Choice of law

General

For contracts or other matters with international aspects, the problem of choice of law arises because the legal systems in states have sometimes considerable differences among themselves and must be clarified which law is to apply. The Parties must therefore be aware that there are different systems of law; these must not be ignored nor neglected with regard to the legal consequences. The effects of the different legal systems are the subject of international conflicts of law. Make Parties consciously or unconsciously, not the possibility of a choice of law use, applies in cases of doubt, the legal system of the country with which a contract is most closely connected; which is usually the home country of the seller.

Validity of international law

For contracts with a foreign connection can not - as in contracts with exclusively German parties - be assumed that German law shall be applicable. In any situation involving a choice between the laws of different countries ( foreign element ), the unit rules of the Rome Convention ( so-called Rome I Regulation) are applicable. This Rome I Regulation has replaced the provisions of Article 27 et seq BGB in December 2009 and governs the law applicable to contractual obligations, if the policies have an international dimension. A contract shall be governed by Article 3 of the Rome I Regulation in principle to the law chosen by the parties. In the absence of unambiguous choice of law, applies, under Article 4, Section 1 of the Rome I Regulation in contracts of sale of movables, the law of the country where the seller has his habitual residence. An unreasonable disadvantage of the consumer is not here before. As a result, therefore, much to be said for the effectiveness of choice of law clauses in the terms and conditions. The user should, however, bear in mind that the chosen law to consumers not penetrated in any case.

Choice of law clause

To avoid possible disputes because of a missing or unclear choice of law, the parties have the possibility of a choice of law clause. With a choice of law clause, the Parties may affect the legal consequences of their contract. It defines the jurisdiction in which the contractual rights and obligations of the parties are to be subjected. The applicable law is not only decides whether a contract was ever completed form effectively, but also gives the current rules concerning the rights and obligations of both parties before. More specifically, the applicable law, whether the parties to the discretion represents their agreements are available. Also, the existence and effectiveness of choice of law judge on the chosen legal system.

The effectiveness of a choice of law clause shall be governed by the law of the Bundesgerichtshof by the chosen law. For the choice of law clause, the law shall prevail, to be applied according to the clause. If not selected, the application of German law, the law chosen by the parties could lead to the person concerned of the protection provided by mandatory provisions of German law is revoked. These provisions include all non -negotiable by party agreement provisions that are suitable and intended for a contractor to provide protection against the other. However, be refused under Article 6 Rome I Regulation for contracts for the supply of goods or the provision of services for a purpose that can not be attributed to the trade or profession of the consumer, a choice of law not cause the consumer of the protection afforded to him by the mandatory rules of the law of the State in which he has his habitual residence.

A choice of law clause often used is " German law applies excluding the UN sales law, even if ordered from abroad. " From this it can first be concluded that the CISG forms part of German law and therefore applies when it is not explicitly excluded. A ruling by the Landgericht Hamburg this choice of law clause in the terms and conditions also apply to consumers effectively and also no breach of competition law. The Hamburg Regional Court was of the opinion that it was not a question market behavior rules in the conflict rules of the Rome I Regulation; Rather, the unified through EU regulation collision law contains provisions of the applicable law in situations involving foreign countries. Such international law or European law rules of conflict of laws did not pursue the purpose to regulate market behavior. They pursued solely the purpose of determining the scope of the national legal systems. In addition, the choice of law clause is not contrary Conditions law, in particular neither of § 305c paragraph 1 BGB still violate § 305c Section 2 BGB. The clause is not surprising in the sense of § 305c paragraph 1 BGB, as the agreement the German law on sales contracts whose characteristic performance would be provided by an active in Germany entrepreneurs in doubt anyway correspond to the contract statute, which would apply for lack of choice of law (Art. 4 para 1 lit. a Rome I Regulation). In the absence of choice is subject pursuant to this provision the law applicable to contracts of sale namely the law of the country where the seller has his habitual residence. Such an agreement was therefore initially purely declaratory. For consumer contracts applies nothing else.

Restricting the choice of law

By Article 6 of the Rome I Regulation, the principle given right choice is limited because it must not cause the consumer of the protection of his home regulations is revoked. Only when the particular analogy and not capable requirements of Article 6 Rome I Regulation there is a Günstigkeitsvergleich between the selected and the German law - in which also can enforce the law chosen. However, according to the LG Hamburg is no exception to the free choice of law, but only the specification of the additional application of mandatory protective rules of the home country law of the foreign consumer.

Private International Law

In private international law, the right choice is often found application in order to allow the parties or to the exercise thereof entitled to a legal case involving foreign countries the opportunity to choose the best material and from the perspective of the parties or of the voter -effective legal system. The margin is given by the option, often also serves the realization of private autonomy between the parties, in particular in article 14, paragraph 2, Article 42 BGB. The particular choice of law by legal under German law pursuant to Article 4 para 2 BGB, by definition, only one transmission provision, so that the substantive law of the selected jurisdiction to the exclusion of its private international law (IPR ) apply. Such substantive rule references through the exercise of choice, open inter alia, the Article 10 § 2 and 3, Article 14, paragraph 2, Article 15, paragraph 2, article 25, paragraph 2 and Article 42 paragraph 2 BGB as conflict rules the IPR.