Preliminary Remarks
The court’s task of applying the law to the given facts (da mihi factum, dabo tibi ius) also extends, should it become relevant, to foreign law. But the court cannot apply foreign law until the content of that law has been established. The court has a variety of resources at its disposal by which to do so, including by obtaining the formal opinion of an expert in the law of the relevant foreign jurisdiction. The ascertainment and application of foreign law raises several legal and practical issues that neither statutory nor case law can completely resolve.
These “Hamburg Guidelines” were drafted at the Max Planck Institute for Comparative and International Private Law in Hamburg and discussed with external legal scholars and practitioners at a conference, held at the Institute, from 16–17 June 2023. The guidelines were finalized following those discussions. They are intended as an aid to all participants in the legal process, but are directed especially at courts, experts, litigants and their legal counsel, to facilitate the efficient, transparent and legally sound handling of issues of foreign law. They are grounded in the practical experience of all participants, in particular the courts and the institutions that regularly provide expert opinions. They also reflect the statutory requirements and restate rules laid down in earlier cases, especially in the jurisprudence of the German Federal Court of Justice (the BGH). However, the issues in those cases are often so specific that the BGH itself may not wish to see their principles generalized. Instead, the Hamburg Guidelines are oriented toward the most common kinds of cases. Therefore – and also because of the immense variety in practice – the guidelines do not claim to offer the right solution to every constellation. In any case, they are not binding.
Article 1 (Foundations) contains relevant information for all participants in the legal process. The subsequent Articles cover the different roles of courts, experts, and parties. A comprehensive reading should therefore produce a complete understanding of the process of ascertaining and applying foreign law. Throughout, the term “litigant” or “party” will also refer to parties to non-contentious proceedings, especially under the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (the FamFG).
From time to time, illustrative examples and supplementary notes are provided to make the guidelines more informative and easier to use. Where useful, certain principles of statutory and case law are also indicated to aid comprehension.
The Hamburg Guidelines were drawn with civil litigation in mind. But in principle, they apply to other kinds of cases in which a German court or government agency (e.g., the tax or criminal courts; offices of the asylum or public revenue services; personal status registrars) may be called upon to ascertain and apply foreign law.
The Hamburg Guidelines do not address the international jurisdiction of German courts, which the courts can and must address themselves based on domestic law, such as the Brussels Ia and Brussels IIb regulations, or §§ 97 et seq. of the FamFG.
For consistency with §§ 402 et seq. of the German Code of Civil Procedure (the ZPO), the Hamburg Guidelines use the pronouns he, his, him etc. to refer to experts in the singular.
The Hamburg Guidelines are translated from the German original by John A. Foulks, Esq.