Choice of law
The choice of law for contracts with a foreign connection is the option of determining the law to be applied in whole or in part to the contract under several legal systems .
In the case of contracts or other matters with a foreign connection, the problem of the choice of law arises because the legal systems in states sometimes differ considerably from one another and it must be clarified which legal system should be applicable. The contracting parties must therefore be aware that there are different legal systems; With regard to the legal consequences, these must neither be misunderstood nor neglected. The effects of the different legal systems are the subject of international conflict of laws . If contracting parties consciously or unconsciously do not use the option of a choice of law, in case of doubt the legal system of the state with which a contract has the closest connections applies; this is usually the country where the seller is based .
Application of international law
In the case of contracts with a foreign element, it cannot be assumed that German law is applicable - as is the case with contracts with exclusively German parties . The uniform provisions of the Rome Convention (so-called Rome I-VO) apply to matters that are related to the law of different states ( international contact ). This Rome I Regulation replaced the provisions of Art. 27 et seq. EGBGB in December 2009 and regulates the law applicable to contractual obligations if the contracts are international. According to Art. 3 Rome I-VO, a contract is subject to the law chosen by the parties. If there is no clear choice of law, according to Art. 4 Para. 1 Rome I-VO, the law of the country in which the seller has his habitual residence applies to sales contracts for movable objects . There is no unreasonable disadvantage for the consumer . As a result, there is much to be said for the effectiveness of choice of law clauses in the terms and conditions . The user should bear in mind, however, that the chosen law will not always prevail against consumers.
Choice of law clause
In order to avoid possible disputes due to a missing or unclear choice of law, the contracting parties have the option of a choice of law clause. With a choice of law clause, the contracting parties can influence the legal consequences of their contract. As a clause , it specifies the legal system to which the contractual rights and obligations of the contracting parties are to be subjected. The applicable legal system not only decides whether a contract has been concluded with effective form at all , but also specifies the applicable regulations for the rights and obligations of both contracting parties. In particular, the applicable law determines whether the contracting parties have a leeway for their agreements. The coming into being and the effectiveness of a choice of law are also judged by the chosen legal system.
The effectiveness of a choice of law clause is determined according to the case law of the Federal Court of Justice according to the law chosen. The law to be applied according to the clause is decisive for the choice of law clause. If the application of German law is not chosen, the choice of law by the parties could lead to the data subject being deprived of the protection granted by mandatory provisions of German law. These provisions include all provisions that are not mandatory by party agreement and that are suitable and intended to provide protection to one contracting party against the other. However, according to Art. 6 Rome I Regulation, a choice of law by the parties in contracts for the delivery of movable objects or the provision of services for a purpose that cannot be attributed to the professional or commercial activity of the consumer may not result in the consumer the protection granted by the mandatory provisions of the law of the state in which he has his habitual residence is withdrawn.
A frequently used choice of law clause reads: “German law applies to the exclusion of the UN sales law, even if orders are placed from abroad.” From this it can first be concluded that the UN sales law forms part of German law and therefore applies when it is is not expressly excluded. According to a ruling by the Hamburg Regional Court , this choice of law clause in the General Terms and Conditions is also effective for consumers and is also not a violation of competition law. The Hamburg Regional Court was of the opinion that the conflict of law rules of the Rome I Regulation were not a matter of rules of market behavior; Rather, the conflict of laws unified by the EU regulation contains provisions of the applicable law in matters involving foreign countries. Such international or European law regulations of the conflict of laws do not pursue the purpose of regulating market behavior . Their sole purpose was to determine the scope of national legal systems. In addition, the choice of law clause does not violate general terms and conditions law, in particular neither § 305c (1) BGB nor § 305c (2) BGB. The clause is not surprising within the meaning of Section 305c (1) BGB, since the agreement of German law for sales contracts whose characteristic services are provided by an entrepreneur operating in Germany would, in case of doubt, correspond to the contractual statute that would apply in the absence of a choice of law ( Art. 4 para. 1 lit. a Rome I Regulation). In the absence of a choice of law, according to this provision, the applicable law in sales contracts is subject to the law of the state in which the seller has his habitual residence. Such an agreement is therefore initially of a purely declaratory nature. Nothing else applies to consumer contracts.
Restriction of the choice of law
By Art. 6 Rome I Regulation which basically given right choice is limited because it must not cause the consumer to protect his home rules is removed ( right escape ). Only if the special and not analogous prerequisites of Art. 6 Rome I Regulation are met is there a favorable comparison between the chosen and German law - in which the chosen law can also prevail. According to the LG Hamburg, this is no exception to the free choice of law, but merely the requirement of the additional application of mandatory protective provisions of the home law of the foreign consumer.
International private law
In international private law , the choice of law is often used in order to give the parties or those entitled to exercise the right to vote in a legal case with foreign affairs the option of choosing the most material legal system that is most favorable from the point of view of the parties or the person entitled to vote. The leeway afforded by the option often also serves to realize the private autonomy between the parties, in particular in Art. 14 Para. 2, Art. 42 EGBGB. The legal system determined by the choice of law is in German law according to Art. 4 Paragraph 2 EGBGB by definition only a standard reference , so that the material standards of the selected legal system apply to the exclusion of their international private law (IPR). Such references to substantive norms by exercising a choice of law open up, among other things, Art. 10 Paragraphs 2 and 3, Art. 14 Paragraph 2, Art. 15 Paragraph 2, Art. 25 Paragraph 2 and Art. 42 Paragraph 2 EGBGB as conflict of law rules of the IPR.
- ↑ Regulation 593/2008 / EC, ABl. L 177 of July 4, 2008 (PDF)
- ↑ BGH, judgment of October 26, 1993 ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , Az. XI ZR 42/93, full text = BGHZ 123, 380, 383.
- ↑ BGH, judgment of June 15, 1987 , Az. II ZR 124/86, full text.
- ^ LG Hamburg, judgment of January 6, 2011 , Az. 327 O 779/10, full text.
- ↑ The judgment of the LG Hamburg concerns an individual case, so that it remains open whether all cases of this kind are in conformity with competition. In addition, the decision only applies within the scope of the Hamburg Regional Court.