The Reform of Private International Law in the Federal Republic of Germany

Abstract

UNTIL now the legal system of West Germany has regulated its private international law on the basis of a small number of statutory provisions and a great deal of case law. Since the founding of the Republic in 1949, many efforts have been made to reduce the subject to a compact written code, but all to no avail. In the past few years, however, the country has seen its German-speaking neighbours make considerable progress on this front 1 and at long last it too seems to be on the point of enacting a reforming statute. The purpose of this article is to explain how the new statute will affect both the form and the substance of the pre-existing law. I. THE BACKGROUND TO THE REFORM DISSATISFACTION with the present law has arisen for a number of reasons. First and foremost, it is in an extremely untidy state. When the German Civil Code was being drafted in the 1880s and 1890s, most lawyers involved in the project wanted to include some paragraphs devoted to private international law. 2 These would not have contained provisions on when German courts were to take jurisdiction in international cases, or on when they were to recognise foreign judgments, but they would have set out choice-of-law rules. Unfortunately the civil servants in the Foreign Office of the Second Empire would not agree to this proposal. They viewed the conflict of laws as a branch of general international law and wanted to develop it on the basis of interstate treaties. The eventually accepted compromise was to enact, not in the Civil Code itself but in the statute "introducing" the Code, a set of provisions indicating when the Civil Code was to apply in cases involving non-German * Lecturer in Law, The Queen's University of Belfast. I wish to thank the German Academic Exchange Service for enabling me to carry out the research for this article while participating in its Younger Lawyers'

The principle of proximity corrective function

“…У светлу билатералног колизионог метода принцип најближе везе има централну улогу. "Коперникански заокрет" 40 у решавању сукоба закона начинио је Савињи (Savigny) постављајући принцип најближе везе у средиште билатералног метода.…”