Article 3: Guidelines for Experts

§ 1 Preparation and observations

1. Upon receiving an inquiry from the court (→ Article 2, § 5), the expert will act without delay to determine whether the engagement is within his expertise and whether he can deliver his report by the deadline. If not, he must notify the court without delay.

Statutory basis: ZPO § 407a, para. 1.

2. The expert must act without delay to determine whether there is any reason to doubt his impartiality. If so, the expert must notify the court right away.

Statutory basis: ZPO § 407a, para. 2.

Note: This can be a particular issue if not many people in Germany deal with the jurisdiction in question, because then the expert will often be personally acquainted with counsel for one of the parties. The personal acquaintance of counsel and expert by itself does not pose a conflict of interest.

3. If the expert is uncertain about the scope or content of the engagement, he must seek clarification from the court without delay. If the investigation appears likely to incur disproportionate costs in relation to the controversy or costs significantly in excess of a requested cost advance, the expert must timely notify the court.

Statutory basis: ZPO § 407a, para. 4

Notes: The consequences of a failure to notify the court of disproportionately high costs are addressed in § 8a, para. 3 of the JVEG. The consequences of a failure to notify the court of costs in excess of a cost advance are addressed in § 8a, paras. 3 & 4 of the JVEG; and see → Article 3, § 6, no.2.

The expert need not repeatedly draw attention to the disproportionate expense or to the fact that a cost advance stands to be exceeded. It is up to the court to communicate unambiguously the amount of any advance. If the situation repeats and the expert again recognizes that the costs will exceed a second advance, he must again notify the court before incurring such costs.

4. Experts should verify the court’s assessment of how private international law applies to the case (→ Article 2, § 1). If the expert concludes that the case does not call for an investigation into the foreign law because German law ought to apply, then the expert must notify the court to avoid unnecessary costs. The same goes for when the file indicates that the factor that determines the applicable law needs clarification (e.g., a person’s nationality or habitual residence).

Statutory basis: ZPO § 407a, para. 4

5. The expert will also notify the court if the order is not readily comprehensible or if it goes against the requirements stated in → Article 2, § 6.

Examples:

• The facts of the case are highly complex and disputed. The expert asks the court to establish a set of facts for him to work with.
  

• The court has formulated the issue broadly, asking what is required for a contract to be formed in English law. The expert studies the file and finds that the outcome turns on a much narrower question (e.g., whether a contract was concluded by means of representation), so the expert suggests that the court should limit its inquiry accordingly. In a situation like this, the expert may alternatively proceed as described in → Article 3, § 1, no. 7.

6. The expert should make sure that his answers to the court’s questions about the applicable foreign law will help the court determine the issues. If the expert concludes that the adjudication would be better served by different questions, the expert must notify the court, particularly where this conclusion is based on the expert’s knowledge of the foreign law.

Examples:

• In line with German matrimonial practice, the court asks about the financial disclosures the spouses are entitled to under the applicable foreign law. But the spouses have no claim to such disclosures under that law, which instead authorizes the family court to conduct an investigation. The expert report will explain this different mode of gathering information and suggest potential ways to reconcile the two.

• The court seeks a report on English law about rules analogous to the German rules on the division of marital property in divorce. The expert advises that England, unlike Germany, is not a community property jurisdiction, so different mechanisms apply, such as alimony payments and asset transfers. The expert may also proceed as described in → Article 3, § 1, no. 7.

7. The expert may make slight modifications or deviate from the letter of the order without coordinating with the court if it obviously furthers the purpose of establishing the content of the foreign law, the expert deems it unproblematic, and he details what was done in his report (→ Article 3, § 2, no. 2).

8. It is recommended (but not formally required) that the expert estimate his expenditure in terms of hours as precisely and realistically as possible and provide his estimate to the court. (On what happens when the expert’s fee exceeds a cost advance, see → Article 3, § 6, no. 2). If the expert realizes he will likely not meet the court’s deadline, he will inform the court of a completion date that is feasible for him, but with due regard to the urgency of the proceedings (e.g., in child custody or international child abduction cases).

9. Because rendering an expert opinion on the applicable foreign law requires specialized legal and linguistic knowledge, it is appropriate to award the highest category of fees as provided in § 9, para. 1 of the JVEG, Anlage 1.

Case law: OLG Dresden, Beschluss of 23 January 2019 – 3 W 652/18, IPRspr 2019-350 (= NJW 2019, 1236).

10. In certain kinds of cases, for instance with very large amounts in controversy or where investigating the applicable foreign law promises to be very laborious, the expert’s fee may deviate from the statutory fee schedule pursuant to § 13 of the JVEG.

11. If the expert declines the engagement, he can nonetheless assist the court by informally directing it to pertinent German-language legal literature, potentially relevant aspects of private international law, or to someone the court might approach instead.

12. Experience shows that phone calls between court and expert often get far better results than written correspondence.

§ 2 The expert opinion: General purpose and methods

1. The opinion should respond to the questions in a way that enables the court to determine the substantive issues on its own as warranted by the findings of the investigation (→ Article 2, § 2, no. 1).

2. If the expert believes that the order is overbroad or will not accomplish that aim, he should suggest specific changes. The expert can also deviate from the order without coordinating with the court if it is sure to further the interest of resolving the dispute. For example, the expert may rephrase an issue or disregard an issue that is immaterial to the adjudication. The report must explain the expert’s approach.

Examples:

• The court asks several questions about the requirements for a damages claim under foreign law, as well as about when such a claim is subject to prescription. The expert realizes that the claim is prescribed, and so he prioritizes this issue and does not reach the other questions, because responding to them would be laborious and the answers irrelevant to the outcome of the case. The expert’s report explains this approach but makes clear that the expert is prepared to respond to the other questions if the court so requests.
  

• The report sets forth the order verbatim, followed by “I take the court’s question to mean that the issue is […]”.

3. If the court sets forth facts for the expert to regard as established (→ Article 2, § 6, no. 9), then he must stick to them. If the court has not provided such a summary and the expert does not request one (→ Article 3, § 1, no. 5), then it is up to the expert to construct and set forth in his report a factual account based on the case file (→ Article 3, § 3, no. 1). Once the court receives the report, the court must determine whether the expert’s account is accurate.

4. The expert must strive to determine and present the content of the applicable foreign law as it would be applied by a court of the foreign jurisdiction. This means foremost that the expert must consult and evaluate statutes and any high-court or pertinent lower-court decisions, regardless of whether court decisions are looked upon as legal authority in that jurisdiction. If this approach fails to yield clear results, the court’s questions are to be addressed through other sources, in particular through legal literature or accounts of administrative practices. For any of the above, the expert must take into account the relevance or weight of a given statute, scholarly opinion or other authority in the foreign legal practice.

5. The expert is free to consult informally with other persons who have expertise in the applicable foreign law in order to confirm or complement his findings. His report must identify any information obtained this way.

Examples:

• “Personal written communication, Professor Silvia Lopez, Catholic University, Lima, Peru, 25 January 2021.”
  

• “Personal oral communication from the director of the Ahmadiyya Court of Arbitration in Offenbach, 3 July 2022.”

§ 3 Contents of the report

1. The report opens with a statement of the facts, either per the court’s instructions (→ Article 2, § 6, no. 9) or as constructed by the expert from his own review of the case file (→ Article 3, § 2, no. 3).

2. The report sets forth the foreign law only to the extent necessary, whether to resolve the issues or to facilitate the reader’s understanding. The report avoids gratuitous excursions, such as lengthy historical accounts not directly connected to current law. Responses to abstractly formulated issues (→ Article 2, § 6, no. 5) are reduced to what the expert deems essential to resolving them.

Example: If the order seeks to discover the Tunisian rules of intestate succession, but all the heirs are first-order heirs, then no discussion is needed of who is next in line or of any of the rules concerning representation.

3. The report indicates as completely as possible the primary and secondary sources upon which the expert bases his opinion. If any element of the opinion turns on verbatim legal language, the report cites the operative language directly, along with a German translation of any source-language other than English. Where possible, the original and the translation should both be cited from official publications identified in the report. If the report cites an unofficial translation, the expert should state his reasons for resorting to an unofficial source.

4. If sufficient sources or authorities cannot be found, the report will say what places or resources were consulted or searched or queried and by what means or methods.

5. It is for the court – not the expert – to apply the foreign law to the facts (→ Article 2, § 9, no. 1). However, if the order asks the expert to investigate the foreign law specifically in relation to the case (→ Article 2, § 6, no. 6), and if the operative facts are not disputed or if the court has set them forth directly, then the expert may also state the substantive conclusion or conclusions that would follow from his findings. This can help avoid uncertainty and misunderstanding.

Examples:

• If the expert concludes that the applicable foreign law holds the seller liable for certain kinds of representations about the quality of the goods, as a rule the court is better situated than the expert to determine whether the seller’s representations satisfy the relevant standard in the present case. On how to proceed if the relevance of one question depends on the resolution of a prior question, see → Article 3, § 3, no. 7.

• In a succession case, if the degrees of kinship or the relationship of the heirs to the deceased is settled, the expert will typically not just report on the abstract rules of intestacy, but rather will state the outcome in this particular case. I.e., “The surviving spouse is entitled to one-quarter of the estate, the son to three-quarters.”

6. If a reasonably intensive and extensive investigation of the applicable foreign law still does not yield clear answers to the court’s questions, the report will fully disclose the extent of uncertainty. If possible, the report will then prognosticate about how a court of the jurisdiction would decide. The prognosis may be based on the expert’s own experience and consideration of comparative law.

7. If the questions are presented in a prescribed sequence, but the expert realizes that a certain ruling on one issue would render the other issues irrelevant, this can be handled in two ways. Either the expert can refer priority questions back to the court so the court can determine them first (perhaps aided by an interim report), or the expert can address the issues in the order he sees fit. The case itself will dictate which approach makes the most sense in light of the express goals of the expert opinion procedure. See → Article 1, § 2.

Example: Whether the English private international law rules call for the application of German law in a succession case depends on whether the decedent was last domiciled in England or Germany. Determining the domicile requires weighing certain objective as well as subjective factors, and it can only be done by the court.

Whether the expert ought to seek resolution of the domicile issue before analysing the outcome under English substantive law depends on how elaborate the explication of English law would be. If short and straightforward, it may be best to proceed with a plenary response to all the questions. But if that would be time consuming and expensive, it may be best to clarify the relevance of contingent issues first.

8. In general, the expert should permit his report to be disseminated for reference in other cases. This permission should be unconditional, provided that his authorship is duly indicated and that the report is shared in its entirety and with no modifications.

Note: This directive mainly aids the courts, which ought to be able to compile and share expert opinions on foreign law amongst the judiciary. Keep in mind, however, that an opinion can be rendered obsolete by new legislation or a landmark decision. Experts bear no responsibility for subsequent developments beyond a potential duty to notify the court of a such a development.

§ 4 Domestic private international law in the expert’s report

1. The court cannot engage an expert to opine on domestic private international law rules. See → Article 1, § 1. Therefore, while experts ought to feel certain about how those rules affect the case (→ Article 3, § 1, no. 4), they are normally not called upon to address them. Certain exceptions to this rule are mentioned below. Treatment of these domestic private international law rules should be brief, and controversial elements should be left up to the court.

2. If the applicable law depends on the other jurisdiction’s private international law rules (especially where “renvoi” would have to be taken into account, on which see → Article 2, § 1, no. 3), then a complete treatment of the question of what law applies will typically aid comprehension. The report should therefore begin with an account of the domestic private international law and demonstrate how the issue is thereby referred to the foreign private international law rules.

3. Explanations of domestic private international law can also advance the proceedings if the expert has reason to believe that the court and litigants may both be overlooking a key aspect of the case, for example a characterization problem or a hidden transitional rule (on characterization, see → Article 2, § 1, no. 2).

Examples:

• The court is obviously proceeding under the assumption that the availability of interest during legal proceedings (Prozesszinsen) is governed by the foreign tort law (the lex causae). The expert opines that the court could consider characterizing the issue as procedural and therefore subject to the German rule on Prozesszinsen (§ 291 of the ZPO).
  

• The expert points out that where the assessment of damages is complex, the court could consider whether certain aspects of the litigation may be deemed procedural and therefore subject to disposition under ZPO § 287.

4. Occasionally, the application of a rule of private international law requires an understanding of a particular rule or legal institution of the foreign substantive law. Since the latter is properly the expert’s domain, in this case he must also address German private international law. This is often an issue when questions of characterization arise.

Example: There is no way to determine whether an “institution contractuelle” in French law should be characterized as a contract of inheritance or as a donation inter vivos (with different conflicts rules applying) without first analysing the purpose and function of the French legal device.

§ 5 The expert’s role in particular kinds of cases

1. Interpretation of legal transactions. If evidence is ordered to determine the substance of a legal transaction (for instance a contract or a will) under foreign law, the expert only states the applicable rules and principles in the abstract, because it is up to the court to determine how those rules apply to the particular contract (→ Article 3, § 3, no. 5). However, the expert should identify and include in his report any related case law from the foreign jurisdiction. Investigating and assessing any relevant subjective elements in relation to the declarants is a question of fact for the court.

2. Contributory negligence. If the order concerns an issue of contributory negligence on the part of the plaintiff in a tort case, the expert will set forth the applicable rules and principles in the abstract and leave it for the court to apply them to the operative facts. This is especially so when it comes to determining specific fault ratios. However, the expert should identify and include in his report any related case law.

3. Recovery for pain and suffering. The principle set out in the previous item also applies where the order seeks the rules governing plaintiff’s recovery for pain and suffering or other non-economic damages.

4. Judicial discretion. If the foreign law places the determination of the claim at the discretion of the tribunal, the expert will explain the standards or principles that guide how a tribunal of the pertinent jurisdiction exercises its discretion. Here, too, the expert will identify and include in his report any pertinent case law.

5. Where the expert applies the law to the operative facts. In these and other similar cases, the expert may also opine as to how the rules apply to the facts of the present case, as long as the report also clarifies that any such assessment is without prejudice to the court’s ultimate decision (→ Article 3, § 3, no. 5).

6. Challenges and defences. For the sake of impartiality, experts should not explore the devices by which litigants can prosecute, challenge or defend against the substantive claims in a lawsuit unless the court has sought evidence in regard to them. However, if it is only for lack of familiarity with the foreign law that the court has not ordered proof of such devices, the expert will point them out to the court (→ Article 3, § 1, no. 6).

Examples:

• If the order is expressly limited to discovering the claims that arise from breach of contract (rather than being open-ended in terms of the grounds upon which recovery can be sought; → Article 2, § 6, no. 3), then the expert will not opine on extracontractual claims, though they may be warranted. But if the foreign law is such that certain categories of damages are recoverable on different grounds than in German law – for example, that certain losses are recoverable in torts rather than in contracts – then the expert will suggest expanding the order.
  

• If the expert realizes that one of the litigant’s claims is subject to a defence under the foreign law (e.g., that it is prescribed), the expert’s opinion will concern the defence only to the extent the court’s questions embrace it. However, if the court seems not to have asked about the defence because it is unknown in German law, the expert will point it out. In this context, it needs to be taken into account that the subtle distinction between defences that litigants must raise in pleadings and procedural hurdles that the court must raise on its own motion might not exist at all or in the same form in the foreign jurisdiction.
  

• Adjudicating a claim to the distribution of proceeds from the sale of property, the court seeks an opinion as to whether the applicable foreign law regards the sale as valid if the person who executed it lacked the requisite authority. Here, the expert will not take it upon himself to point out that the foreign law allows the property owner to ratify the sale (thus opening the door to a claim for distribution of the proceeds), because German law is analogous in this regard.

7. Public policy (ordre public). Whether applying the foreign law will produce an outcome contrary to German public policy is a question of German law and thus for the court to decide. The expert only opines on public policy to the extent that the determination turns on specifics of the foreign law (like when the purpose of the substantive rule becomes an issue). The expert may likewise opine on ways in which the applicable foreign law might be interpreted in accord with German law, or on ways in which gaps that result from a partial non-application may be filled.

§ 6 Late submission of reports and excess costs

1. If and when the expert realizes that he will miss a deadline, he should notify the court at once and provide a revised completion date.

2. If and when the expert realizes that the costs of his investigation will significantly exceed an earlier advance, he should notify the court without delay (see also → Article 3, § 1, no. 3). Otherwise, he will only be entitled to a fee in the amount of the advance.

Statutory authority: JVEG § 8a, para. 4.

Note: Both the legislator and the courts have taken the view that excess costs are significant starting at 20–25 % higher than what was originally contemplated (see BT-Drs. 17/11471 (new), 260; OLG Brandenburg, Beschluss of 25 October 2022 – 12 W 32/22, BeckRS 2022, 32993; LG Dortmund, Beschluss of 20 May 2021 – 9 T 112/21, BeckRS 2021, 14054).