Article 1: Foundations

§ 1 Distinguishing the roles of the court, experts, and litigants

1. Whether the law to be applied is German law or foreign law is determined by the rules of private international law, which can derive from European Union law, international treaties, and autonomous German law (see Article 3 of the EGBGB). These private international law (or conflict-of-laws) rules are a part of German law; so, finding, interpreting and applying them is a core responsibility of the court. The court cannot delegate this duty to an expert.

2. It is also the court’s basic responsibility to ascertain, interpret and apply applicable rules of foreign law. For this, the court may consult a variety of resources and authorities (see below → Article 2, § 3), which includes obtaining an expert opinion.

Statutory authority: ZPO § 293

3. Litigants may assist the court in its investigation of the foreign law. However, beyond their general duty to advance the proceedings, the parties are not generally required to assist the court in this way. Foreign legal norms are handled as matters of law, not as facts of the case, so the burdens of producing evidence and of persuasion do not apply to establishing the content of the applicable foreign law.

Case law: BGH, Beschluss of 24 August 2022 – XII ZB 268/19, BGHZ 234, 270 (= IPRspr 2022-1).

§ 2 General aims

The establishment and application of foreign law as part of the adjudication process should further the following interests:

• securing the constitutional guarantee of access to justice;

• rendering decisions consistent with private international law rules, and, where applicable, foreign law;

• avoiding unnecessary or disproportionate cost and delay for everyone involved in the process;

• ensuring that all participants in the adjudication keep to and fulfil their proper role; and

• facilitating transparent communication among all participants.