The English position on proof of foreign law has been described in Rule 18 of Dicey and Morris1 which breaks down into the following principles.
(1) Foreign law is a fact, so that (i) foreign law must be pleaded and (ii) proved unless e.g. it is admitted, (2) to the satisfaction of the judge; (3) in general, foreign law must be proved by (i) expert evidence (usually by foreign practitioners), while (ii) the court will not conduct its own rersearch; (4) the burden of proof lies on the party who bases his claim or defence on it; if this party fails, the court will apply English law.
None of the above is true in Germany.
- Foreign law is treated as law.
- German courts must apply foreign law once German private international law points to a foreign law, regardless of what the parties plead.
- German courts must establish foreign law ex officio.
- In doing so, courts are not bound by any submissions of the parties.
- Courts will frequently conduct their own research.
- In taking evidence, courts are not limited to experts; anything can be used as evidence of foreign law.
- Courts appoint experts on foreign law and tend to favour German academics over foreign practitioners.
- No presumption operates as to the content of foreign law.
- Courts must apply foreign law even if its position cannot be established with certainty.
Both English and German rules are subject to some exceptions, which make them more workable and also somewhat more reconcilable with each other. Before discussing the details, however, some general remarks about the German law on establishing foreign law might be appropriate.
The establishment of foreign law in German civil proceedings is governed by § 293 Zivilprozeßordnung (Code of Civil Procedure, ZPO), which was enacted in 1877. This provision reads as follows:
|§ 293 Zivilprozeßordnung||§ 293 Code of Civil Procedure|
|Das in einem anderen Staate geltende Recht, die Gewohnheitsrechte und Statuten bedürfen des Beweises nur insofern, als sie dem Gericht unbekannt sind. Bei Ermittlung dieser Rechtsnormen ist das Gericht auf die von den Parteien beigebrachten Nachweise nicht beschränkt; es ist befugt, auch andere Erkenntnisquellen zu benutzen und zum Zwecke einer solchen Benutzung das Erforderliche anzuordnen.||The law which is in force in another state, customary law and by-laws require proof only to such extent as they are unknown to the court. In the establishment of these legal norms, the court is not limited to the evidence brought forward by the parties; it is empowered to make use of other sources of knowledge and to order whatever is necessary for the purpose of such utilization.|
Germany, which shares borders with nine other countries, has a fairly internationally minded Private International Law, which for a number of reasons leads more frequently to the application of foreign law than the English law of conflicts. For family and inheritance law in particular, citizenship (and not domicile) is used as the main criterion for finding the applicable law, while jurisdiction is generally based on residence.2 As the number of foreigners residing in Germany (some 6.9 million) roughly equals the total population of Switzerland, 3 this implies that the number of German court proceedings involving foreign family or succession law is likely to be in the region of the total number of all court proceedings in Switzerland which involve family or inheritance law. At the same time, Germany’s position in world trade entails substantial international commercial litigation in Germany, often involving cases to which foreign law applies.
1. Foreign Law Treated as Law
The fact that foreign law is regarded as law can be taken from the wording of § 293 ZPO, which treats foreign law on the same footing as German customary law and certain ancient German by-laws, which, we must assume, were not easy to ascertain in 1877. This also accounts for two other rules which have been mentioned above, i.e. that whether foreign law applies to a given case is no more in the discretion of the parties than whether German law applies, and that parties cannot bind the court by agreeing on the position of a foreign law.
If German private international law points to a foreign law, the court must disclose this to the parties under § 139 ZPO if they were previously unaware of this fact. However, if both parties plead under German law, courts will regularly construe this as a choice of German law by the parties, even if they were seemingly unaware of the possibility that foreign law might apply to their case, 4 a position which has received much criticism by German scholars. 5 However, such agreements are valid only to the extent that German private international law allows parties to choose the applicable law, which is mainly the case in contracts and torts. This excludes in particular most questions relating to company, property, family and inheritance law.6
The main difference in the treatment of German and foreign law is therefore that courts are required to know German law (iura novit curia), including German private international law, but are not required to have knowledge of foreign law, which therefore can be established by hearing evidence.
2. Establishment by the Courts
While § 293 ZPO mentions “evidence brought forward by the parties”, this provision has nevertheless traditionally been understood to oblige the courts to take of their own motion all reasonable steps to establish foreign law.7
As can be taken from § 293 ZPO, no evidence needs to be heard if the court knows the foreign law. This rule is not entirely unknown in English law, where foreign law may sometimes be judicially noticed as a notorious fact, e.g. that roulette is not unlawful in Monte Carlo.8 However, German courts are authorized and sometimes expected to conduct their own research into foreign law. They can often rely on literature on foreign laws in German language. For example, extensive and rather up to date documentation on foreign family and inheritance laws is available and commonly used by practitioners and courts alike,9 so that usually experts will be appointed only in complicated family or succession law cases.
If both parties agree on foreign law to take a certain position, courts may take this into account when establishing foreign law. This will reduce the court’s duty to establish the foreign law as it is, but will not relieve the court entirely from this duty. Most certainly, foreign law cannot be “admitted”. In the end, parties can therefore bind the court in its reading of foreign law no more than in its interpretation of German law.
§ 293 ZPO makes it clear that parties are free to bring forward their own evidence. This includes expert opinions on foreign law. However, a party which calls on its own expert risks to go home with the costs for this expert even if this party eventually wins the case, while the costs for a court appointed expert follow the event.
3. Methods of Proof
As regards establishing foreign law, courts are free in their choice of evidence under § 293 ZPO. Evidence can therefore include information obtained from a foreign embassy, textbooks, court decisions or expert opinions from other proceedings, which are regularly collected and published in Germany.10 However, as all these methods seem appropriate under English law provided that parties agree on them, there is less of a difference between the two legal systems than appears on first sight.
In more serious or complicated cases, German courts will appoint an expert. The court is free to choose the person of the expert and is bound only by an agreement of both parties to this effect, § 404 (4) ZPO.
Most commonly, the court will choose a German professor of comparative law, or one of the Max-Planck-Institutes. This appears unusual from the English perspective where preference is given to foreign practitioners. The difference has certainly something to do with the fact that English law has been developed by practitioners, while German law has traditionally been heavily influenced by academics. It should also be mentioned that Germany has a strong tradition in Comparative Law. There are some fifty chairs for comparative law in Germany and several Max-Planck-Institutes.11 For example, the University of Freiburg has four chairs in comparative civil law (including civil procedure), and a total of some fifteen academic staff, while the Max-Planck-Institute on foreign civil and private international law in Hamburg relies on an academic staff of some forty to fifty researchers12 and the best comparative law library I know of.
In spite of the strong German reliance on academic experience, the Bundesgerichtshof (Federal Court of Justice) ruled in 1991 that, if the academic expert is unable to establish the foreign law as practised by the courts in this country, the German court is under the duty to appoint a foreign expert.13 This sounds very plausible and reasonable. Ironically, in this case the lower courts had examined a total of seven expert opinions on a specific area of the Venezuelan law of maritime liens provided by the parties, and one expert opinion which the court of second instance had obtained from the Hamburg Max-Planck-Institute, and it was the Max-Planck-Institute which had found the only relevant Venezuelan court decision in this area, a fact which the Bundesgerichtshof had evidently overlooked.14
If the expert is resident in Germany, the court will send the entire file to the expert, together with a formal decision which lists the questions which the expert is required to answer. Under German law, court files must not be sent abroad. The expert is usually given a time limit for answering the questions in writing (extensions are not infrequently granted). The court and either party can require the expert to attend the hearing and explain the opinion.15 It is difficult for the expert to refuse the court’s request, unless this person has little expertise in the area in question. Remuneration of the expert is governed by an Act; generally, experts can claim DM 40 to DM 70 per hour and up to 50% more in difficult cases.16
Generally, courts are free to rely on the European Convention on Information on Foreign Law. Figures for 1975-1986 indicate that this Convention is used more in Germany than in most other member states; a total of 281 German request to other member states compares to a total of 93 requests made to Germany by other member states.17 Nevertheless, the less than twenty-five German requests per year are clearly outnumbered by hundreds of expert opinions per annum.
4. Content and Application of Foreign Law
There is some common ground between the German and English position after all: foreign law must generally be applied the same way as it is applied by the courts in the country in question. It is therefore generally not sufficient to rely on textbooks and statutes. This has already been mentioned above in the context of the Venezuelan maritime lien case. This also implies that German courts are required to review legislation to the same extent as the courts in this country. If the question under consideration has not been decided by foreign courts, German and apparently also English courts are authorized to develop the law as the foreign court presumably would.18 However, German courts will do this only in cases of necessity. The general rule has been aptly described by Goldschmidt: courts are architects in the application of their own law, and photographers in the application of foreign law.19
Under German law, no presumption operates about the content of foreign law.20 From a German perspective, the traditional English rule that in absence of evidence to the contrary, foreign law is presumed to be the same as English 21 appears to be the most daring and least accurate of all legal presumptions, and it is reassuring to see that this rule no longer enjoys unanimous support.22
Only if there is no way of establishing the position of foreign law are German courts relieved from applying this law.23 Generally, this is only accepted for remote corners of the world or if the legal situation on the ground cannot be established, e.g. after revolutionary changes in the country in question.24 If there is another foreign legal system which is accessible and related to the inaccessible law, preference can be given to the former, 25 e.g. to English law in cases where the legal situation cannot be established as regards a former British colony. Otherwise, courts will apply German law. An action must not be dismissed on the ground that foreign law could not be proved.26 However, the main difference in this area seems to be that English courts are more likely to assume a position of non liquet than German courts.
On second look, it seems that there are three main differences between English and German law in this area, namely a) whether the application and content of foreign law are at the disposition of the parties, b) whether the parties or the court must investigate foreign law, and c) which types of experts are employed.
a) The English system which allows parties to decide whether or not foreign law should apply to their case is based on the frequent equation of jurisdiction and applicable law, in particular in family law matters. Foreigners who live in England will therefore either obtain no divorce in this country or a divorce under English law,27 which often will not be recognized in their country of origin and can lead to endless trouble in subsequent maintenance, matrimonial property, custody, bigamy, pension and inheritance disputes, and which would be hard for Germany to impose on its nearly 7 Million foreign residents. If English courts applied foreign divorce law, I doubt whether the voluntary nature of pleading foreign law could be sustained.
b) The fact that courts are under the duty to establish foreign law is similarly related to the goal of international legal harmony, i.e. that German judgments involving foreign law should generally be recognizeable and enforceable abroad, which also explains why parties cannot bind the court in their reading of foreign law. This is also related to the general German approach that the finding of law is the court’s duty, and that parties are not required to plead the law. As regards a) and b), it is perhaps fair to say that the English approach keeps English proceedings simple, while the German approach keeps international recognition simple and reduces subsequent liti-gation. Similarly, the English approach will often suit better the parties, while the German approach takes more into account third party interests which are often at stake in international litigation. This also explains why German courts allow choice of law (and thus “volunatary pleading”) in contracts and torts, but generally not in family, inheritance, property and company law.
c) Whether foreign practitioners or local academics are better suited as experts on foreign law is difficult to say and depends on the legal environment and the individual circumstances of the case. Undeniably, foreign practitioner experts will usually have the better knowledge of foreign law, and that is the best reason for employing them. But transfer is more difficult, as foreign law needs to be woven carefully into a domestic procedural and often also substantive law pattern,28 a task which a domestic comparatist might be better suited for than a foreign practitioner. Language tends to be more of a problem with foreign practitioners; while they have no language problem in finding the position of foreign law, there is more of a barrier in communicating the findings to the court and to the parties. Also, unlike in Britain, in many other countries practitioners have little experience in explaining the law to a court. The German preference for academics and the English preference for practitioners are perhaps based on the same erroneous assumption, i.e. that foreign laws are similar to the law of the forum.
* This article was presented on 30 June 1994 during the first of a series of Joint Workshops on Comparative Litigation Practice organised by The British Institute of International and Comparative Law and The British-German Jurists Association.
- Dicey & Morris, The Conflict of Laws, 12th ed. by Lawrence Collins with specialist editors, 1993, pp. 226ss.
- See Art. 7-26 Einführungsgesetz zum Bürgerlichen Gesetzbuch (EGBGB) and §§ 12ss ZPO.
- The number of foreigners with residence in Germany was 6,878,000 on 31 December 1993, according to Press Release 47/94 of the Embassy of the Federal Republic of Germany in London. Switzerland had a total population of 6,904,600 on 31 December 1992, according to Fischer Weltalmanach 1994 col. 601.
- See e.g. BGH 18.1.1988, NJW 1988, 1592.
- See e.g. von Bar, Internationales Privatrecht, Vol II (1991) p. 341.
- This rule enjoys general support, but was recently overlooked by the Bundesgerichtshof in BGH 27.11.1992, IPRax 1993, p. 97; see Jayme, Schlüsselgewalt des Ehegatten und Internationales Privatrecht, IPRax 1993, pp. 80-81.
- RG 23.3.1897, RGZ 39, 371, 376; von Bar, Internationales Privatrecht, Vol. I (1987) p. 325.
- Saxby v. Fulton  2 K.B. 208, 211 (C.A.); see Dicey & Morris (supra n. 1) p. 227.
- In particular, Bergmann/Ferid, Internationales Ehe- und Kindschaftsrecht and Ferid/Firsching, Internationales Erbrecht.
- Gutachten zum internationalen und ausländischen Privatrecht, ed. by M. Ferid, G. Kegel and K. Zweigert (annual collection).
- As regards civil litigation, this includes the Max-Planck-Institutes in Hamburg (foreign private and private inter-national law) and in Munich (foreign and international patent, copyright and competition law). Other areas of foreign and international law are covered by four other Max-Planck-Institutes (public law, Heidelberg; criminal law, Freiburg; social insurance law, Munich; legal history, Frankfurt).
- Including part-time staff.
- BGH 21.1.1991, NJW 1991, 1418, 1419.
- Samtleben, Der unfähige Gutachter und die ausländische Rechtspraxis, NJW 1992, 3057-3062, at 3058.
- § 411 ZPO; see Thomas/Putzo, Zivilprozeßordnung, 17th ed. 1991 § 411 No. 3.
- § 3 Gesetz über die Entschädigung von Zeugen und Sachverständigen (ZSEG).
- Bülow-Böckstiegel, Internationaler Rechtsverkehr in Zivil- und Handelssachen, pp. 380 • 5 and 380 • 7.
- For English law, see Fentiman, Foreign Law in English Courts, 108 L.Q.R. (1992), pp. 142-156, 149. In RG 12.2.1906, RGZ 62, 379, 383s., the German Reichsgericht went as far as deviating from the Swiss Bundesgericht in the application of Swiss law.
- Quoted from Kegel, Internationales Privatrecht, 6th ed. 1987 p. 319.
- BGH 23.12.1981, NJW 1982, 1215.
- Dynamit AG v. Rio Tinto Co.  A.C. 260, 295 (H.L.). The case concerned German law.
- Fentiman (supra n. 18 ) p. 147s. states that the true content of the rule is that English law applies unless foreign law is proven. This position has meanwhile been supported by Dicey & Morris (supra n. 1) p. 238.
- Cf. BGH 23.12.1981, NJW 1982, 1215.
- However, in BGH 23.12.1981, NJW 1982, 1215, the Bundesgerichtshof accepted the findings of the appeal court that it was unable to establish whether the legitimacy of a child could be challenged by the child itself in a Turk-ish court. Unfortunately, the reasons for this part of the judgment are not reproduced in the report.
- So-called Ersatzrecht. See von Bar (supra n. 7 ) p. 329.
- BGH 23.12.1981, NJW 1982, 1215, 1216.
- See Dicey and Morris (supra n. 1) Rule 79.
- See Fentiman (supra n. 18 ) p. 151: “To obtain the best from an expert’s oral testimony in the present context, in-deed, requires not simply some familiarity with the legal system in question but also with the techniques of com-parative law. This demands much of even the best advocate.”
© 1994 Gerhard Dannemann