Total reference

Overall referral , also known as IPR referral or conditional referral , is a type of conflict of law referral in legal cases with a foreign reference in referral norms . The legal consequence of the overall referral is the application of a foreign substantive law in Germany, the lex causae , to the facts containing the legal question , on condition that the foreign IPR “accepts” the referral. The counterpart is the standard reference .

The overall referral is the rule in the autonomous German international private law ( Art. 4 Paragraph 1 Sentence 1 EGBGB ). Also see § 5 IPR law in Austria the doctrine of comprehensive reference. The Swiss IPR law only provides for a total referral in exceptional cases. The principle is the reference to the substantive standard Art. 14 . Article 16 of the Belgian PIL law is also based on the principle of reference to the relevant norms ("à l´exclusion des règles de droit international privé").

General reference and reference to material standards

• A general reference refers to the law of another state including its national conflict of laws. The overall standard reference is therefore also referred to as "IPR reference" or conditional reference. If the foreign PIL refers to a third legal system, this legal system is to be applied. Whether this second reference also represents an overall standard reference is not to be judged from the point of view of domestic PIL, but from the point of view of the legal system which issued the (“next -”) reference.
• A standard reference or unconditional reference directly refers to the standard of another legal system, excluding foreign conflict of laws.

A standard reference is only given if the law expressly provides for it (see Art. 20 Rome I Regulation and Art. 24 Rome II Regulation) or an overall standard reference would contradict the meaning of the reference. This can occur in particular if, in the case of alternative links that serve the principle of favorability , several optional links such as B. Art. 19 I EGBGB are possible. Art. 19 I EGBGB is intended to facilitate the determination of parentage through several alternative points of contact, whereby the law which is more favorable for the child is called upon to apply. An overall referral with its open possibilities for referral back and forward would be out of place here and would again restrict the range of possible legal systems from which the principle of favorability could draw.

A referral is essential if the foreign material law is to be applied on the basis of a choice of law by the person concerned ( Art. 4 Para. 2 EGBGB).

Restrictions on the overall referral are made through intergovernmental agreements in international treaties, through public policy .

Referral back and forward

If, on the basis of an overall referral, reference is made to the IPR of the foreign state, its referral and referral will also be taken into account from the point of view of the forum state . The foreign legal system ( lex causae ) accepts the reference of the domestic law if it qualifies the reference terms in the same way as the domestic law and also uses the same references. Otherwise there will be a referral back (renvoi au premier degré) or a referral back (renvoi au second degré).

It is not a problem if the foreign law accepts the reference of the domestic law or issues a further reference to the relevant standard. If, on the other hand, foreign law orders a conditional referral back or further referral to a legal system, which in turn refers back or refers to domestic law (district referral), the problem arises as to which legal system should now be applicable. To solve this problem, the chain of references must be broken. There are three approaches:

1. the legal system that is referred to twice for the first time applies; In the case of an immediate referral back to the home law or a referral from a third legal system to the home law, the home law always applies (striving home)
2. The point of view of the legal system of the state to which one's own PIL refers is decisive;
3. the decision as to where the chain of referrals is broken is up to the foreign law (double renvoi)

In the event of an immediate reference back or a reference to the German legal system by a third country, German law has decided to strive home ( Art. 4 Paragraph 1 Sentence 2 EGBGB). The case of a reference back to a foreign legal system remains open. Austria also orders the homeward striving theory, but also generalizes it for the case of a reference back to a foreign legal system ( Section 5 (2) of the Austrian IPR Act). Switzerland only wants to consider the referral back in the case of personal or family status matters ( Art. 14, Paragraph 2 of the Swiss IPR Act).

Protection of international consistency of decisions

The reason for an overall referral is to preserve the international consistency of decisions. It would make little sense to apply a foreign legal system by domestic authorities if the courts of this foreign state themselves use a different legal system for the decision.

Through the technique of total referral it is recognized from the perspective of the court before whether the foreign legal system wants to be applied to the legal issue arising from the facts. If it does not want it, ie if it refers in its conflict of law rules to another foreign legal system or back to the law of the forum state, this decision is accepted from the point of view of the forum state's legal system.

exam

When examining which substantive law is now applicable to the legal case in the case of an overall referral , you can proceed as follows:

• Determination and application of the relevant foreign IPR norms to the facts: interpretation according to the view of the foreign legal system; (As a rule, the lex fori of the foreign state applies at this point when qualifying the legal question of the facts)
• Checking the reference of the relevant foreign IPR standards:
  • Result 1: Referral to a third right:
    • as an overall referral ⇒ Legal consequence: IPR of the third state to be observed and, if necessary, further referrals and referrals to be checked
    • as reference to substantive norms ⇒ legal consequence: substantive law of the third state applicable, lex causae (substantive norms) of the third state applicable in the forum state
  • Result 2: Referral back to the law of the forum state in which the examination of the legal question began ⇒ Legal consequence: lex causae (factual norms) of the forum state applicable in the forum state (referral chain is interrupted in accordance with Art. 4 I Clause 2 EGBGB, so-called "homeward striving" in Case of the "Renvoi")
  • Result 3: Acceptance of the referral of the conflict of law rule from the forum state ⇒ Legal consequence: lex causae (material norms) of the foreign state, to whose legal system the reference was made, applicable in the forum state

Legal history

One of the first decisions on total referral is the judgment of the Higher Appeal Court of the Four Free Cities of March 21, 1861. One of the first codifications can be found in the Zurich Law Book 1854/87.

Individual evidence

1. ↑ an exception is e.g. B. the general reference § 110 para. 2 Belgian IPR law
2. ↑ Collection of the decisions of the Higher Appeal Court of the four Free Cities in Lübeck in Frankfurter Rechtssachen Vol. 6 (1866), No. 248 ; Seufferts Archiv Vol. 14 (1861), No. 107 (the legislation existing at the place of residence of the testator "in its totality")
3. ^ Michael Sonnentag: The Renvoi in international private law . Mohr Siebeck, Tübingen 2001, ISBN 3-16-147664-6 , p. 26

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