Article 4: Guidelines for Litigants

1. Since it is for the court to conduct the investigation into the applicable foreign law (see → Article 2, § 2, no. 1), litigants are in principle not obligated to contribute to the investigation beyond their general duty to advance the proceedings. But if litigants do possess specialized knowledge of the foreign law, or if it is obvious that the investigation would be significantly easier for them than for the court, it is recommended that litigants do in fact aid in the investigation. In particular, litigants may furnish the court with any (not merely cherry-picked) sources or legal authorities at their disposal. Litigants who fail to provide such assistance run the risk of forfeiting the right to appeal on grounds that the trial court erred by not conducting a more extensive investigation.

Case law: BGH, Urteil of 30 March 1976 – VI ZR 143/74, IPRspr 1976-2 (= NJW 1976, 1581(1582)); BGH, Urteil of 30 April 1992 – IX ZR 233/90, BGHZ 118, 151 (= IPRspr 1992-265 = NJW 1992, 2026 (2029)).

2. Litigants may base their submissions on the opinion of a privately engaged expert. The court will assign such an opinion the same weight as any other party submission in evidence; in particular, no presumption of objectivity will attach to it (see → Article 2, § 2, no. 5). If it looks like the court will eventually seek an expert opinion anyway, it may be advisable to skip the private expert and suggest that the court should initiate the procedure.

3. If it looks like the investigation will be disproportionately expensive or time-consuming, litigants may consider stipulating that the case should be governed by German law, provided that the applicable private international law rules permit that choice.

4. Litigants should assist the court as much as possible in crafting the Beweisbeschluss (the order for evidence to be taken). The aim is to avoid having the expert opinion turn out to be incomplete or unusable.

5. Litigants are permitted in principle to ask for amplification of any portion of the report. However, their objections must have a reasonable basis and cannot be merely speculative (see also → Article 2, § 8, no. 2). Since the expert opinion will presumably be grounded in an evaluation of the relevant primary and secondary authorities (see → Article 3, §§ 2, 3), it may be advisable to obtain a private expert’s opinion to substantiate any objections.

6. Litigants may propose that an expert report obtained for use in a different proceeding be entered in the present proceeding (see → Article 2, § 3, no. 2).

7. Under no circumstances should the parties directly contact or communicate with a court-appointed expert.