Germany: Proof of and Information About Foreign Law – Duty to Investigate, Expert Opinions and a Proposal for Europe

Abstract

For some 140 years now foreign law is regarded not as a mere fact to be proven by the parties, but as law under s. 293 of the German Code of Civil Procedure. This implies specific duties for the German courts. The ways for ascertaining the foreign law are analyzed in detail in this report from Germany, especially the characteristic expert opinions on foreign law delivered by German academic institutes. Remarkably, the Federal Court of Justice has established a very strict case-law on the judges’ duty to ascertain the content of the foreign law, although this Supreme Court does not rule on the content of the foreign law itself on appeal. De lege ferenda, this contribution argues for introducing – at least in the European Union – a reference procedure for preliminary rulings on the foreign law by a foreign court of the same level as the referring court hearing the case.