Renvoi

Comprehensive reference, also called IPR- related referral or referral, is the main type of conflict of laws referral in legal cases with an international dimension in reference norms. Legal consequence of the comprehensive reference is the application of foreign substantive law in the country, the lex causae, the facts to which the legal issue containing, under the condition that the foreign IPR " accepts " the referral.

The comprehensive reference provides in German private international law is (Art. 4 para 1 sentence 1 BGB ) the rule. Also see § 5 IPR law in Austria and Art 14Vorlage. Kind / Maintenance / ch- looking IPR law of Switzerland before the principle of comprehensive reference. Art.16 of the Belgian IPR law is, however, the principle of transmission provision of ( "à l' exclusion de droit international privé of règles ").

Comprehensive reference and transmission provision

• A comprehensive reference refers to the law of another state, including from its national conflict of laws. The total standard reference is therefore also referred to as " IPR- referral " or conditional referral. Indicates the foreign IPR to a third legal system, this law is applicable. Whether this second reference also represents an overall standard referral, can not be assessed from the perspective of domestic IPR, but from the perspective of the legal system that the ( "Next " ) has issued referral.
• A transmission provision or unconditional reference refers directly to substantive law of any other jurisdiction to the exclusion of foreign conflicts of law.

A transmission provision is available only if the law expressly provides otherwise or a total standard referral contrary to the spirit of the referral. This can happen especially when compared to alternative connecting factors which are in the most favorable, more optional connecting factors such as in Article 19 I BGB are possible. Article 19 I draft Law is to facilitate the establishment of paternity by several alternative starting points, with application to the right is called, which is more beneficial for the child. A comprehensive reference with its open back and referral options here would be out of place and would restrict the range of possible jurisdictions from which the favourability could draw again.

A referral is essential if the foreign substantive law is to be applied on the basis of a choice of the person concerned ( Art. 4, paragraph 2 BGB ).

Limitations of the comprehensive reference be made ​​by intergovernmental agreements in government contracts by public policy.

Return and onward referral

Where reference is made on the basis of a comprehensive reference on the IPR of the foreign state, his further and referral from the perspective of the forum is considered. The foreign law (lex causae ) takes the referral of domestic law to when they just as qualified referral terms, as the domestic law and also the same expulsion moments used. Otherwise there will be a referral back ( renvoi au premier degré ) or to a referral ( renvoi au second degré ).

Is not a problem if the foreign law accepts the referral of domestic law or another transmission provision pronounce. Assigns the foreign law, however, a conditional regulator referral or referral to a legal system, which in turn refers back or on the domestic law further directs county ( referral ), the problem arises of which legal should now be applicable. To solve this problem, the referral chain to be interrupted. There are three approaches:

The German law has opted for the case of an immediate return reference or a reference to the German legal system by a third country for the Homeward pursuit (Art. 4 para 1 sentence 2 BGB ). The case of a back reference to a foreign legal system remains open. Austria also arranges the Homeward pursuit theory, but also generalize this for the case of the return reference to a foreign law ( § 5 paragraph 2 IPR Law Austria ). Switzerland aims to backreference only in matters of personal or family status note (Art. 14Vorlage. Kind / Maintenance / ch- search Abs.2 IPR law -CH ).

Protection of international decision- harmony

The reason for a comprehensive reference is the maintenance of international decision-making harmony. It would not make sense to apply a foreign law by domestic authorities if the courts of that foreign state rely on them even to another jurisdiction for the decision.

The technique of total referral is accepted from the perspective of the forum court whether the foreign law will be applied to the resulting from the facts right question at all. They do not want it, ie it refers to its conflict of law rules in any other foreign legal or continue on the law of the forum State back, this decision is accepted from the perspective of the law of the forum State.

Examination

When considering which property right now travels at a comprehensive reference standard of review as to the legal case for the application, you can proceed as follows:

• Determination and application of the relevant international IPR standards to the facts: design according to the view of the foreign jurisdiction; ( it is usually at this point the lex fori of the foreign state in the qualification of the legal question of the facts )
• Examination of the referral of the relevant foreign IPR standards: Result 1: referral to a third law: as comprehensive reference ⇒ legal consequence: to consider IPR of the third State and, if necessary to examine further back and further references
• As transmission provision ⇒ legal consequence: applicable substantive law of the third State, lex causae ( substantive law ) of the third State in the forum state applicable