Expert opinions on foreign law in 21st-century litigation
In June of 2023, legal scholars and practitioners met at the Institute to discuss the process by which foreign law enters German court proceedings. The conference proceedings have now been assembled into a volume co-edited by Ralf Michaels, director at the Institute, and Jan Peter Schmidt, head of the Centre for the Application of Foreign Law.
It was founding director Ernst Rabel himself who first referred to the writing of expert opinions on foreign law for German courts as a noble duty of the Institute. But Rabel also complained of the drag on the Institute’s own scholarship as the demand for expert opinions continually grew. Although the overall burden today is distributed among multiple institutions and experts all over Germany, the upward trend has never abated. Since 2020, this type of knowledge transfer here at the Max Planck Institute has been centrally organized through the Centre for the Application of Foreign Law, headed by Jan Peter Schmidt. The centre has also undertaken to make the ascertainment and application of foreign law and the role of expert opinions in particular the object of scholarly analysis.
The procedure of seeking an expert opinion to ascertain foreign law raises many practical as well as theoretical issues, and somewhat surprisingly, there has been little systematic study of them so far. Some of these issues are as fundamental as delineating the respective roles of court and expert or the level of thoroughness the inquiry into foreign law demands. A more particular issue is how to formulate the evidentiary order in a way that is likely to get the most useful answer or the precise duties and compensation of experts.
The edited volume is readily available online as an open-access publication as well as in hard copy. It provides a first comprehensive look at how expert opinions on foreign law enter the German courtroom. It also gives a thoroughly documented critical assessment of the status quo and makes specific recommendations for tweaks or improvements to the existing procedures. Besides the conference proceedings, the edited volume also contains the full text of the Hamburg Guidelines for Ascertaining and Applying Foreign Law in German Litigation, which were a direct outcome of the conference, along with a detailed introduction.
Image: © Max Planck Institute for Comparative and International Private Law / Bastian Kurzynsky
