Standard reference

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Reference standard is a type of conflict-of-law reference in legal cases with a foreign reference in a reference standard . References to substantive norms directly determine the substantive norms of the relevant law to which reference is made that are applicable to a situation with international relevance.

In contrast to the general reference, there is no comprehensive reference to the law of another state, including its IPR law, but only to its substantive norms .

References to substantive norms refer to those substantive norms of a foreign legal system , excluding the foreign conflict of laws , which are to be applied to the facts after the relevant lex causae have been established. They are only available if the law expressly provides for it or if an overall standard reference would contradict the meaning of the reference (cf. Art. 4 I sentence 1, 2nd half-sentence EGBGB for German conditions). An example of an expressly legally mandated reference is Art. 4 I S. 2 EGBGB: If the foreign conflict of laws declares German law to be applicable, a referral back (so-called "Renvoi") to German law occurs. However, German IPR is not to be applied again, but directly German substantive law, whereby a constant referral back between the states in the sense of a ping-pong effect and thus an endless back and forth of referrals in favor of the application of the law of the forum state is excluded (so-called "homeward striving"). ). Section 5 (2) IPRG provides the same for Austrian law.

Purpose of the reference standards

The purpose of the standard reference is to exclude referrals and referrals from the outset and to reliably determine the law applicable to a situation that affects foreign countries. The international consensus of decisions in (international) conflict of laws takes a back seat to the consideration of applying the law that is objectively most closely related to the legal question and finally fixing the lex causae to be applied from the point of view of the forum state for the decision of the legal case.

References to substantive standards in Germany

In accordance with this purpose, for example, the following areas of regulation in German IPR are provided with references to specific standards:

  • Art. 3a I EGBGB makes it clear that references to specific norms to a foreign legal system exclude the application of foreign IPR law. In particular, it concerns the following articles of the German IPR: Art. 11 , Art. 12 and Art. 17b I sentence 1. Here the German legislature wants to leave it at the application of the foreign material norms and a reference back or further to one's own or that Prevent the law of a third state.
  • The referral based on a choice of law permitted by law should, in accordance with the purpose of self-determination, exclude the application of IPR law, Art. 4 II EGBGB. Only in this way can the intended validity of the privately autonomously determined right, the lex causae determined for use by the person entitled, be reliably realized.
  • The so-called "Renvoi" (referral back) according to Art. 4 I S. 2 EGBGB: see above. The Forgo decision of the French Cour de Cassation in 1882 is fundamental to the problem of "Renvoi" and the development of the normative principle for referral cases .
  • Insofar as German IPR declares German law to be applicable (e.g. in Art. 9 Clause 2, Art. 13 II, III Clause 1, Art. 24 I Clause 2 EGBGB), this always refers to the application without any further conflict of laws check German material regulations.
  • Finally, the most important restriction of the basic principle of the overall referral results from Art. 4 I sentence 1 EGBGB, if the overall referral "... contradicts the meaning of the referral." This case 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.
  • References in international treaties are also references to substantive norms, because it is precisely here that the contracting parties want a final definition in the sense of standardization. An overall referral with the consequence of the application of national conflict of laws would interfere here because of possible referrals contradicting the treaty.