The Europeanisation Of German International Private Law

As one of the most developed countries in the world, Germany is the birthplace of western modern legal culture and holds a very important status in the world legal history. It was in the Introductory Act to the German Civil Code of 1896 that rules of international private law (IPL) were comprehensively and systematically codified at the first time, which influenced greatly the codifications of IPL in other countries.The society is going ahead, IPL going forward. With the deepgoing of economic integration in Europe, especially with the gradual expansion of legislative power of Europe Community in legal unification, IPL has been constantly unified in Europe Union (EU). Under this background German IPL is taking on a tendency of europeanisation, which means that the legislations of the Europe Community and the conventions of IPL on the union level plays a more and more important role in German IPL which is keeping coordinated and harmonized with the uniform IPL of EU. Since 1980s, a series of legislative measures habe been taken in Germany and Introductory Act to the German Civil Code, Introductory Act of Insurance Contract Law, Insolvency Law and Code of German Civil Procedure revised many times so that the europeanisation of German IPL can be kept.By means of historical analysis, comparative law, interpretation and deduction, based on the unification of IPL in EU, the author makes a systematical and deep study on the europeanisation of German IPL from the viewpoint of legal resources, especially of IPL legislation, mainly in the fields of international contract law, insolvency law and civil procedural law. The paper, which amounts to 240,000 Chinese words, consists of 6 chapters and a conclusion.The main factor which promotes europeanisation of German IPL is the unification of IPL in EU on which the 1st chapter focuses. The aim of Treaty of Establishing European Community is to establish internal market in Europe and to realize the free movement of goods, persons, capital and services among the member states. The realization of these purposes depends on a unified and harmonized legal circumstance. However, not only the substantive law rules but also the legislations of conflicts law ofthe member states are quite diversified. While the differences of legal systems among the member states can't be eliminated in a short time, the unification of IPL in EU is an effective way. With gradual expansion of legislation power of Europe Community in the field of legal unification, the unification of IPL works more and more efficiently, which leads to a uniform IPL on the union level. The Uniform IPL consists of various legal resources whose legal effects differ from each other in the relationship with the IPL of the member states. The unification of IPL in EU provides the union citizens a safe judicial environment on a higher level and supplies good judicial guarantees for the smooth function of the internal market. On the other hand, the strong East Wind of the unification of IPL in European Union forces German IPL towards europeanisation. The legislations of Europe Union are becoming more and more important in legal resources of German IPL.Chapters 2, 3 and 4 demonstrate separately the europeanisation of German international contract law in the fields of normal international obligation contract, international consumer contract and international insurance contract. Chapter 2 introduces firstly the drafting process and developing perspective of Rome Convention of 1980 and summarizes its main content and then expounds the process, methods and effects of transformation of Rome Convention in Germany. In order to codify uniform applicable law rules for contracts, the member states of the European Economic Community signed Rome Convention in 1980. As an outstanding achievement of unification of IPL in EU in early time, Rome Convention which has been implemented in various ways in all the member states holds an important status in the uniform IPL of EU. Through the Act of New Regulation of International Private Law of 1986 the main articles of Rome Convention were brought into Introductory Act to the German Civil Code which makes the coordination of German IPL with uniform IPL of EU come true.The Chapter 3 demonstrates the influence of uniform IPL in European Union upon German IPL from the perspective of conflict rules of international consumer contract. In order to protect the consumers, article 5 of Rome Convention provides a special conflict rule for consumer contract which can't meet the requirements ofconsumer protection from the society because of its limitations. In order to codify uniform rules of consumer protection in special fields, the Council of European Economic Community and European Union adopted a series of relevant Regulations and Directives which contain a lot of conflict rules. Article 5 of Rome Convention and the conflict rules in these Directives have been transformed as Articles 29 and 29a of Introductory Act to the German Civil Code, which perfects German conflict rules of international consumer contract and makes it coordinated with the legislations concerned of European Union on one hand and brands German conflict rules of international consumer contract with European Union laws on the other hand.The Chapter 4 deals with the europeanisation of German international insurance contract law. The insurance laws of European Union and its member states aim mainly at establishing a single insurance market and enlarging its own insurance market in European Community. Rome Convention of 1980 provides uniform applicable law rules of contracts which do not apply to the insurance contract covering the risks in member states of European Community (with the exception of reinsurance contract). In order to unify and coordinate the insurance legal system of the member states, and settle the collision of applicable law among the member states, the Council of European Community (Union) issued successively a set of Directives concerning life insurance and non-life insurance that contains some conflict rules for insurance contracts. They have been transformed as Articles 7-15 of the 2nd Chapter of Introductory Act of Insurance Contract Law that constitute, together with articles 27-37 of Introductory Act to the German Civil Code which transformed the relevant articles of Rome Convention, the legal sources of German international insurance contract law.The Chapter 5 demonstrates the europeanisation of German international insolvency law. Due to the economic globalization international insolvency becomes a new important field of international private law. Great efforts have been made to unify the legal systems of transnational insolvency in the world with few achievements. Through great efforts at several stages, the European Union has finally made some achievements in the unification of IPL concerning insolvency proceedings. As a result, the Council Regulation (EC) No. 1346/2000 on Insolvency Proceedings and 2Directives concerning the insolvency proceedings of financial and insurance enterprises have been adopted. To make the German international insolvency law keep pace with time, new Insolvency Law and Introductory Act of Insolvency Law were adopted in 1994 which were revised by the Act of New Regulation of International Insolvency Law of 14 March, 2003. By this means, the German legal system of international insolvency has been consistent with the proceeding Regulation and Directives and supplemented the Regulation, on the other hand, which makes German international insolvency law perfected and developed.The Chapter 6 deals with the europeanisation of German international civil procedural law in the aspects of international jurisdiction in civil and commercial matters, the recognition and enforcement of foreign court's decisions, extraterritorial services, the taking of evidence abroad and legal aid of expense in litigation. In the process of unification of IPL in European Union, the achievements of unification of international civil procedural rules are the most remarkable. Since the Amsterdam Treaty came into force in 1999, the Brussels Convention of 1968, the Convention on the Insolvency Proceedings of 1995, the EU Convention on Services of 1997 and the Brussels Convention II of 1998 have been changed into corresponding Regulations by the Council of European Union. What's more, the Council of European Union adopted the Council Regulation (EC) No. 1206/2001 on Cooperation between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters, Regulation Brussels Ila and Council Directive 2003/8/EC to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes. All these acts provide all member states except Denmark with uniform civil procedural rules and European civil procedural law communitarizated, which is the symbol of the coming of epoch in that European Community can legislate directly in judicial cooperation in civil matters. German legislative authority continuously revises formal laws or makes new laws to bring the Brussels Convention and relevant legislations of European Community into German legal system so that they can coordinate with each other. By this means, it makes the europeanisation of German international civil procedural rules come true.Based on the preceding chapters, the author concludes that the europeanisation of German IPL has the following characters: (1) the influence of EU law upon German IPL is extending constantly; (2) the fields concerned relate closely to the purpose of European Community Market; (3) variety of europeanisation methods; (4) the conflict and consistency between IPL of European Union and that of Germany. Meanwhile, the europeanisation of German IPL is also a process of seeking balance between unification and nationality. It is pointed out in the conclusion that with the enlargement of European Union and deepgoing of integration, European Union will change from a community of national states into a legal community. IPL of the member states will gradually come to uniformity and form new "European IPL". As for the development of German IPL, the europeanisation of its IPL will be the main melody.