Party Autonomy in International Property Law - Peace Palace Library

5.
Party Autonomy in International
Property Law: A German Perspective
Jan von Hein *
5.1. Introduction
An essay on party autonomy in international property law from a German
perspective could be very short. A German lawyer who is asked whether
black-letter German private international law allows parties to choose
the law applicable to rights in property would, without hesitation, answer
‘No’. And this answer would be correct. Yet, on closer inspection, things
are more complicated than they first appear. In recent decades, German
private international law has witnessed three stages of codification: In
1986, the original version of the German Introductory Act to the Civil
Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch, commonly abbreviated
as EGBGB), which had been in force since 1900, 1 underwent a
comprehensive reform. 2 However, this revision for the most part was concerned
with eliminating violations of modern notions of gender equality
in international family law and with incorporating into German law the
Rome convention on the law applicable to contractual obligations of
1980 3 – today replaced by the Rome I Regulation. 4 Although a draft dealing
with the law applicable to non-contractual obligations and to rights
in property had already been elaborated in the Federal Ministry of Justice
in 1984, 5 those issues were dropped in the course of further legislation.
*
Professor of German Civil Law, Private International Law and Comparative
Law, University of Trier (Germany).
1
Reichsgesetzblatt 1896, p. 604.
2
Bundesgesetzblatt (BGBl.) 1986 part I p. 1142.
3
Convention on the Law Applicable to Contractual Obligations of 19 June
1980 (Consolidated Version), O.J. 1998 C 27 / 34.
4
Regulation (EC) No. 593 / 2008 of the European Parliament and of the Council
of 17 June 2008 on the law applicable to contractual obligations (Rome I),
O.J. 2008 L 177 / 6.
5
Reprinted as an annex in Kropholler, Internationales Privatrecht, 1 st ed.
1990.
103
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