Interference norm
Mandatory rules , even French loi de police or English overriding mandatory provision is a term from the international private law . It refers to the provisions of a state that are to be applied, even if a different law is actually applicable to the case to be decided by the court. As a rule, these are the rules of the state in which the court has its seat.
The prerequisites are exemplarily shown in Art. 9 Para. 1 Rome I Regulation. According to this, not every mandatory national law in the judicial state is also a norm of intervention in cases with foreign relevance, but only those regulations which the state considers so elementary for its public interests, in particular its political, economic or social organization, that it would like to enforce their application if one's own law were in principle not applicable under its own PIL. In Germany, the following conditions are inferred from this:
- the wording or objective of the standard must have international validity
- the case must have sufficient domestic relevance
- the aim of the standard must go beyond pure individual protection
Examples of norms of intervention in German law are individual regulations from foreign trade law, competition law, consumer protection and employee protection. The general clauses § 138 and § 242 BGB should not be included, as they are primarily individual-protective. However, they can be applied via the public policy reservation under Art. 21 Rome I Regulation.
It is controversial whether foreign intervention standards can also be applied. According to Art. 9 Para. 3 Rome I Regulation, courts can at least apply the rules of intervention of the state in which the contract in dispute was actually performed or should be performed. According to the prevailing opinion, the regulation is final, so that no further intervention standards come into question within the scope of the Rome I Regulation.
Individual evidence
- ↑ Palandt- Thorn , 70th edition 2011, Art. 9 Rome I-VO, Rn. 5; see also BGH, judgment of December 13, 2005 - XI ZR 82/05, NJW 2006, 762 on the earlier § 34 EGBGB
- ↑ according to Rauscher, Internationales Privatrecht, 4th ed. 2012 Rn. 1272, however, an overriding norm can be applied "extremely exceptionally" even without a domestic reference.
- ↑ Palandt- Thorn , 70th edition 2011, Art. 9 Rome I-VO, Rn. 6–10, each with evidence of opposing votes
- ↑ Martiny in Munich Commentary on the BGB , 5th edition 2010, Art. 9 Rome I-VO Rn. 60; Rauscher, Internationales Privatrecht, 4th ed. 2012 Rn. 1271; a. A. partly the case law of the first instance
- ↑ Rauscher, Internationales Privatrecht, 4th ed. 2012 Rn. 1271
- ↑ Ferrari, Internationales contract law , 2nd edition 2011, Art. 9 Rome I-VO Rn. 42, 43 with further references also on votes against
