Oxford University Comparative Law Forum

Constitutional review of foreign law in English and German courts
A comparative study

by Maik Martin

(2002) Oxford U Comparative L Forum 5 at ouclf.iuscomp.org | How to cite this article | Discuss this article

Table of contents

• I. Introduction
• II. Constitutional review and the interplay between lex fori and the foreign lex causae: the ‘foreign court theory’ and its limits
  • A. Private international law, constitutional review and the ‘foreign court theory’
  • B. Limits to the forum courts’ jurisdiction to review under public international law and the lex fori
  • C. Limits to the forum courts’ jurisdiction to review under the lex causae and the ‘foreign court theory’
• III. Constitutional review of English law in German courts and vice versa
  • A. German law in English courts
• IV. The forum courts’ reaction to their jurisdictional limits of review
  • A. Lack of jurisdiction and the case for redress: an unfairness inherent in the system of private international law?
  • B. Preliminary references to the competent foreign court
  • C. Stay of proceedings in the forum: the doctrine of forum non conveniens
  • D. Exclusion of a foreign provision under the doctrine of public policy
• V. Conclusion
• Footnotes

I.Introduction

A civil court hears a transnational dispute between private parties, which, according to the forum’s choice of law rules, is governed by a foreign lex causae. One party submits that it considers the foreign statute applicable to the dispute to be incompatible with the constitutional law of the lex causae and wishes to lead evidence to that effect, or ask the court to inquire into that question, with a view to having the impugned provision disapplied and the dispute decided on the basis of other provisions of the lex causae.

How will the court respond to that submission; what does the forum’s private international law require it to do in these circumstances? This question will be addressed in this essay with respect to the laws of England as applied by the German courts on the one hand and those of Germany applied by English courts on the other. The study will deal exclusively with the effects which an incompatibility of primary legislation with constitutional norms of the lex causae creates from a private international law perspective and will therefore not address the questions of ‘unconstitutional’ subordinate legislation and, falling into a very similar category from a European law perspective, national primary legislation in contravention of EC law¹.

It is conceded that the practical scope of the problem of constitutional review of provisions of the foreign lex causae in the forum courts with respect to the laws of two states that, like England and Germany, by and large, share common values and, as member states of the European Community, show significant convergence or even uniformity in many areas of the law, is indeed a limited one. This finding is reinforced by the distinct ‘homeward trend’ of the English choice of law rules governing important areas of the law such as family law². The fact, however, that the only case that has - so far - come to the English courts where the court was squarely faced with the question of permissibility of constitutional review of the foreign lex causae provision, related to the corporate law of another EC member state (Italy)³, demonstrates at least a residual practical importance of this matter. Furthermore, a considerable number of aspects that will be discussed in the course of this study will also be applicable to instances where German or English law will have to be applied in fora other than England or Germany. However, what makes the present topic particularly interesting, are the respective peculiarities of English and German constitutional law and their practical effect on transnational civil litigation of the kind in issue.

In trying to find a satisfactory answer to the question as to how the English and German forum courts should react when faced with an allegation of ‘unconstitutionality’ of a lex causae statute, jurisprudence and, to a larger extent, influential scholarly writing will be presented and critically examined. In chapter II, the attitude taken by English and German law towards the review of foreign law by civil courts will be explained against the background of the general theory of English and German private international law. It will be shown that, within the limits set by the lex causae constitutional law, the forum courts will in principle not shy away from entertaining an incidental challenge to the constitutionality of a foreign lex causae provision. Building on this finding, chapter III will apply the tests identified in the preceding chapter to the particular question of the review of German and English law. It will then be concluded that, except for some practically insignificant constellations, the English and German courts actually lack jurisdiction to review (and invalidate) an impugned piece of English and German legislation respectively. The consequences of this situation will then be examined and discussed in chapter IV with a view to identifying and delimitating ways of addressing this shortcoming open to the English and German forum courts under their respective private international and domestic procedural law.

II. Constitutional review and the interplay between lex fori and the foreign lex causae: the ‘foreign court theory’ and its limits

May an English or German court adjudicating a civil dispute generally entertain a challenge to the constitutionality of a statutory provision belonging to the foreign lex causae that would be applicable to the dispute at bar? The answer to that question seems to be in the affirmative according to the relatively rich scholarly writing in both jurisdictions, touching, quite frequently merely en passant, on this issue⁴. If reasons for this opinion are given at all, they typically do not amount to more than a mere reiteration of the principle that the forum courts have to apply the lex causae in the same way as the courts of the lex causae jurisdiction would do if they were to decide the dispute. It is only Kahn-Freund (and perhaps Morris⁵) who, quite forcefully, expressed his disagreement with this position insofar as the forum courts would be called upon to decide not only on the formal validity of a law but also on the compatibility of a law with substantive provisions of constitutional law⁶.

The picture is less clear when one turns to the courts’ jurisprudence: despite there being instructive albeit somewhat unreasoned obiter dicta in the English courts to the effect that there exists no bar to the courts reviewing the constitutionality of a foreign laws⁷, Thomas J in the Commercial Court, upon being asked to hear evidence concerning the constitutionality of an Italian law, referred to that question as being one left open by previous decisions and deferred a decision on the justiciability of the issue until the parties to the action before him presented evidence pertaining thereto. However, the judge expressed doubts as to the propriety of an English court pronouncing on the constitutionality of a foreign law by informing the moving party in the instant case of the ‘formidable difficulties’ it would face persuading him to hold the issue to be justiciable⁸. As the case was later disposed of without the need to resolve the issue, there is to date no English decision with binding force on that matter.

On the other hand, there are some German judgments on this matter. The Oberlandesgericht (Court of Appeal) Hamm held that a German judge would have been entitled to examine the constitutionality of a foreign statute provided the lex causae allowed its own civil courts to do so⁹. Citing with approval a decision by the Bayerisches Oberstes Landesgericht (Bavarian Supreme State Court)¹⁰, the court then declined to rule on the constitutionality of the impugned Italian statute as Italian constitutional law itself did not allow the ordinary courts to pronounce on the constitutionality of primary legislation.

Although there is, as stated above, overwhelming support in most influential English and German academic writing for the position taken by the German courts, there is a marked absence of the discussion of the theoretical underpinning for that approach. It therefore seems appropriate to examine, at least cursorily, the theoretical framework for constitutional review of foreign law and the main arguments against the forum courts’ jurisdiction to review in this chapter before, in chapter III, turning to the question whether the English courts have jurisdiction to actually review German law against the German constitution and vice versa.

When comparing the approach taken by these two legal systems towards constitutional review of foreign law in its courts, the question will inevitably arise as to whether or not the mere circumstance that foreign law is treated as ‘fact’ under English private international law and as ‘law’ under German law has a decisive bearing on the question in issue. This, it is submitted, is not so. It is widely accepted that the categorisation of foreign law as either ‘fact’ or ‘law’ should not be overemphasised as neither legal order seems to accept the full consequences of its respective ‘official’ position¹¹; moreover, there is a noticeable similarity in the treatment of foreign law in the trial courts in England and Germany. In both systems the judge is, as a rule, not generally presumed to have knowledge of the contents of the foreign lex causae¹², so that it needs to be proved, the only exception being that of foreign law actually known to the German judge in an individual case pursuant to § 293 of the German Zivilprozessordnung (ZPO, Code of Civil Procedure). The main practical difference for the purposes of this study, therefore, is not so much one of ‘fact’ or ‘law’ but one of the burden and modes of proof: on whom is it incumbent to lead evidence to the effect that a foreign provision, that is initially found to be applicable, contravenes the lex causae constitution and is thus invalid? And by which means? Under English private international law the burden of proof rests with the party wishing to rely on the fact to be proven with this burden being discharged by the leading of expert evidence¹³, whereas in the German system it is upon the court under § 293 ZPO to adduce evidence to that effect by means of its choosing¹⁴. This distinction will have to be borne in mind particularly in chapter IV, where this issue will have to be revisited. For the present chapter, however, it suffices to restate that existing differences between the private international law of the jurisdictions to be studied will not be material to the question whether the courts generally enjoy jurisdiction to review.

A. Private international law, constitutional review and the ‘foreign court theory’

As has been mentioned in the preceding sub-chapter, the basic justification put forward by the numerous English and German advocates of the forum courts’ jurisdiction to review provisions of the foreign lex causae is what was aptly called the ‘foreign court theory’¹⁵: the English and German choice of law rules demand that the foreign lex causae be applied in the way it would be applied by the courts of the lex causae jurisdiction¹⁶. Thus, for the English system, the Court of Appeal once described the expert witness’s task as being to ‘predict the likely decision of a foreign court, [but] not to press upon the English judge the witness’s personal views as to what the foreign law might be’¹⁷.

This theory lies at the heart of the system of private international law with its aim to decide a transnational civil dispute according to the substantive law that, by choice or close connection to the matter in dispute, is considered the most appropriate in upholding the reasonable expectations of the parties, irrespective of the place where the litigation is conducted. This rationale of international ‘harmony’ necessarily implies what amounts to the crucial characteristic of the system of private international law, viz the distinction between jurisdiction and applicable substantive law, and it is only this distinction that makes the question to be discussed in this study a difficult one. When it comes to the problem of the constitutionality of a lex causae provision, the forum court will thus be asked to extend to the litigants the rights they would enjoy had they litigated in the lex causae courts, by asking the judge to examine the compatibility of the impugned provisions with the lex causae constitutional law. However, a forum court’s appreciation of the constitutionality of a foreign provision would not have any effect on the lex causae legal order and the continuing validity thereunder of the impugned provision as the forum courts’ jurisdiction will always be limited to the forum state’s territory. Therefore, and for reasons of comity between the courts of different jurisdictions, the forum courts would be prohibited from embarking on the highly delicate exercise of reviewing foreign legislation where their doing so would not have an immediate effect on the outcome of the litigation, and, obviously, where the challenge, in itself, constitutes the sole action.

Thus, since it cannot be incumbent on the forum courts to criticise, rather in abstracto, a foreign law and, moreover, the foreign legislature having enacted it, it is generally accepted that, under the ‘foreign court theory’, the forum court possesses jurisdiction to review only where an incompatibility with formal or substantive requirements of its constitutional law would entail the invalidity or at least its being subject to invalidation, of the impugned lex causae provision and thus only where the factor of unconstitutionality could have an decisive effect on the result of the litigation. In this case the forum court would be allowed to simply disapply the provision. It would thus put the litigants in effectively the same position they would be in had they had the dispute adjudicated by the lex causae courts; by doing so, the judge will have achieved to ‘disconnect’ the outcome of the litigation from the ‘randomness’ of the place where it was conducted.

The question whether or not the English or German forum court may engage in a review of the generally applicable foreign law is therefore, as a result of the ‘foreign court theory’, dependent on the hierarchical structure of the lex causae and, furthermore, on there being a jurisdiction vested in the lex causae courts to examine the validity of the laws they have to apply¹⁸: if no court may question the validity of a piece of legislation, then there is no justification for the forum courts to do so. (The issue of the concentration of the jurisdiction to constitutionally review legislation under the lex causae in a special judicial body and its effect on the jurisdiction of the forum courts will be addressed below in sub-chapter II.C.)

If the jurisdiction of the forum courts depends, under the ‘foreign court theory’, on the jurisdiction of the lex causae courts, there remains an additional factor to be considered. Despite the rationale of private international law being to make the result of litigation independent of its situs, it still has to be acknowledged that it is ultimately still the lex fori that controls the application of foreign law and may, albeit exceptionally, distort or rather limit the ‘foreign court theory’, be it, inter alia, initially and most importantly, through the forum’s choice of law rules, through the procedure followed in the forum courts, or through the forum courts’ power to exclude parts of the lex causae, or even all of it, under the doctrine of public policy or ordre public. These limits of the ‘foreign court theory’ may also have an impact on the question of review jurisdiction of the forum courts and, as they have played a significant role in the decisions of the English courts on this matter, will thus have to be addressed in the following sub-chapter. In general terms, one can conclude that in English as well as German private international law it is established that, when determining the jurisdiction of the forum courts, the result is preordained by the allocation of jurisdiction to review in the lex causae system under the ‘foreign court theory’ within the residual jurisdictional limits under the lex fori.

B. Limits to the forum courts’ jurisdiction to review under public international law and the lex fori

Provided the lex causae permits its courts to review legislation with a view to determining its constitutionality as a condition of its validity, the ‘foreign court theory’ would allow the English and German courts to do the same. Nevertheless, in English jurisprudence and academic writing, there has been an on-going discussion of the limits to the jurisdiction of the forum courts under (public) international law and the lex fori, purportedly barring these courts from entertaining requests for inquiring, or having inquired, into the validity of an impugned piece of foreign legislation. These limits pertain primarily to the perception of constitutional review as being a distinctly political, or at least politically charged, task¹⁹ that would usually not be incumbent on courts other than that of the lex causae for its intrusive and delicate nature.

There is, however, no generally recognised bar to the forum court’s jurisdiction to examine the validity of a foreign law under public international law²⁰: as, for the purposes of this study, the question of a statute’s validity will be one which is raised solely incidentally in transnational civil disputes over the private rights of the litigants, considerations of state immunity or, to use a more accurate term, immunity ratione personae, may bar the proceedings with respect to the nature of the parties involved but not, once no litigant acts in a sovereign capacity, with respect to the simple subject-matter of the dispute. Public international law does not generally know of a rule granting immunity ratione materiae to private litigants, as is acknowledged by the absence of a rule to that effect from the European Convention on State Immunity²¹ and the relevant provisions of the UK State Immunity Act 1978 and §§ 18 to 20 of the German Gerichtsverfassungsgesetz (GVG, Court Organisation Act), and, consequently, that point has never seriously been discussed in either English or German case law or writing on that matter. Lord Denning’s pre-State Immunity Act dictum, which was cited with approval by Morritt J in one of the leading cases concerning the question of constitutional review²², to the effect that state immunity would depend on the subject-matter rather than on nature of the direct or indirect parties to a dispute²³ has thus to be dismissed as at least highly inaccurate under the law as it now stands.

Thus jurisdictional limits, apart from those arising under the lex causae under the ‘foreign court theory’, can stem only from the municipal lex fori complementing the rules on immunity in international law. Here, English jurists and judges usually embark on a lengthy discussion of the limits and effects of what has been termed the Act of State doctrine; it is this point that forms the bulk of the considerations in the cases addressing the question of the permissibility of constitutional review of foreign law in the English courts²⁴. As in the most recent case on this issue²⁵, Thomas J opined that judicial authority would seem to leave open this question, some, albeit by no means exhaustive, elaboration on that matter and the judge’s appraisal of the current state of the law is called for.

The doctrine, which, according to almost unanimous judicial and academic writing, does not amount to a rule of customary international law but merely forms part of English constitutional law²⁶, governs the justiciability of cases and calls for judicial restraint or abstention²⁷ particularly in those kind of disputes that touch upon the politically sensitive area of foreign relations. Although there does not seem to be a general guiding principle to that doctrine²⁸, it can, for the purposes of this study, be summed up as a rule forbidding the inquiry into the validity of a legislative or executive act of a foreign state performed within its own territory. This principle has been first laid down authoritatively by the House of Lords in the decision in Duke of Brunswick v King of Hanover²⁹ and was reaffirmed and elaborated on by the same court in the seminal decision in Buttes Gas and Oil Co. v Hammer³⁰. In the former decision, the Lords held that an action the sole purpose of which was to challenge directly the validity of a decree by the King of Hanover could not be entertained by the English courts whereas in the latter case, the Law Lords ruled a private dispute unjusticiable for, in the course of its adjudication, the court would “be asked to review [incidentally and for violation of international law] transactions in which four sovereign states were involved [viz concession agreements], which they had brought to a precarious settlement, after diplomacy and the use of force”. Both cases, however, dealt with situations markedly different from those that are discussed in this study, as they involved either a direct challenge of a foreign piece of legislation or an, albeit incidental, attack on inter-state treaties and governmental action, and the House of Lords in Buttes Gas and Oil Co. expressly acknowledged the difference between an inquiry into the propriety and validity of “acts operating in the area of transactions between states” and the determination of validity “of a foreign municipal law or executive act if it is contrary to public policy or international law”. This dictum was in keeping with previous dicta in the Court of Appeal and the Chancery Division in Buck v A-G³¹ and Manuel v A-G³² respectively and, a few years later, a forceful dictum of Morritt J in 1990 in Dubai Bank Ltd v Galadari (No 5)³³ to the effect that the Act of State doctrine would not apply where, in a dispute between private parties, the English forum court was asked incidentally to inquire into the constitutionality and validity of provisions of a foreign lex causae governing the dispute at bar. This line of reasoning which is reflected in the most influential academic writing to date in the area of English private international law³⁴, shows quite clearly that the remarks referred to above by Thomas J in Nouva Safim S.p.A. v The Sakura Bank Ltd.³⁵ to the effect that the question of the applicability of the doctrine to the issue of constitutional review in a private international law litigation would still be an open one, are difficult to reconcile with what seem to be the generally accepted limits of the Act of State doctrine. They will therefore have to be dismissed as overly cautious and unsubstantiated. Thus, the doctrine cannot be regarded as jurisdictional limit to the English forum courts reviewing the foreign lex causae; as there is no comparable doctrine in German law³⁶, the question of jurisdictional limits of the kind discussed here does not arise with respect to German courts.

The mere contention that the forum courts, when called upon to examine the constitutionality of a foreign statute, might be required to engage in a somewhat politically charged act of adjudication they could be said to be ill-equipped to perform due to their lack of familiarity with the foreign constitutional law³⁷, cannot amount to a legal bar under the lex fori to the forum courts’ jurisdiction to review foreign legislation. However, this fact would certainly induce the forum courts to proceed with considerable reluctance and utmost circumspection when deciding on the constitutionality of the lex causae and may have an influence on the standard of proof a court would apply before disapplying a foreign law for want of constitutionality. As will be shown in sub-chapter IV.C, considerations of this kind may also influence the English forum courts’ decision whether or not to decline jurisdiction under the doctrine of forum non conveniens.

Therefore, neither international nor English or German law know of any rules barring the forum courts from examining the constitutionality and validity of a foreign statutory provision under the ‘foreign court theory’. Provided the lex causae grants its courts jurisdiction to review, the English and German forum courts will enjoy a similar competence, necessarily restricted, however, to the simple disapplication of the impugned provision.

C. Limits to the forum courts’ jurisdiction to review under the lex causae and the ‘foreign court theory’

Once it is accepted that, under the ‘foreign court theory’, it is exclusively the constitutional law of the lex causae that determines the jurisdiction not only of its own courts but, indirectly, also that of foreign courts, these provisions governing the courts’ competence to examine the constitutionality and validity of legislation will have to be examined so as to direct the forum judge regarding his or her jurisdiction to review the foreign law. Where, in a ‘diffuse’ system of constitutional review as the US, the lex causae allows the ordinary courts to examine the laws it is asked to apply and, incidentally, pronounce on their validity, the English and German forum courts would have jurisdiction to do the same and, if necessary, disapply the provision found to be contravening the constitution. Conversely, it seems generally accepted in England and Germany that, where the lex causae does not provide the courts with the competence to examine the applicable primary legislation, the forum courts will equally lack a such competence³⁸.

The matter becomes more complicated, however, where, in a more or less ‘centralised’ system of constitutional review, the relevant norms of the lex causae reserve the determination of the constitutionality and validity for a specialised judicial body, such as a constitutional court, or a number of exhaustively enumerated, usually superior, courts. In that case, the German courts and academic writers apply the ‘foreign court theory’ to the effect that, like their equivalents in the lex causae legal system, the German forum courts lack jurisdiction to review³⁹. Conversely, the position under English private international law is not entirely clear. Unlike most academic writers who would adopt the same approach as their German colleagues⁴⁰, Thomas J in the only English case so far where a court was squarely faced with that question⁴¹, was obviously not of the opinion that the reservation of jurisdiction to review the Italian law in question for the Italian Constitutional Court under the Italian constitution would necessarily deprive him of the competence to allow the law to be examined as to its validity in his court, once he would have found that the issue of constitutionality of a foreign law was justiciable in the English courts. This is made clear by his order to adjourn the matter in order to allow the parties to the action to prepare further evidence pertaining to that question for a hearing which, apparently, never took place.

Could there be any justification for a forum judge to disregard the lex causae’s barring the ordinary courts from pronouncing on the constitutionality of a statute? It seems at first glimpse that it could be argued that the ‘foreign court theory’, as interpreted liberally, would actually compel the forum court to assume the power to review, as the theory could be understood to mean that the litigants would have to be put in as much the same position by the forum court they would be in had they litigated the dispute in the courts of the lex causae. Were the forum court not be able to disapply a foreign provision, then a litigant alleging the invalidity of that provision would receive a less favourable treatment in the forum courts than in the courts of the lex causae, where he or she might have had the opportunity to have the provision invalidated on appeal or by way of application to a special judicial body. Thus, the place of the litigation might have a considerable impact on the result of the litigation. This interpretation of the ‘foreign court theory’, however, has to be rejected. No litigant can demand from the forum courts to be put in exactly the same position he or she would have been in had he litigated before a court of the lex causae. For example, as it is universally accepted that each court will exclusively apply its forum’s procedural law⁴², a difference in the outcome of a litigation from that had it taken place elsewhere can be inevitable despite the same substantive law having been applied, and this, although at variance with the general aim of private international law, is considered an irremediable fact of transnational litigation. This may show, that the ‘foreign court theory’ will have to be understood more narrowly as only requiring the forum judges to apply the foreign substantive law in the same way their opposite numbers in the lex causae legal system would be allowed to do, thus barring them from entertaining requests for an examination of the validity of a lex causae provision. This restrictive approach, consonant with the widely held view of German and English scholars on this matter, also gives due regard to the rationale of the lex causae legislature to reserve the competence to authoritatively determine the constitutionality and validity of primary legislation for a special body or category of courts: this is supposed to ensure that only those judges are allowed to examine primary legislation that are considered to be particularly qualified and thus been selected to embark on this highly delicate judicial task⁴³. Therefore, it has to be assumed that, upon a correct application of the law, the English forum courts, like the German forum courts, would not possess jurisdiction to review where that jurisdiction is reserved for a special court or courts under the lex causae.

In conclusion, under English and German private international law, the forum courts will enjoy jurisdiction to inquire into the validity of foreign legislation only if the jurisdiction to do so under the lex causae is vested in the ordinary courts.

III. Constitutional review of English law in German courts and vice versa

Having examined the general approach of English and German private international law to the forum courts’ competence to engage in an exercise of constitutional review of a foreign lex causae, this theory will now be applied to the question of the jurisdiction to examine provisions of the German and English lex causae in the English and German forum courts respectively. This will be done, first, by introducing the basic rules on constitutional review lato sensu in each jurisdiction and then, on the basis of the ‘foreign court theory’, by assessing the forum courts’ competence to review the German and English lex causae.

A. German law in English courts

Under arts 1(3) and 20(3) of the German Grundgesetz (GG, Basic Law), the legislature is bound by the constitutional order and the basic rights enshrined in arts 1 to 19 GG; all legislation has therefore to conform to the Grundgesetz and, if failing to do so, is invalid. Under arts 93 and 100 of the GG, however, the jurisdiction to authoritatively pronounce on the constitutionality and thus the validity of primary legislation is vested exclusively in the Bundesverfassungsgericht (BVerfG, Federal Constitutional Court). However, it is incumbent on the ordinary courts to examine the constitutionality of the laws they are asked to apply. If they take the view that a certain statute contravenes the Grundgesetz, and if the outcome of the case depends on the application of the statute, they are bound to stay the proceedings and refer the isolated constitutional question under art 100(1) GG to the BVerfG for an authoritative decision. The only, rather insignificant, exception to this restrictive approach of the Grundgesetz towards the constitutional review of primary legislation is, according to longstanding practice⁴⁴, what is slightly misleadingly called ‘pre-constitutional law’, a category that comprises those very few statutory provisions that had been enacted prior to the entry into force of the Grundgesetz in 1949 and which have not, since 1949, directly or indirectly, received parliamentary approval after 1949. Ordinary courts are empowered to pronounce on the constitutionality of these provisions for the purpose of a given dispute, and to disapply them for violation of the Grundgesetz. By and large, however, the German system of constitutional review can be regarded as a typical example of a ‘centralised’ system of review.

Applying the ‘foreign court theory’ under the rules of English private international law, it is readily apparent that an English forum court, when called upon to apply the German lex causae, would lack jurisdiction to entertain challenges to the constitutionality of primary legislation just like its German counterpart⁴⁵, unless the provision in question falls in the very narrow category of ‘pre-constitutional law’. Whether or not the English forum court may make a preliminary reference under art 100(1) GG to the BVerfG, does not affect the question of the court’s competence to engage in an independent review of the German legislation on its own, and will thus be considered below in chapter IV. Thus it has to be reiterated that, in the overwhelming majority of cases, the English forum courts may not question the validity of German legislative provisions in the course of transnational civil litigation.

B. English law in German courts

Turning to the question whether a German forum court may examine the validity of English statute law which it is called upon to apply as the lex causae, the situation with regard to what may be termed constitutional review lato sensu under English constitutional law is quite a more complex and rather unique one. When it is said that, in English law, there is no such thing as constitutional review proper in the sense that there would be at least some courts that have jurisdiction to strike down primary legislation under a hierarchical order of legislation, then, whilst this statement does indeed contain a basic truth in its simplicity and generality, it does not do justice to what has become a highly elaborate and multifaceted system. It is therefore helpful for a subsequent analysis under the ‘foreign court theory’ to examine the possibility and means of constitutional review lato sensu in English law, and, first of all, to draw a firm line between formal and substantive aspects of legislation, as these are governed by very different sets of rules.

With respect to formal aspects of legislation the governing rule at common law is that of the sovereignty of Parliament: the courts are bound to apply Acts of Parliament but it is also the courts that have to determine whether a parliamentary resolution lato sensu amounts to an Act of Parliament. Under the ‘enrolled bill rule’ they do so by looking at the enactment and particularly its enactment formula and, provided that these state that the enactment is an Act of Parliament, was duly passed by both Houses and received the Royal Assent, are bound to recognise this enactment as an Act of Parliament they are obliged to apply⁴⁶. As was confirmed by the House of Lords in Pickin v British Railways Board⁴⁷, the courts will not inquire into the proceedings leading to the passage of an Act of Parliament; it is, however, suggested that when it would be patently obvious that a bill has not been passed by both Houses, despite this being required, the courts might be allowed not to regard this bill as an Act of Parliament contrary to what its enactment formula states⁴⁸. Thus, there can be an, albeit extraordinarily limited, possibility of ‘constitutional review’ as to the formal validity of an Act of Parliament.

In this respect, applying the ‘foreign court theory’, the German forum courts would be competent to perform a similar inquiry; as this is, however, a highly theoretical possibility, there is no need to elaborate on this any further.

What is indeed of greater practical importance is the question whether there is, in English law, a jurisdiction of the courts to examine the substantive conformity of a law with constitutional law. This question is governed by the Human Rights Act 1998: under s 3(1) of the 1998 Act it is incumbent on all courts to interpret legislation ‘as far as it is possible to do so’ in a way that is compatible with the rights under the European Convention of Human Rights (ECHR) being given domestic effect by the Act; thus regard must be had in all adjudication to the substantive requirements of the rights enshrined in the ECHR. However, as s 3(2)(b) of the Act makes abundantly clear, any incompatibility of a statute with the ECHR would not affect the validity of the impugned legislation so that there is, at first sight, no connection between rights-compatibility and the validity of legislation. A peculiarly British form of constitutional review is, however, provided for in s 4 of the Act, according to which courts, when examining the conformity of legislation with ECHR rights, may, upon finding the law to be violating these rights, make a declaration of incompatibility under s 4(2). According to s 4(6)(a) and in keeping with the traditional doctrine of parliamentary sovereignty, such a ruling does not affect the validity of the provision in issue. The rationale of this unique remedy has been described as giving notice to Parliament so as to allow Government and Parliament to rectify the identified deficiency⁴⁹ using the fast track remedial mechanism provided for in schedule II to the 1998 Act which is only triggered by the court declaration. As it was perceived that a declaration of incompatibility was of ultimate constitutional importance⁵⁰, jurisdiction to make such declaration has, in s 4(5) of the Act, been reserved for the superior (but not necessarily appellate) courts, ie the High Court, Court of Appeal and House of Lords. Behind this rather complicated combination of legal and political procedures aimed at addressing deficiencies of primary legislation lies the assumption that, in the overwhelming majority of the few cases where a declaration of incompatibility would actually have to be made, Parliament and Government will pay heed to it and bow to the pressure that results from its publication⁵¹. The system thus emphasises the political rather than legal enforcement of constitutional norms under the Human Rights Act 1998⁵².

The result of that enforcement mechanism is that, at least with respect to disputes litigated in the High Court, where this court has made a declaration, the incompatibility will neither have an immediate nor automatic influence on the court’s decision on the merits of a dispute. But is there no conceivable procedural possibility of remedying, so to speak, that ‘shortcoming’ of the 1998 Act with respect to the individual litigant? It has been suggested that the High Court, when making a declaration, could stay the proceedings before it and wait for remedial action being taken by the Government so as to be able to eventually adjudicate on the basis of the rectified legislation⁵³. Although, unlike under the rules governing the reference procedure in devolution issues⁵⁴, there is no provision expressly asking the court to take that course of action, it could be assumed that the court could, nonetheless, choose so to act on the basis of its general case management power to stay proceedings under CPR 3.1(2)(f). Alternatively, and particularly for disputes that are tried in the county courts where a declaration may not be made, it has been suggested that a stay of execution pending appeal could be granted so as to allow the aggrieved litigant to obtain a declaration on appeal to the High Court with that court staying the appeal proceedings while remedial action is being taken⁵⁵. Either way, these considerations show that the superior courts’ power to make a declaration of incompatibility could, albeit somewhat indirectly but probably still noticeably, influence a dispute’s final, and quite likely appellate, decision, provided always that there exists the requisite political will on the part of Government and Parliament to redress the identified violation.

All this is undoubtedly of great relevance to the question of the use of constitutional law in civil proceedings in the English courts, but what is the impact of the Human Rights Act 1998 on the application of English law in the German forum courts? May the German judge review an English statute and, where he or she thinks fit, make a declaration of incompatibility? First and foremost, it has to be recalled that the forum court may only engage in an exercise of constitutional review under the ‘foreign court theory’, where the lex causae court’s doing so could have an impact on the court’s decision on the merits of a dispute. On this premise, the German forum court, like its English counterpart, is obliged to take the ECHR into account under s 3(1) of the Act in order to discharge its interpretative obligation which might indeed influence the decision in a case at bar. However, a declaration of incompatibility would, as just described, not be capable of having a similarly immediate and automatic effect on the outcome of a litigation as it lacks in direct and automatic impact on the validity and thus the applicability of the criticised provision. Thus, the German forum judge would have no reason for making a declaration, considering that a declaration by a foreign court would certainly not have the legal effect of triggering the remedial action provisions, so that the forum judge could not even speculate on a change in the law while he or she had the proceedings stayed. Moreover, it is most doubtful whether, under the ‘foreign court theory’, a German could have jurisdiction to make a declaration at all, as Parliament in s 4(5) of the 1998 Act explicitly reserved that jurisdiction to the higher courts on the assumption of their judges’ extraordinary qualification; this makes the English system of constitutional review lato sensu more similar to a centralised system, where the competence to review is reserved for a special body or small number of courts.

All these considerations lead to the conclusion that a German forum court, whilst being under an obligation to interpret the English lex causae in accordance with the ECHR, does not have jurisdiction to examine the validity of an English statutory provision, save perhaps in the most unlikely circumstance that the lack of approval to the legislation by one of the Houses of Parliament is alleged.

IV. The forum courts’ reaction to their jurisdictional limits of review

Having established that, obscure constellations apart, neither the English nor the German forum courts possess jurisdiction to perform a meaningful act of constitutional review with regard to the German and English lex causae, the discussion will now turn to the forum courts’ possible means of reacting to this lack of jurisdiction.

A. Lack of jurisdiction and the case for redress: an unfairness inherent in the system of private international law?

Before these means of reaction will be examined, however, the question needs to be answered whether there is any need for a specific reaction of the forum courts to address their identified lack of jurisdiction to review. This question has to be discussed against the background of the very objective of the system of private international law, which, as described above in sub-chapter II.A., is to adjudicate a dispute according to the most appropriate substantive law irrespective of the situs of adjudication, and thus to achieve what was called an international harmony of results. So, ideally, the outcome of litigation in the foreign forum court would be the same as that had the case been litigated in the courts of the lex causae, including those of appellate jurisdiction; the choice of venue for a litigation should therefore not have a decisive impact on the final judicial resolution of a dispute. However, if the English or German lex causae is applied by a foreign court, this harmony may not be achieved since the forum judges lack the means of influencing the applicable substantive law by invalidating parts of it or at least triggering a most likely imminent, albeit political, change of the law which an appellate court could base its final decision on. Thus, there is the possibility that litigation will have an outcome actually very much dependent on its being conducted in the lex causae legal system or in a foreign forum court.

Such difference in outcome resulting from the choice of venue for litigation, however, is not, in itself, inconsistent with the system of private international law, even though it fails to reach the original aim of that system. As mentioned above, two poignant other examples can be given for this inherent limitation of harmonisation within the system: the application of the lex fori procedural law in the forum courts and the universally recognised power of the courts to exceptionally disapply a provision of the foreign lex causae under the doctrine of public policy or ordre public. These examples show that the present system of private international law does indeed - perhaps only grudgingly - accept that differences between the results of litigation of the same dispute in a foreign forum court and the courts of the lex causae do exist, provided there is a justification for this in private international law itself and no alternative way of addressing this inequality consistent with the substantive or procedural law the forum judge is bound to apply.

However, it is readily apparent that, when it comes to the application of foreign substantive law, the forum courts should, and generally will, attempt to adjudicate the dispute before them in a way that reduces any inequality resulting from the distinction between the applicable substantive law and jurisdiction wherever possible. In one instance, English forum judges saw an exceptional difficulty to apply the foreign lex causae in a way a lex causae court might be able to do as sufficient justification for declining jurisdiction in favour of the lex causae courts under the doctrine of forum non conveniens⁵⁶. These cases exemplify the forum courts’ general reluctance to lightly accept limits of any kind to their ability to apply foreign substantive law to the same effect as the lex causae courts could do where it would be open to forum judges to redress these shortcomings. Therefore, in answer to the above question, it is submitted that a case for the forum courts to seek for a way to address their lack of jurisdiction to review, if possible, can be said to be made out and will be discussed in the following sub-chapters.

B. Preliminary references to the competent foreign court

The, at first sight most straightforward, way of addressing the forum court’s lack of jurisdiction to review while at the same time preserving its original jurisdiction to eventually decide the dispute at bar on the merits, would be for the court to stay the proceedings before it and make a preliminary reference to a lex causae court of competent jurisdiction (ie the German BVerfG or the High Court of Justice of England and Wales), asking it to rule, in abstracto, on the question of compatibility of a law with the Grundgesetz or the ECHR, and thereby allowing the lex causae court to invalidate the impugned provision or make a declaration of incompatibility which the British Government could act upon by taking remedial action. The forum courts could then adjudicate the dispute on the basis of the rectified law, had there indeed been some constitutional incompatibility. But do the English and German forum courts have jurisdiction to pursue a such course of action? The answer to this question will be in the negative as a result of the lack of the competence of both the English and German courts to either make a reference or accept a foreign reference and rule on the constitutional question referred to it.

For the English forum courts this issue has not yet been authoritatively decided; Thomas J in Nouva Safim S.p.A. v The Sakura Bank Ltd.⁵⁷, whilst expressing some doubts as to the propriety of the proposed course of action, neither outrightly rejected nor immediately granted an application to refer a the question of compatibility of an Italian law with the Italian constitution to Italy’s constitutional court, but left the matter undecided. In English academic writing, only Kahn-Freund addressed the question, answering it in the negative, albeit without giving reasons for his doing so⁵⁸. Thus, the issue will have to be discussed and decided on the basis of accepted general considerations of English private international and procedural law. The prime axiom with respect to the application of foreign law in the forum courts is the need for the foreign lex causae to be pleaded and proved by the party to a dispute wishing to rely on it⁵⁹. It would therefore be incumbent on the party alleging the incompatibility of a foreign provision with lex causae constitutional norms to lead evidence, by expert testimony, to that effect and so prove its contention. The courts, under what used to be RSC Ord 39 and is now CPR 34.13, would only have jurisdiction to assist a party wishing to adduce testimonial evidence from abroad by issuing letters of request for deposition out of the jurisdiction (ie the examination of a witness abroad by a commissioner). This the Court of Appeal might be prepared to do, as expressed obiter in Settebello Ltd. v Banco Totta and Acores⁶⁰, with regard to the formal validity of foreign legislation by the issuing of letters of request for foreign politicians to be examined as witnesses in respect of the observation of constitutional requirements during the legislative process. This, however, presupposes the English forum court to have jurisdiction to determine the validity of the impugned foreign provision, which it lacks vis-à-vis German law. Moreover, it is readily apparent that a court’s making of a reference to a foreign court is a matter entirely different from requesting a foreign person to give testimony as to the legislative procedure observed for the enactment of a particular statute, which leaves it to the English court to decide on the validity of that foreign statute. Thus, while acknowledging the common law’s potential for further development, there is, at present, no legal basis for the English forum courts’ jurisdiction to refer, as a reference procedure would be inconsistent with the general theory of proof of foreign law by upsetting the rules on the burden of proof of foreign law.

Even if this conclusion would prove to be wrong, it seems most doubtful whether the BVerfG would have jurisdiction to accept a reference from an English court. Whereas the relevant provisions of art 100(1) GG and §§ 13 and 80 BVerfGG empowering, and indeed requiring, the German courts to refer constitutionally dubious legislation to the BVerfG for authoritative determination of its validity, only speak of ‘the courts’ in most general terms and thus do not contain an express restriction of this jurisdiction to German courts, it is firmly established in academic writing and the BVerfG’s jurisprudence that this term, in its meaning, is identical to the same term as used in art 92 GG, meaning a judicial body established by, necessarily German, legislation and thus excluding non-state, foreign or international courts⁶¹. However, it will have to be borne in mind that this view is a general one formed against the background of art 92 GG, and one that has never been expressed with respect to the question whether a foreign court applying s German statute would qualify as a court within the meaning of art 100(1) GG, as this question has, so far, never arisen and was thus never addressed. Considering that the procedure under art 100(1) GG has been held to be one without participants stricto sensu, established to protect the Grundgesetz from violation by the German legislature enacting unconstitutional laws⁶², it seems quite arguable that it could not make any material difference whether it is a German or a foreign court that points the BVerfG to a possible violation. Thus, the term ‘court’ in art 100(1) GG may well have to be given a broader meaning, also encompassing foreign courts that are called upon to apply German law. However, it would by no means be surprising if the BVerfG would take a rather dim view of this suggested interpretation, as, in an earlier decision⁶³, that court showed its pronounced disinclination to extend its jurisdiction, in the instant case by analogy, even upon being faced with a readily identifiable political need for its doing so, maintaining that the court’s jurisdiction was enumerated exhaustively in the Grundgesetz.

Conversely, regarding the possibility of a German forum court referring a British statute to the High Court of Justice, similar difficulties have to be recognised. When asked to refer an Italian family law statute to Italy’s Constitutional Court, both the BayObLG and the OLG Hamm held that, in consonance with the predominant view in German scholarly writing⁶⁴, in the absence of an multi- or bilateral treaty providing for a reference procedure between Germany and the state to whose courts a reference would be asked to be made, the German forum courts do not possess the power to refer an issue to a lex causae court⁶⁵. This was briefly explained with the lack of the courts of one state of the power to extraterritorially engage another state’s courts in the course of proceedings before it due to the territorially limited judicial jurisdiction of state courts.

This statement may, in its generality, be misleading, as civil courts are, for instance, generally considered competent to apply to foreign courts to grant them legal assistance, eg by ordering the examination of a witness in the foreign court’s jurisdiction, even in the absence of a treaty or legislation specifically providing for this⁶⁶. In some jurisdictions like England, however, a such application would only be entertained upon its being received if there is a statutory basis for doing so⁶⁷. This shows that even in the trodden paths of transnational civil legal assistance, there will be constellations where the lack of specific legislation or treaty provisions would lead to grave doubts, at the very least, as to the existence of a power of the courts to ask for specific acts of assistance. This will particularly hold true with such most novel and unusual requests for the examination of a statute that arguably may not even qualify at all as ‘legal assistance’ within that term’s traditional meaning. Neumayer’s lapidary reference to what he calls comitas gentium as a basis for preliminary references⁶⁸ will thus not lead very far; in the marked absence of legislation, treaties or even a generally recognised tradition praeter legem establishing a somewhat unconventional transnational reference mechanism, the above-cited German courts’ reasoning does not, on a more narrow reading, appear unsubstantiated.

Furthermore, turning to the English courts’ jurisdiction to accept a reference from a German court, it would be most doubtful, to say the very least, whether any superior English court would have the requisite competence to entertain requests for abstract determinations of the law, where such a competence is not expressly vested in them by legislation. Until the enactment of the Scotland Act 1998 English law did not know of a jurisdiction of the courts to pronounce on isolated, abstract questions of law; if a legal issue had to be resolved authoritatively, the whole dispute had to be appealed to the superior courts; a mechanism of (internal) preliminary references was indeed unheard of. Considering that Parliament only introduced a preliminary reference procedure in parts II and III of schedule 6 to the Scotland Act 1998 for devolution issues, but refrained from doing so for English human rights issues under the Human Rights Act 1998, it has to be assumed that English courts do not generally possess jurisdiction to pronounce on abstract questions of constitutional law. It does, thus, seem quite unthinkable indeed that the High Court would be prepared to accept a reference from a foreign court.

Therefore, an isolated and abstract reference of the ‘constitutional question’ from the English or German forum courts to a court of internally competent jurisdiction does not seem to be a permissible way for the forum courts to address their lack of jurisdiction to review legislation themselves.

C. Stay of proceedings in the forum: the doctrine of forum non conveniens

If the forum courts may not isolate the constitutional issue from the factual dispute at bar and refer it for abstract determination to the competent lex causae court, then the question arises whether the forum courts could not refer the whole of the dispute to the lex causae courts. As references stricto sensu surpass the forum courts’ jurisdiction, they might instead decline jurisdiction to hear the dispute at all in its entirety and point the parties to the possibility of obtaining justice in the lex causae courts, where the constitutional issues could naturally be addressed best. This always presupposes, however, that the respective lex causae courts actually have concurrent jurisdiction over the relevant dispute; thus, where the forum court is not satisfied that this would be the case, that court would obviously refrain from declining jurisdiction as this would deny justice to the parties. This consideration apart, it will now be shown that only the English forum judges may, in the appropriate circumstances, choose this course of action whereas their German counterparts are prohibited from doing so.

In English private international law, the English forum courts’ discretion either to refrain from assuming jurisdiction over a transnational dispute by refusing permission to serve proceedings on a defendant out of the jurisdiction under CPR 6.17 et passim, or to decline their existing ‘transient’ jurisdiction, has been firmly established with the seminal decision of the House of Lords in The Spiliada⁶⁹ in 1987. In his leading speech, Lord Goff of Chieveley laid down the following, now generally accepted two-limbed test guiding the courts’ discretion to decline jurisdiction: a court may do so on the basis that England is an inappropriate forum if, first, the defendant shows there to be another court with competent jurisdiction which is clearly and distinctly more appropriate than England for the trial of the action, and, secondly, it is not unjust that the claimant be deprived of the right to trial in England⁷⁰. A similar test applies to the exercise of the discretion to not assume jurisdiction by permitting service out of the jurisdiction under CPR 6.21(2A). As was recognised in The Spiliada and emphasised in later decisions of the Court of Appeal⁷¹ and influential academic writing⁷², the lex causae and its complexity could indeed be a decisive factor for the appropriateness of the English or a foreign forum under the first limb of the Spiliada test. However, it would obviously mean driving a coach and horses through the system of private international law if one were to assume that the mere fact that a complicated issue of foreign law would have to be decided by an English court would generally be sufficient to render the English forum almost automatically inappropriate with the result of a stay being granted in favour of the lex causae forum. This would not be what the doctrine of forum non conveniens is intended to achieve.

With this caveat in mind, however, it is equally apparent that it is where an English court, when deciding an issue of foreign law, would have to pronounce on highly sensitive legal questions of policy or, indeed, constitutional law, that the fact that an English court is called upon to apply a foreign law may most legitimately lead to the lex causae forum being considered the distinctly more appropriate one under the first limb of the Spiliada test. This can be inferred from the judgment of Bingham LJ (as he then was) in E.I. du Pont de Nemours v Agnew⁷³, where his Lordship held that novel questions going to the root of the lex causae’s internal public policy should be resolved in the courts of the lex causae. Where the forum judge is, as under the German lex causae, even barred from addressing a constitutional issue at all, Thomas J’s dictum in the Nouva Safim decision⁷⁴ holds even more true: ‘Plainly any court would […] be most reluctant to entertain considerations of the constitutionality of the legislation of a foreign sovereign legislature; that is the task for the courts of that foreign country and not a task which an ordinary court of the forum state is for obvious reasons equipped to deal.’ Thus, under the first limb of the Spiliada test, the lack of jurisdiction of the English forum courts to review legislation where a case for doing so is made out, may strongly point to the lex causae courts as being the more appropriate forum to adjudicate the dispute at bar.

However, the application of the second limb of the test may, again, in the individual case tilt the balance for granting a stay of proceedings back, so to speak, in favour of the claimant where there are fears for the justness of requiring a particular claimant to pursue a his or her action in the lex causae courts. Furthermore, existing jurisdiction agreements between the parties to a dispute may make the case for a defendant to persuade the English forum court to decline jurisdiction for want of competence to entertain incidental constitutional challenges a very difficult one⁷⁵.

A potentially not entirely insignificant obstacle for an English court to address its lack of constitutional jurisdiction by granting a stay in favour of the German lex causae courts may, however, be the fact that both German and English courts are subject to the Jurisdiction and Judgments Regulations (EC) 44/2001 (incorporating the Brussels Convention into EC law) and (EC) 1347/2000, which, within their scope of application, do not allow the forum courts to decline existing jurisdiction. Thus, where the English court’s jurisdiction is based on the provisions of Regulation (EC) 44/2001 which, under the general rules of arts 2(1) and 4(1), is the case where the defendant is domiciled in a Regulation state, the court is prohibited from declining jurisdiction in favour of the German courts. However, where the defendant is not domiciled in a Regulation state, then, according to the highly controversial decision of the Court of Appeal in Haji-Ioannou v Frangos⁷⁶, interpreting art 4(1) of the Regulation and s 49 of the UK Civil Jurisdiction and Judgments Act 1982, the English forum would have a residual power to stay the proceedings in favour of the German courts. Without going into the (de-) merits of this jurisprudence, this shows that the generally beneficial means of addressing the English courts’ lack of jurisdiction to constitutionally review German lex causae provisions by staying proceedings under the doctrine of forum non conveniens will only be of help to non-EC-domiciled defendants, and even where the courts do actually enjoy a discretion to not assume or to decline jurisdiction, the practical application of the doctrine is, as was demonstrated now, fraught with difficulty, so that its practical merits and salutary effect for the purpose of addressing the matter of the English forum courts’ jurisdictional limits, is significantly curtailed.

With respect to the possibility of the German forum courts declining jurisdiction in favour of the English lex causae courts when they have initial doubts as to the compatibility of an English statute with the ECHR under the Human Rights Act 1998, this examination will be a short one indeed. As the system of rules governing the courts’ civil jurisdiction has been devised as a closed one⁷⁷, strictly defining the conditions under which the courts have jurisdiction to hear a dispute, this leaves in principle no room for a general discretionary power of the courts to decline jurisdiction for inappropriateness of litigation being conducted before the German forum courts⁷⁸. This rigidity of the system of jurisdiction is reflected in the Grundgesetz, guaranteeing, in art 101(1)(2) GG, an adjudication by the ‘legally competent’ or ‘lawful’ judge, requiring a predictable jurisdiction which must not be manipulated under any circumstances, and, under the notion of Rechtsstaatsprinzip (rule of law) based on art 20 GG, the guarantee of a judicial decision (Justizgewährungsanspruch⁷⁹) Thus, as is generally accepted, the doctrine of forum non conveniens would be fundamentally at odds with constitutional requirements under German Grundgesetz⁸⁰. German courts may therefore not resort to an indirect referral of a dispute to the English courts by way of staying the proceedings and are thus barred form addressing the problem of lack of jurisdiction to make a declaration of incompatibility by way of referring the dispute to another forum.

D. Exclusion of a foreign provision under the doctrine of public policy

With the possibility of the forum courts to refer, indirectly, a dispute to the lex causae courts being, under English law, in the majority cases a largely hypothetical or, under German law, even a virtually non-existent one, the remaining question will now be whether the lex fori could confer, outside the constraints of the ‘foreign court theory’, a residual power on the forum courts to disapply a foreign provision for the same or similar considerations that would lead the competent lex causae court(s) to it invalidating the law or declaring it to be incompatible with basic constitutional norms.

In order to compensate for the risks of what has famously been called the ‘leap into the dark’⁸¹ by the forum’s choice of law rules blindly requiring a foreign lex causae to be applied, the lex fori reserves to the forum courts a universally accepted mechanism to control the application of the foreign law by way of excluding a foreign provision where it, either in itself or as the result of its application, would manifestly be repugnant to the forum’s fundamental considerations of justice, fairness and public morals, ie its public policy or ordre public. Whereas the German courts, under art 6 of the Einführungsgesetz zum Bürgerlichen Gesetzbuch (EGBGB, Introductory Law to the Civil Code), may only have regard to the actual result of the application of a foreign law and its compatibility with the German ordre public⁸², English courts may, in the most extreme of circumstances⁸³, even disapply a foreign provision for its outrageous defiance of basic standards of decency and justice, in and of itself⁸⁴. However, considering that an English court would be most reluctant to criticise a foreign law in abstracto rather than the actual result of its application, the practical difference between the English and German operation of the doctrine is negligible for the purpose of the present study.

In how far, now, can this exceptional and most sparingly used power under English and German private international law to exclude foreign laws for public policy reasons be used to address the English and German forum courts’ jurisdictional limits discussed in this study? The mere fact that a foreign law is incompatible with lex causae constitutional norms cannot, of itself, infringe the forum’s public policy⁸⁵, as this would mean to allow the foreign constitutional legislator to determine what amounts to the forum state’s public policy, which is exactly what the notion of public policy as a control mechanism under the lex fori is not about. It is therefore crucial to keep in mind, that the yardstick for determining whether the result of the application of a foreign law can be tolerated by the forum are the fundamental norms of lex fori, and not those of the lex causae. Thus, only where these fundamental norms of the lex fori are materially identical with those of the lex causae constitutional law, would the forum courts, via the doctrine of public policy, effectively be able to review the substantive constitutionality of an impugned foreign provision. A review of the law as to its meeting purely formal constitutional standards for validity under the doctrine would therefore, however, be impossible as these fundamental norms will exclusively be of a substantive character.

As fundamental rights under the forum’s constitutional law will generally have a direct bearing on the forum’s public policy (eg under art 6 EGBGB), the contents of what amounts to the English or German forum’s public policy is converging with the general trend of convergence of substantive constitutional standards in Western Europe, particularly under the roof of the ECHR. Thus, it is not only since the ECJ’s seminal decision in Krombach v Bamberski⁸⁶, that it has gradually been accepted that the rights under the ECHR form part of the Convention states’ public policy⁸⁷, so that a German forum court would, with the ECHR, apply the same yardstick to an English statute as its English counterpart when, under the Human Rights Act 1998, pronouncing on the compatibility of a law with the Convention in intra-UK litigation. Unlike the English courts, the German forum judge would even be able to ‘strike down’ legislation, so to speak, by completely excluding an impugned provision under art 6 EGBGB, which implies, however, that the forum courts will always have to tread with utmost caution and circumspection when asked to make use of this rather blunt tool. The possibility to review - lato sensu - foreign legislation also applies vice versa to the English courts applying German law, with the exception, however, that where the Grundgesetz goes further than the ECHR in granting fundamental rights, as, for example, in the generality of art 3 GG, the ECHR component of English public policy could not be of much help, so that the judge would have to resort to the traditional public policy analysis, which would be less strict, or better: ‘rights friendly’, than the approach under the ECHR.

A limit to the English and German forum courts’ use of this exceptional device to address their original lack of constitutional jurisdiction would usually have to be seen in the requirement of a sufficiently close connection of a dispute to the forum for the doctrine of public policy to be applicable⁸⁸, but, as international fundamental rights instruments arguably lay down a general minimum standard of rights⁸⁹, it is suggested that the doctrine can even be applied where there is only a comparatively weak link to the forum or, at least, another ECHR state⁹⁰. A such which will usually be present in the disputes in issue in this study. Therefore, this general condition for the operation of the doctrine would not detract much from doctrine’s likely effectiveness in addressing the problem discussed in this chapter. However, bearing in mind the doctrine’s obvious shortcomings hinted at above and its being considered a somewhat alien, ill-fitting, and thus exceptional, element in the system of private international law, the doctrine, despite its readily apparent salutary practical effect, might nonetheless not be regarded to be an unreservedly satisfactory means of addressing the matter under examination here.

V. Conclusion

It is a truism that transnational civil litigation, in the problems that may and frequently will arise in the course of it, significantly differs from what would be perceived as ‘normal’, intra-national, litigation. Not only will litigants have to face a procedural law that is different from the one they might be used to or deal with, or, eg, the problems of having to have evidence being taken abroad, they may also find themselves in a less favourable position than a litigant in a comparable intra-state litigation in the lex causae courts when it comes to the application of that lex causae. Where the constitutional law of the lex causae provides for a special procedure for the determination of the constitutionality of a law and its invalidation by reserving this act for a constitutional court or the superior courts or even by making it a process which not only requires legal but also discretionary governmental action, the forum courts cannot ‘mirror’ this procedure and will thus have to content themselves with applying the law as their lex causae counterparts would be obliged to do. A law that may ultimately be invalidated or changed due to it being incompatible with constitutional norms under the lex causae legal system will thus generally have to be applied by the forum court irrespective of doubts as to its constitutionality.

However, with the objective of the system of private international law in mind, ie to achieve international harmony of substantive results through the uniform application of the lex causae regardless of the place of litigation, courts will be faced with the question as to how to address this difference in treatment by the lex causae system and the forum courts. None of the traditional means of dealing with this issue by the courts under English and German private international or procedural law has been found to be entirely satisfactory. They are either inconsistent with constitutional principles, or with the general theory underlying the application of foreign law, or are restricted in their effect by EC legislation, or can only address parts of the problem. Even for the very small number of cases where these problems do actually arise, what seems to be called for is the establishment of a mechanism allowing forum courts to refer constitutional questions pertaining to the application of the lex causae to a lex causae court of competent jurisdiction, going hand in hand with requisite changes to the respective private international law order to allow for a such mechanism to operate in consistency with the forum rules on the application of foreign law. A multilateral convention, establishing that kind of mechanism, under the aegis of the Council of Europe and similar to the regrettably underused 1968 European Convention on Information on Foreign Law⁹¹ might be considered an appropriate way forward to redress the forum courts’ jurisdictional limits with regard to constitutional issues.

Footnotes

1 HD Sonnenberger in K Rebmann, FJ Säcker and R Rixecker (eds) Münchener Kommentar zum Bürgerlichen Gesetzbuch (4th ed CH Beck München 1998) Einl.IPR margin 196: here, it seems indisputable that at least the EC forum courts have jurisdiction to examine primary legislation of another EC member state on its compatibility with EC law under the doctrine of supremacy of EC law.

2 PB Carter ‘The Role of Public Policy in English Private International Law’ (1993) 93 ICLQ 1, 3; L Collins (ed) Dicey and Morris on The Conflict of Laws (13^th edn Sweet & Maxwell London 2000) 5-004.

3 Nouva Safim S.p.A. v The Sakura Bank Ltd [1998] CLC 306 (QBD).

4 M Wolff Das Internationale Privatrecht Deutschlands (3rd ed Springer Berlin 1954) 87; W Leisner‚Verfassungswidrigkeit ausländischer Rechtsnormen’ [1957] BayVBl 108, 109; KH Neumayer ‚Fremdes Recht und Normenkontrolle’ (1958) 23 RabelsZ 573; M Ferid Wechselbeziehungen zwischen Verfassungsrecht und Kollisionsnormen in E v Caemmerer, A Nikisch and K Zweigert (eds) Vom deutschen zum europäischen Recht – Festschrift für Hans Dölle vol II 119, 146-147; K Firsching and B v Hoffmann Internationales Privatrecht (5th ed CH Beck München 1997) 101; J Kropholler Internationales Privatrecht (4th edn Mohr (Siebeck) Tübingen 2001) 209; HD Sonnenberger in K Rebmann, FJ Säcker and R Rixecker (eds) Münchener Kommentar zum Bürgerlichen Gesetzbuch (4th ed CH Beck München 1998) Einl.IPR margin 307-308; M Wolff Private International Law (2^nd ed Clarendon Press Oxford 1950) 214; FA Mann ‘The Sacrosanctity of the Foreign Act of State’ (1943) 59 LQR 155, 155-157; K Lipstein ‘Proof of Foreign Law: Scrutiny of its Constitutionality and Validity’ (1965) 42 BYIL 265, 265; L Collins (ed) Dicey and Morris on The Conflict of Laws (13^th edn Sweet & Maxwell London 2000) 9-017.

5 JHC Morris ‘Review of Private International Law 2nd ed 1950 by M Wolff’ (1952) 68 LQR 125, 127.

6 Sir O Kahn-Freund Constitutional Review of Foreign Law? in W Flume (ed) Internationales Recht und Wirtschaftsordnung - Festschrift für F A Mann zum 70. Geburtstag am 11. August 1977 (CH Beck München 1977) 207 211-213; Sir O Kahn-Freund General Problems of Private International Law (Sijthoff Alphen aan den Rijn 1976) 294-295.

7 Buck v A-G [1965] Ch 745 (CA); Manuel v A-G [1982] 3 All ER 786 (ChD); Dubai Bank Ltd v Galadari (No. 5) The Times, 26 June 1990 (ChD).

8 Nouva Safim S.p.A. v The Sakura Bank Ltd [1998] CLC 306 (QBD).

9 [1968/69] IPRspr No 113.

10 [1969] MDR 486.

11TC Hartley ‘Pleading and Proof of Foreign Law: The Major European Systems Compared’ (1996) 45 ICLQ 271, 272, 292; I Zajtay in R David (ed) International Encyclopedia of Comparative Law (Mohr (Siebeck) Tübingen 1972) vol 3 ch 14 8; particularly striking: Macmillan Inc v Bishopsgate Investment Trust plc (No. 3) [1996] 1 WLR 387 (CA).

12 K Firsching and B v Hoffmann Internationales Privatrecht (5th ed CH Beck München 1997) 99; R Fentiman Foreign Law in English Courts: Pleading, Proof and Choice of Law (OUP Oxford 1998) 28.

13 A.S. Tallinna Laevauhisus v Estonian State S.S. Line (1947) Ll L R 99, 107 (CA); L Collins (ed) Dicey and Morris on The Conflict of Laws (13^th edn Sweet & Maxwell London 2000) 9-001; R Fentiman ‘Foreign Law in English Courts’ (1992) 108 LQR 142, 145.

14 G Kegel in W Siebert (ed) Soergel – Bürgerliches Gesetzbuch (12th edn Kohlhammer Stuttgart 1996) vol 10 Vor Art 3 margin 179.

15 W Goldschmidt Die philosophischen Grundlagen des Internationalen Privatrechts in E v Caemmerer et al (eds) Festschrift für Martin Wolff – Beiträge zum Zivilrecht und Internationalen Privatrecht (Mohr (Siebeck) Tübingen 1952) 213; A Briggs Conflict of Laws (OUP Oxford 2002) 15.

16 I Zajtay in R David (ed) International Encyclopedia of Comparative Law (Mohr (Siebeck) Tübingen 1972) vol 3 ch 14 27-28; K Firsching and B v Hoffmann Internationales Privatrecht (5th ed CH Beck München 1997) 101; Dicey & Morris 4-002; A Briggs Conflict of Laws (OUP Oxford 2002) 7, 15-16

17 Macmillan Inc v Bishopsgate Investment Trust plc (No. 3) [1996] 1 WLR 387 (CA).

18 K Lipstein ‘Proof of Foreign Law: Scrutiny of its Constitutionality and Validity’ (1965) 42 BYIL 265, 265, Dicey & Morris 9-017 note 74; HD Sonnenberger in K Rebmann, FJ Säcker and R Rixecker (eds) Münchener Kommentar zum Bürgerlichen Gesetzbuch (4th ed CH Beck München 1998) Einl.IPR margin 307-308.

19 Sir O Kahn-Freund General Problems of Private International Law (Sijthoff Alphen aan den Rijn 1976) 305.

20 KH Neumayer ‚Fremdes Recht und Normenkontrolle’ (1958) 23 RabelsZ 573.

21 European Treaty Series 074

22 Dubai Bank Ltd v Galadari (No. 5) The Times, 26 June 1990 (ChD).

23 Rahimtoola v Nizam of Hyderabad [1958] AC 379 (HL).

24 Buck v A-G [1965] Ch 745 (CA); Manuel v A-G [1982] 3 All ER 786 (ChD); Dubai Bank Ltd v Galadari (No. 5) The Times, 26 June 1990 (ChD).

25 Nouva Safim S.p.A. v The Sakura Bank Ltd [1998] CLC 306 (QBD).

26 Buttes Gas and Oil Co. v Hammer [1982] AC 888, 932 (HL, Lord Wilberforce); FA Mann ‘The Sacrosanctity of the Foreign Act of State’ (1943) 59 LQR 59, 44; I Brownlie Principles of Public International Law (5th edn Clarendon Press Oxford 1998) 509; K Ipsen Völkerrecht (4th edn CH Beck München 1999) 330; similarly: BGH [1993] NJW 141, 142; BVerfG 92 BVerfGE 277, 320-321;.

27 Buttes Gas and Oil Co. v Hammer [1982] AC 888 (HL).

28 Dicey & Morris 5-039.

29 Duke of Brunswick v King of Hanover [1848] 2 House of Lords Cases 1, 9 ER 993.

30 [1982] AC 888 (HL).

31 [1965] Ch 745 (CA).

32 [1982] 3 All ER 786 (ChD).

33 The Times, 26 June 1990 (ChD).

34 Dicey & Morris 5-041.

35 [1998] CLC 306 (QBD).

36 K Ipsen Völkerrecht (4th edn CH Beck München 1999) 331; BGH [1993] NJW 141, 142.

37 Sir O Kahn-Freund Constitutional Review of Foreign Law? in W Flume (ed) Internationales Recht und Wirtschaftsordnung - Festschrift für F A Mann zum 70. Geburtstag am 11. August 1977 (CH Beck München 1977) 207 211-213.

38 K Lipstein ‘Proof of Foreign Law: Scrutiny of its Constitutionality and Validity’ (1965) 42 BYIL 265, 265; Dicey & Morris 9-017 note 74; HD Sonnenberger in K Rebmann, FJ Säcker and R Rixecker (eds) Münchener Kommentar zum Bürgerlichen Gesetzbuch (4th ed CH Beck München 1998) Einl.IPR margin 308, OLG Hamm [1968/69] IPRspr No 113.

39 OLG Hamm [1968/69] IPRspr No 113; M Wolff Das Internationale Privatrecht Deutschlands (3rd ed Springer Berlin 1954) 87; W Leisner Verfassungswidrigkeit ausländischer Rechtsnormen’ [1957] BayVBl 108, 109; HD Sonnenberger in K Rebmann, FJ Säcker and R Rixecker (eds) Münchener Kommentar zum Bürgerlichen Gesetzbuch (4th ed CH Beck München 1998) Einl.IPR margin 307; K Firsching and B v Hoffmann Internationales Privatrecht (5th ed CH Beck München 1997) 101, J Kropholler Internationales Privatrecht (4th edn Mohr (Siebeck) Tübingen 2001) 209.

40 Dicey & Morris 9-017 note 74.

41 Nouva Safim S.p.A. v The Sakura Bank Ltd [1998] CLC 306 (QBD).

42 Dicey & Morris 7R-001; R Geimer Internationales Zivilprozessrecht (3rd edn Verlag Dr Otto Schmidt Köln 1997) 107.

43 M Cappelletti Judicial Review in the Contemporary World (The Bobbs-Merrill Co Indianapolis 1971) 46.

44 BVerfG 2 BVerfGE 124, 128; T Maunz in T Maunz, G Dürig, R Herzog and R Scholz Grundgesetz Kommentar (38th supplement CH Beck München 2001) vol V Art 100 margin 12.

45 Dicey & Morris 9-017 note 74.

46 S de Smith and R Brazier Constitutional and Administrative Law (8^th edn Penguin London 1998) 90-93.

47 [1974] AC 765.

48 S de Smith and R Brazier Constitutional and Administrative Law (8^th edn Penguin London 1998) 92.

49 G Hoon (Parliamentary Secretary, Lord Chancellor’s Department) Hansard (Commons) vol 313 col 457 (3 June 1998).

50 Lord Lester of Herne Hill and D Pannick Human Rights Law and Practice (Butterworths London 1999) 27; similarly: D McGoldrick ‘The United Kingdom’s Human Rights Act 1998 in Theory and Practice’ (2001) 50 ICLQ 901, 920.

51 J Straw, Hansard (Commons) vol 306 col 772 (16 February 1998).

52 R v Secretary of State for the Home Department, ex p Simms and anr [2000] 2 AC 115, 131 (HL, Lord Hoffmann).

53 R Clayton and H Tomlinson The Law of Human Rights (OUP Oxford 2000) 179; N Burn ‘Remedies under the Human Rights Act 1998 - Part I’ (2001) 151 NLJ 94.

54 Para 25A.9 of the Rules of the Court of Session; para 11 of the Practice Direction on Devolution Issues in the English Courts.

55 Hinted at by Sir W Wade The United Kingdom’s Bill of Rights in University of Cambridge Centre for Public Law Constitutional Reform in the UK: Practice and Principles (Hart Publishing Oxford 1998) 61, 67.

56 Fentiman Foreign Law in English Courts: Pleading, Proof and Choice of Law (OUP Oxford 1998) 28-29, 45; Murduroglu Ltd v T C Ziraat Bankasi [1986] 1 QB 1225 (CA); vice versa: E.I. du Pont de Nemours v Agnew [1987] 2 Lloyd’s Rep 585 (CA).

57 [1998] CLC 306 (QBD).

58 Sir O Kahn-Freund Constitutional Review of Foreign Law? in W Flume (ed) Internationales Recht und Wirtschaftsordnung - Festschrift für F A Mann zum 70. Geburtstag am 11. August 1977 (CH Beck München 1977) 207 209.

59 Dicey & Morris 9-001, 9-013-9-020.

60 [1985] 1 WLR 1050, 1057.

61 18 BVerfGE 241, 253; T Maunz in T Maunz, G Dürig, R Herzog and R Scholz Grundgesetz Kommentar (38th supplement CH Beck München 2001) vol V Art 101 margin 28.

62 BVerfG 2 BVerfGE 213, 217.

63 22 BVerfGE 293, 298.

64 W Leisner ‚Verfassungswidrigkeit ausländischer Rechtsnormen’ [1957] BayVBl 108, 110; HD Sonnenberger in K Rebmann, FJ Säcker and R Rixecker (eds) Münchener Kommentar zum Bürgerlichen Gesetzbuch (4th ed CH Beck München 1998) Einl.IPR margin 307.

65 BayObLG [1968] MDR 486; OLG Hamm [1968/69] IPRspr No 113.

66 Eg Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142 (ChD).

67 Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547, 633 (HL, Lord Wilberforce).

68 KH Neumayer ‚Fremdes Recht und Normenkontrolle’ (1958) 23 RabelsZ 573, 597.

69 Spiliada Maritime Corp. v Cansulex [1987] AC 460 (HL).

70 As summed up in Dicey & Morris 12R-001.

71 E.I. du Pont de Nemours v Agnew [1987] 2 Lloyd’s Rep 585; similarly: Mitsubishi Corp. v Alafouzos [1988] 1 Lloyd’s Rep 191 (QBD).

72 Dicey & Morris 12-021, 12-024; R Fentiman Foreign Law in English Courts: Pleading, Proof and Choice of Law (OUP Oxford 1998) 28-29, 45.

73 [1987] 2 Lloyd’s Rep 585.

74 Nouva Safim-S.p.A. v The Sakura Bank Ltd [1998] CLC 306 (QBD).

75 Dicey & Morris 12-079.

76 [1999] 2 Lloyd’s Rep 337.

77JJ Fawcett General Report in JJ Fawcett (ed) Declining Jurisdiction in Private International Law: Reports to the XIVth Congress of the International Academy of Comparative Law, Athens, August 1994 (Clarendon Press Oxford 1995) 1, 21.

78JJ Fawcett General Report in JJ Fawcett (ed) Declining Jurisdiction in Private International Law: Reports to the XIVth Congress of the International Academy of Comparative Law, Athens, August 1994 (Clarendon Press Oxford 1995) 1, 10.

79 HD Jarass in HD Jarass and B Pieroth Grundgesetz für die Bundesrepublik Deutschland (5th edn CH Beck München 2000) Art 20 margin 89.

80 R Geimer Internationales Zivilprozessrecht (3rd edn Verlag Dr Otto Schmidt Köln 1997) 357; R Patzina in G Lüke and A Walchshöfer (eds) MünchenerKommentar zur Zivilprozessordung (CH Beck München) vol 1 § 12 margin 100-101.

81 L Raape and F Sturm Internationales Privatrecht – Band I: Allgemeine Lehren (6th edn Verlag Franz Vahlen München 1977) 199.

82 M Wolff Private International Law (2^nd ed Clarendon Press Oxford 1950) 171; Sir O Kahn-Freund General Problems of Private International Law (Sijthoff Alphen aan den Rijn 1976) 282; Dicey & Morris 5-005/6; A Briggs Conflict of Laws (OUP Oxford 2002) 44-45; G Kegel and K Schurig Internationales Privatrecht (8th edn CH Beck München 2000) 462; BGH 35 BGHZ 329.

83 Eg when faced with a Nazi decree stripping Jews of their German nationality: Oppenheimer v Cattermole [1976] AC 249 (HL).

84 Dicey & Morris 5-005; A Briggs Conflict of Laws (OUP Oxford 2002) 44-45.

85 W Leisner ‚Verfassungswidrigkeit ausländischer Rechtsnormen’ [1957] BayVBl 108, 109.

86 [2001] ECJ-I 1935.

87 HD Sonnenberger in K Rebmann, FJ Säcker and R Rixecker (eds) Münchener Kommentar zum Bürgerlichen Gesetzbuch (4th ed CH Beck München 1998) Einl.IPR margin 315; J Kropholler Internationales Privatrecht (4th edn Mohr (Siebeck) Tübingen 2001) 247; Coester-Waltjen in D Coester-Waltjen, H Kronke and J Kokott (eds) Die Wirkungskraft der Grundrechte bei Fällen mit Auslandsbezug Berichte der deutschen Gesellschaft für Völkerrecht vol 38 (C F Müller Heidelberg 1998) 9, 20; A Briggs Conflict of Laws (OUP Oxford 2002) 44-45.

88 BGH 63 BGHZ 219, 225-227; G Kegel in W Siebert (ed) Soergel – Bürgerliches Gesetzbuch (12th edn Kohlhammer Stuttgart 1996) vol 10 Art 6 margin 27; Sir O Kahn-Freund General Problems of Private International Law (Sijthoff Alphen aan den Rijn 1976) 282-283; A Briggs Conflict of Laws (OUP Oxford 2002) 45.

89 J Kokott in D Coester-Waltjen, H Kronke and J Kokott Die Wirkungskraft der Grundrechte bei Fällen mit Auslandsbezug Berichte der deutschen Gesellschaft für Völkerrecht vol 38 (CF Müller Heidelberg 1998) 71, 93.

90 Coester-Waltjen in D Coester-Waltjen, H Kronke and J Kokott (eds) Die Wirkungskraft der Grundrechte bei Fällen mit Auslandsbezug Berichte der deutschen Gesellschaft für Völkerrecht vol 38 (C F Müller Heidelberg 1998) 9, 28.

91 European Treaties Series 062.

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