before a foreign tribunal, and if so, when the foreign tribunal became seized of it;

• where the issue of reciprocity arises in regard to recognition and enforcement in Germany of a foreign judgment from outside the European Union pursuant to § 328, para. 1, no. 5 of the ZPO;

• where proceedings for the recognition and enforcement of a foreign judgment raise the question of whether the foreign adjudication was manifestly incompatible with core principles of German law;
  

• where proceedings for the recognition and enforcement of a foreign judgment or order raise the question of whether the instrument is final under the law of the jurisdiction that issued it (e.g., in the context of support claims certified by a government agency);

• when a criminal prosecution requires determination of whether an act solemnized under the applicable foreign family law (e.g., a marriage) furnishes grounds for a witness to refuse to testify; or

• in tax law, where “linking rules” align the tax treatment of an entity or issue (e.g., whether an expenditure constitutes a deductible business expense) with the tax treatment of the underlying entity or issue under foreign law (e.g., under §§ 4i, 4k of the EStG).

In each of these cases, the court must independently determine whether foreign law applies or must be considered – which is not the same as conducting an investigation to ascertain the content of that law (→ Article 1, § 1, no. 1).

2. Any application of Germany’s rules of private international law also entails interpreting those rules, for example to determine whether an aspect of the case is “manifestly more closely connected” with another country within the meaning of Article 4(3) of the Rome II Regulation. Problems of what is often called “characterization” (e.g., determining whether the applicable standard of proof or the admission of prima facie evidence is governed by foreign tort law or by the German rules of civil procedure) are, in principle, also to be determined by the court. On characterization, see also → Article 3, § 4, nos 3, 4.

3. It is also for the court to determine whether Germany’s private international law rules refer the issue to the foreign substantive law or to the foreign jurisdiction’s private international law rules (see Article 4(1), (2) of the EGBGB). If the German private international law rules refer the matter to foreign private international law rules, then those rules determine what law applies, and the court may consult an expert in such a case (see below → Article 2, § 5). If the court has reviewed foreign private international law rules, this fact is to be indicated in the decision even if those rules do not call for “renvoi”, which is to say, for German law to apply (but also see → Article 2, § 1 no. 5).

Examples:

• Where an issue arises of the parentage of a child who habitually resides in France, the court must examine whether French private international law refers the issue to German law or possibly even the law of a third state (renvoi). Article 19(1), (1) EGBGB; Article 4 (1), (1) EGBGB.
  

• Where the last habitual residence of the deceased was in South Africa, the court must determine whether the private international law rules of South Africa refer the issues to German law or possibly even to the law of a third state. Article 21, para. 1 & Article 34 of the European Succession Regulation. South Africa is among the many non-European jurisdictions whose private international law rules subject succession to real property to the law of the place where the property is located, resulting in renvoi where real property is situated in Germany.

Case law: BGH, Beschluss of 4 October 1990 – XII ZB 200/87, IPRspr 1990-73 (= NJW 1991, 3088 (3090)).

4. Where the German rules of private international law refer an issue to the law of a foreign country that is politically subdivided into distinct jurisdictions (see Article 4, para. 3 of the EGBGB), the court must determine, on its own, whether the private international law rule in question refers the matter directly to the law of the pertinent political subdivision or whether there are internal conflict-of-laws rules in the foreign country that should be consulted first. The court may seek the opinion of an expert to ascertain such rules, or even to determine whether the foreign jurisdiction comprises several distinct jurisdictions in the first place.

Examples:

• Under Article 11, para. 1 of the Rome I Regulation, the formal validity of a contract is governed by the law of the place where the contract was made, for example the United States. Each US state is a political subdivision that for private-law purposes constitutes a separate jurisdiction. Pursuant to Article 22, para. 1 of the Rome I Regulation, each territorial unit counts as its own country, such that Art. 11, para. 1 of the Rome I Regulation refers directly to the law of the state in which the contract was formed. Hence, parties who contract in Miami, for example, do so subject to the formalities prescribed by Florida state law.
  

• When a succession case involves the law of the United States – e.g., because the testator’s last habitual residence was there, see Art. 21, para. 1 of the European Succession Regulation – then Art. 36, para. 1 requires ascertaining whether the law of the United States has internal conflicts rules that determine which state’s law should apply. The answer is no, and so the applicable law is to be ascertained under Article 36, para. 2 of the European Succession Regulation.
  

• Pakistani family law contains different rules for members of different religions. If Germany’s private international law rules refer an issue to the law of Pakistan, say, because one of the parties to a marriage is Pakistani (see Article 13, para. 1 of the EGBGB), then the first sentence of Article 4, para. 3 of the EGBGB refers the question of the applicable religious law to the interpersonal conflict-of-laws rules of Pakistan.

5. Where the result would be the same under either the foreign or the domestic law, normally it is moot to determine which law actually applies. In principle, only an appellate court needs to determine the applicable law, because only questions of German law are reviewable; questions of foreign law are not. An exception to this is when the foreign law would be contrary to German public policy, since in that case, German law would supply the missing rule and thus apply in either case.

Case law: OLG Hamburg, Beschluss of 29 March 2021 – 2 W 17/20, IPRspr 2021-3 (= IPRax 2023, 90).

Note: The same is true for the appellate courts (“Beschwerdegerichte”) under the FamFG.

§ 2 The court’s duty to investigate the foreign law

1. The court must investigate the foreign law ex officio and as a rule must apply it as would a court of the foreign jurisdiction.

Statutory authority: ZPO § 293.

Notes: Investigating the law that applies in another country is the trial court’s responsibility, also to the extent a referral to the Court of Justice of the European Union depends on it (BGH, Urteil of 25 January 2022 – II ZR 215/20, IPRspr 2022-110).
Adversarial proceedings in matrimonial and family-law matters are made subject to ZPO § 293 by FamFG § 113 para. 1, sent. 2.In non-contentious proceedings under the FamFG, the case-law on ZPO § 293 is to be taken into account as well.

2. The right to a fair hearing requires that if foreign law will supply the rule of decision, the court must instruct the litigants about this fact and must give them the opportunity to submit evidence to establish the content of the foreign law. If the court develops a preliminary view based on its own investigation of the content of the applicable foreign law (→ Article 2 § 3 no. 1), it must communicate it to the parties.

3. In summary proceedings, the court’s duty to conduct an investigation into the applicable foreign law is, in principle, the same as in ordinary proceedings. However, given the expedited nature of the action, it may be impossible to establish the content of foreign law. See below → Article 2 § 7.

4. If only property rights or other economic interests are at issue and the parties make detailed, concurring submissions as to the applicable foreign law, the court may accept these submissions as correct without violating its duty to conduct an investigation as long as the submissions are sufficiently persuasive and the court can tell they rely on good legal authority. However, in proceedings to determine questions of personal status or that affect the rights of non-parties, particularly in family law, the court is normally barred from assigning such weight to submissions by the parties. On submissions by the parties, see → Article 4.

Case law: BAG,Urteil of 10 April 1975 – AZR 128/74, IPRspr 1975-30b (= NJW 1975, 2160)

5. If a party submits an opinion by a private expert, it weighs the same as other kinds of party-submitted documentary evidence. The court must evaluate it as it would any other item within its duty to conduct an investigation.

§ 3 Establishing the content of the applicable foreign law

1. Proof of foreign law is only required to the extent the foreign law is unknown to the court. This means that the court may investigate the applicable foreign law on its own, above all by consulting the publications and online resources at its disposal, possibly combined with the use of machine translation tools. The court will thereby often be able to establish the context of the applicable foreign law with sufficient certainty.

Notes: The court’s own investigation will often suffice in less complex cases. Even if inconclusive, it can still form the basis for instructing the parties (on which see → Article 2, § 2, no. 2) and ordering an expert opinion (on which see → Article 2, § 6).

A regularly updated list of standard German-language literature on private international law is available here.

Two other major German-language sources on foreign law subjects are the series IPG: Gutachten zum internationalen und ausländischen Privatrecht, which collects expert opinions, and IPRspr: Die deutsche Rechtsprechung auf dem Gebiete des Internationalen Privatrechts, which aggregates court decisions (www.iprspr.de). Many opinions of the CJEU also contain detailed indications on the law of various countries.

2. If the court is still uncertain after exhausting its own resources – perhaps because it could not find unambiguous statutory language or pertinent rulings by the high court of the jurisdiction in question (on which see → Article 2, § 3, no. 4) – the court may resort to the following methods of establishing the content of the applicable foreign law:

• if the applicable foreign law is known or readily accessible to the parties (especially when the parties are from the relevant country), the court may instruct them to submit evidence of its content in the form of statutory texts or court decisions, indicating sources and providing a simple translation if necessary;

• the court may resort to the European Convention on Information on Foreign Law of 1968 (the “London Convention”);
  

• the court may search the European e-Justice Portal (https://e-justice.europa.eu)
  

• the court may seek information from German embassies, consulates and government ministries or from one of the German chambers of commerce abroad;
  

• the court may consult an expert opinion obtained in a different proceeding that addresses the same issue and that is not so old as to be unreliable (ZPO § 411a); or
  

• the court may seek an expert opinion.

Notes: The European Convention of 1968 on Information on Foreign Law (the “London Convention”) only permits abstract questions, not case-specific questions, and answers are only given in the form of verbatim statutory language or judicial opinions. Thus, seeking legal information under the London Convention is only recommended where the court can tide its way with abstract answers to particular questions (→ Article 2, § 3, no. 4). The court must consider the costs incurred for translation as well as what is often a slow turnaround. Experience shows that some countries cooperate far better than others.

Liaison judges from the European Judicial Network in civil and commercial matters can assist in procuring statutory texts and foreign decisions; however, their role does not consist in providing legal opinions.

On seeking information from embassies, chambers of commerce and other institutions, see BGH, Urteil of 16 October 1986 – III ZR 121/85, IPRspr 1986-3 (= NJW 1987, 591); BFH, Urteil of 7 December 2017 – IV R 23/14, IPRspr 2017-3, marginal note 39 (= BStBl II 2018, 444, marginal note 39); BGH, Beschluss of 24 May 2017 – XII ZB 337/15, IPRspr 2017-304 (= NJW-RR 2017, 902).

3. The court has discretion to decide how to investigate the foreign law as long as it is consistent with the court’s duties and conducive to the goals stated in → Article 1, § 2. The more complex and unfamiliar the applicable law is relative to the law of the forum, the higher the call for a diligent investigation. While the court must determine the scope of the investigation, party submissions can be influential, including a private expert’s opinion. The court must grapple with party submissions commensurate with their level of detail.

Case law: BGH, Urteil of 30 April 1992 – IX ZR 233/90, BGHZ 118, 151 (= IPRspr 1992-265 = NJW 1992, 2026); BGH, Urteil of 14 January 2014 – II ZR 192/13, IPRspr 2014-276 (= IPRax 2017, 517); BGH, Beschluss of 26 April 2017 – XII ZB 177/16, NJW-RR 2017, 833; BGH, Beschluss of 17 May 2018 – IX ZB 26/17, IPRspr 2018-297 (= EuZW 2018, 732); BGH, Urteil of 18 March 2020 – IV ZR 62/19, IPRspr 2020-99, marginal note 24 (=EuZW 2020, 580).

4. If additional information would be hard to obtain, in straightforward cases the court may rely on black letter law as long as nothing indicates that the foreign courts deviate from it in practice. There is no need to seek an in-depth expert report to resolve a well-defined issue that seems ordinary enough to the court. Before rendering a decision on such a basis, the court will instruct the parties about its intention.

Notes: In a case concerning a standard matter of Ecuadorian family law, the BGH, Beschluss of 24 May 2017 – XII ZB 337/15, IPRspr 2017-304 (= NJW-RR 2017, 902), ruled it sufficient for the lower court to rely substantially on information from the Ecuadorian embassy. In another ruling, the BGH ruled it sufficient for the lower court to rely on a translation and explanation of the relevant foreign statute in the German academic literature (Beschluss of 26 April 2017 – XII ZB 177/16, NJW-RR 2017, 833, marginal note 25). The ruling in BGH, Urteil of 21 January 1991 – II ZR 49/90, IPRspr 1991-1b (= NJW-RR 1991, 1211) (“prendas navales”) makes it clear that an in-depth account of the foreign law in practice is required only where shown to deviate from the letter of the law. And while the BGH, Urteil of 18 March 2020 – IV ZR 62/19, IPRspr 2020-99, marginal note 24 (= EuZW 2020, 580), held it insufficient for the lower court to rely on its own loose translation of an applicable foreign norm, this precedent is likely of no consequence if there is no doubt about the substance of the norm and no sign that the foreign practice deviates from it.

That the BGH in its Urteil of 14 January 2014 – II ZR 192/13, IPRspr 2014-276 (= IPRax 2017, 517) ruled information obtained under the London Convention (→ Article 2, § 3, no. 2) insufficient was because the foreign government agency did not respond completely to the question put to it.

5. In view of the cost and delay of obtaining an expert opinion, the court should only engage an expert if it has found that the applicable foreign law cannot be investigated to sufficient certainty by any faster, simpler and less expensive means. Cost alone, however, even if far in excess of the amount in controversy, does not obviate the need to obtain an expert opinion.

Case law: BGH, Urteil of 14 January 2014 – II ZR 192/13, IPRspr 2014-276 (= IPRax 2017, 517).

6. In deciding how diligently to investigate the applicable foreign law, the court should bear in mind that in many jurisdictions, the case law and legal literature are often much less extensive than in Germany, such that not even a major investigation would get a clearer answer. A merely abstract notion that the foreign law could be other than it appears does not call for further investigation.

§ 4 Particulars in proceedings to determine fee waivers and legal aid

1. The court may not deny a fee waiver or legal aid application based on a summary review of foreign law if there is a non-negligible possibility that the application of foreign law would support the applicant’s legal position. If arriving at final judgment ultimately requires that an expert opinion should be sought, a fee waiver or legal aid should be granted, and an expert opinion should be sought in the main proceeding.

2. As to the application and interpretation of the rules of private international law, the same principles apply to proceedings to determine fee waivers and legal aid as apply in the main proceeding (→ Article 2, § 1).

§ 5 Choosing and contacting an expert

1. Usually, the question of who to nominate as expert should be settled before the order for evidence to be taken is drafted (→ Article 2, § 6, no. 1). This should be done in consultation with the parties.

2. The choice of an expert is guided by the general provisions, primarily ZPO §§ 404, 406. In particular, the expert must be capable of ascertaining the relevant details of the applicable foreign law from primary sources. While desirable, prior expertise in the applicable foreign law is not strictly necessary. Also desirable is a firm understanding of private international law and of general comparative law.

3. The pool of potential experts includes the membership of academic institutes for the study of foreign law and duly qualified university teachers, as well as independent experts, who may be practicing attorneys as long as they possess specialized knowledge of the foreign jurisdiction. Such knowledge may be shown by university studies or a licence to practice law in the relevant jurisdiction, for example.

4. The expert does not need to be based in Germany but may also be based in the pertinent jurisdiction, which can even help to establish the foreign practice more quickly and reliably. But there are potential drawbacks to nominating an expert based abroad: difficulties of translation; lack of awareness of German private international law rules and procedure, especially the formal and substantive standards that govern expert opinions; lack of material options for compelling or sanctioning an expert outside Germany.

Note: Engaging an individual who resides abroad to submit a written report (ZPO § 411 Abs. 1) does not require process under Article 19 of the European Union Taking of Evidence (Recast) Regulation of 2022 because it does not amount to an exercise of sovereign authority. Nor does it constitute an inadmissible circumvention of judicial assistance according to § 63 of the ZRHO. Subpoenaing the expert to amplify the report during oral testimony (ZPO § 411, para. 3) does not necessitate a formal request unless the subpoena threatens sanction or penalty. However, securing the foreign expert’s oral testimony via videoconference (ZPO § 128a, para. 2) does require a request for judicial assistance.

5. After the court has identified an expert but before it issues the order, the court should exchange letters, emails or phone calls with the candidate to see if they can accept the engagement. This avoids sending the case files back and forth and revising the order if the person declines.

6. Once the person has declared their general ability and willingness to provide an expert opinion, they should be sent the case file for preliminary review.

Note: Sending the case file is recommended for two reasons. One, the court cannot always be sure what facts are relevant. Two, sending the file permits potential conflicts of interest to be identified and aired early in the proceedings. On conflicts of interest, see also → Art. 3, § 1, no. 2.

§ 6 Drafting the order for evidence to be taken (the Beweisbeschluss)

1. The Beweisbeschluss, the order for evidence to be taken, must set forth the issues of foreign law, identify the nominated expert, and set a deadline for submission of the report. In some cases, the order should summarize the facts the expert should base his analysis on (→ Article 2, § 6, no. 9) and make indications about an advance of costs (→ Article 2, § 6, no. 11).

2. The question concerning which evidence is to be taken (the Beweisfrage or -fragen if there is more than one) should be formulated in accordance with the general division of responsibilities between court and expert (→ Article 1, § 1). In particular, the court cannot delegate its task of consulting and applying Germany’s rules of private international law. Nor can it pose questions about the validity of the case in general or particular claims of the plaintiff. On the court’s task of applying the law to the operative facts, see → Article 2, § 9, no. 1.

3. In formulating its questions, the court should mind that foreign law may differ from German law in its doctrinal structure (see also → Article 3, § 1, no. 6). If possible, the court should ask open-ended questions aimed at establishing the content of the applicable foreign law.

Examples:

• Rather than limiting the scope of the question to damages in breach of contract, the court should consider phrasing the question to cover extracontractual liability too (as long as the same foreign law applies). The issue is then not one of “contractual liability”, but simply one of “liability”.

• Rather than simply asking whether a particular act results in a valid testamentary disposition under the applicable foreign law, the court should consider including the possibility that the act in question constituted a lifetime donation as well.

4. Notwithstanding that the court should formulate open-ended questions, the issues should always be limited to those aspects of the foreign law that are relevant to deciding the controversy.

Example: If the validity of a will is disputed, instead of framing the issue as, “What is required in order for a will to be effective in Turkish law?”, the question should specify the occasion for doubt as to validity. For instance, consider framing the question as:

• What formal requirements does Turkish law impose on the making of wills?

• Does Turkish law permit an agent to make a will on behalf of the testator?

5. If the relevant aspects of the applicable foreign law can be clearly defined, the court should formulate its questions in the abstract.

Examples:

• “How is intestate succession regulated in the law of Tunisia?”
  
• “Under Polish law, does a plaintiff’s compensable loss include pre-litigation attorney’s fees?” (For automobile accidents, though, this question can be answered by consulting the German-language literature on Polish law.)
  
• “Concerning transnational corporations, does Namibian law adhere to incorporation theory, or how else does it determine the applicable law?”

6. If an abstract question appears ill-advised because it would be overinclusive of irrelevant matter or because the court cannot confidently frame the legal issue in terms of a definite aspect of the applicable foreign law, then the court should formulate the question in a case-specific way.

Example: The question should not be, “How is a contract formed under the law of England?” but rather, “Under English law, do the particulars related herein [→ Article 2, § 6, no. 9] give rise to a valid a contract?”

If possible, the pivotal issue should be specified: “Under English law, given the factual pattern related herein [→ Article 2, § 6, no. 9], did Smith contract in his own behalf or in behalf of Turner?”

Mind that it is for the court to apply the pertinent law to the operative facts, and also to interpret the contract. However, experts may deliver their own conclusions as to those issues as well (→ Article 2, § 9, no. 1; → Article 3, § 3, no. 5, and → Article 3, § 5).

7. The order may also seek discussion or disputation of party submissions, including of a private expert’s report (→ Article 2, § 2, no. 5).

Example: “Under Spanish law, is the managing director of a stock corporation bound to carry out directives of the board? The memorandum should include critical analysis of the letter of M.S., attorney with the law firm of T.C., dated 26 February 2019.”

8. Where possible, the questions of foreign law should be inclusive enough to avoid the need for a supplementary report (see also → Article 2, § 8, no. 2). In some cases, it will be advisable to stagger the questions or make some questions contingent on others.

Examples:

• “1. Given the facts related herein, do California’s conflict-of-laws rules refer the issue back to German law?
  2. If you conclude that the answer to number 1 is no, [question of California substantive law].”

• “1. Given the facts related herein, did the parties conclude a valid contract under Chinese law?

• 2. If you conclude that the answer to number 1 is yes, then does the Chinese law of contracts furnish a basis upon which plaintiff can seek the recovery she claims, and in the amounts that she claims?

• 3. If you conclude that the answer to number 1 is no, does Chinese law furnish any other basis upon which plaintiff may seek the recovery she claims in terms of compensatory and consequential damages, and if so, what must be shown in order for her to recover on that basis?”

9. The order will set forth as much as possible the facts to be assumed by the expert (→ Article 2, § 6, no. 1). The court should keep in mind, however, that the set of relevant facts itself can depend on the applicable foreign law (→ Article 2, § 6, no. 10; on charging the expert with construing the facts, see → Article 3, § 2, no. 3).

Statutory authority: ZPO § 404a, para. 3.

Examples:

• “The expert should proceed on the basis of the following facts. On 24 June 2018, the parties contracted for the delivery of metal pipes. The defendant subsequently failed to deliver by the agreed dates. For this eventuality, the contract contemplated […]. The defendant’s position is that this term constitutes an unenforceable liquidated damages clause under English law […].”

• “The expert should assume that the petitioner is not the biological father and the adverse party not the biological mother of the child.”

10. The order may clarify that the set of relevant facts or facts to be investigated turns on the content of the applicable foreign law.

Example: “Under French law, does liability turn on whether the defendant was aware of a particular circumstance?”

11. The court’s duty to investigate the applicable foreign law forbids it from making the engagement of an expert contingent upon a cost advance.

Case law: BGH, Urteil of 17 September 2009 – I ZR 103/07, NJW-RR 2010, 1059.

Note: In practice, cost advances are often requested by the court and paid by the parties.

12. The court will set a reasonable deadline for the expert to submit his report. The expert must provide a signed copy of the report. It is recommended that the court consult with the expert before setting the deadline.

Statutory authority: ZPO § 411, para. 1.

13. If not already done, the expert should be sent the case file no later than upon being nominated (→ Article 2, § 5, no. 6).

§ 7 Inability to establish the foreign law

1. Failure to ascertain the applicable foreign law does not justify either dismissal of the lawsuit or a decision based on an assumed burden of proof.

2. If it is largely or totally unworkable to investigate the applicable foreign law, the court must not simply apply German law instead. Rather, it must see if it can compensate for the missing rule, perhaps by drawing – with the help of an expert opinion – an appropriate inference from known elements of the foreign law or by consulting a different foreign law that is closer in substance to the one in question. Historical or comparative law considerations as well as private international law principles can be grounds for finding that a different jurisdiction’s substantive law is a close proxy.

3. The same considerations apply if the contemplated investigation would be unreasonably time-consuming, especially where it would probably still be inconclusive.

§ 8 Handling the expert’s report

1. Often it will not be possible to give a definitive answer to a question of foreign law (see also → Article 2, § 3, no. 6). If no significant doubt can be substantiated to indicate that the findings are implausible or incorrect, the court may decide based on the given investigation, including any expert reports.

2. If the parties raise questions or register doubts about the correctness of the report, the court will not immediately elicit a response from the expert. Instead, the court will consider whether the parties’ questions are relevant and substantial enough to warrant further investigation or are already covered by the existing report. Speculative arguments will not disturb well-substantiated statements of foreign law in the report.

Examples:

• In a detailed response, counsel for one side casts doubt on various aspects of the report. The court does not seek a blanket rebuttal from the expert, but rather evaluates the relevance and probative value of the objections. If they are substantial, the court formulates follow-up questions for the expert.

• The report sets forth in detail, citing ample authority, that the Namibian law applicable to transnational business organizations abides by incorporation theory. Counsel for one of the parties inquires whether seat theory could apply anyway, but is unable to substantiate the concern. The court should dismiss the inquiry as unsupported.

3. The expert’s oral testimony (which may be obtained via videoconference, see ZPO § 128a, para. 2) may be useful to clarify or complement the written report, but often it will not add anything new. In the interest of saving time and money, the recommended approach may be to give the expert a list of questions in advance. Experience shows that many times, written amplification or complementation of the report will do.

Statutory basis: ZPO § 411, para. 3.

Note: The recommendation to stick to written procedure does not apply to expert opinions on the content of foreign law in criminal proceedings, because in that setting, purely written procedure would violate the principle that proof-taking must proceed in open court.

4. To the extent the expert has independently construed the relevant facts (→ Article 3, § 2, no. 3), the court must review the accuracy of the expert’s conclusions.

§ 9 Applying foreign law to render a decision or ruling

1. It is for the court to render a decision based on the applicable foreign law. In particular, this means the court must apply the foreign law to the facts independently. If the expert advances a legal conclusion on the basis of the applicable foreign law (see also → Article 3, § 3, no. 5 & § 5), the court must nonetheless arrive at its own conclusion.

2. In the reasons for its decision, the court must show how the foreign law was investigated, tracing not only the selection of sources but, if doubt still exists as to the content of the foreign law or its sources, also assessing the persuasiveness of the cited authorities (see also → Article 2, §§ 2, 3).

Note: If it is not clear from the reasons for the judgement that the trial court upheld its duty to adequately investigate the applicable foreign law, it is grounds for reversal on appeal, because the appeals court will infer that the foreign law was not adequately investigated (BGH, Urteil of 20 July 2012 – V ZR 135/11, MDR 2012, 1077 marginal note 16; BGH, Beschluss of 6 October 2016 – I ZB 13/15, IPRspr 2016-219, marginal note 66 (= NJW-RR 2017, 313 marginal note 66).

3. The court must not refer to the expert report in blanket fashion. Instead, it must set forth the contents of the report that were relevant to the court’s own conclusions and explain why the court adopted these as its own. If the contents of the report are disputed, the court must do just as it does in appraising evidence in general: set forth why its decision is or is not guided by disputed elements of the report. The court must refer to the report with maximum precision but also uphold its duty to protect anonymity (for example, by referencing the date and the expert’s internal file number).

4. The court’s reasons for its decision must indicate as completely as possible the primary and secondary sources it is based on. If any part of the decision turns on verbatim language, the source must be quoted directly. Sources in a language other than English should have a German translation appended to them. For both source text and translation, official sources should be identified and cited by name. If the court resorts to any kind of unofficial translation, it should give reasons for doing so.

5. If the court was unable to identify sufficient sources, the reasons should set forth the court’s search methods and places consulted.

6. The expert should receive a copy of the decision at the conclusion of the proceedings. Copies should also be sent to the indicated collections (e.g., IPRspr, IPRax) as well as to law journals that cover the particular area of substantive law (such as FamRZ for decisions involving foreign family law).