Research | Projects | Accidental Discrimination in the Conflict of Laws

Accidental Discrimination in the Conflict of Laws


Prof Gerhard Dannemann


Cases connected to different legal systems can get a rough ride, simply because applicable rules are not dovetailed to each other. This is frequently the case if one of the systems involved belongs to the common law and the other to the civil law world. In combination, they can produce results which are not intended by either system involved – insufficient maintenance or benefits, heirs receiving more or less than they should, criminals punished too harshly, marriages which cannot be dissolved, cases which no court wants to hear. A research project devoted to this topic was completed during 2003. The results were published in 2004 as a monograph entitled: Die ungewollte Diskriminierung in der internationalen Rechtsanwendung. Zur Anwendung, Berücksichtigung und Anpassung von Normen aus unterschiedlichen Rechtsordnungen. In this book, the author argues that courts are empowered to modify or ignore applicable rules in order to avoid such accidental discrimination, to the degree that, under higher ranking principles of equality of treatment, legislators would be prevented from deliberately discriminating in international cases. On the other hand, criticism will be directed against Continental doctrine and court practice which seeks to give the same far-reaching powers to courts in other complex international situations. As a backdrop to the issue of accidental discrimination, this project also deals with the following topics: (1) Public International Law influences on Conflict of Laws, (2) why and how norms which are not applicable according to conflict rules may nevertheless influence the outcome of a case, and (3) the international sphere of application of domestic, European and international human rights provisions. A summary of the findings of this project was published as: Accidental Discrimination in the Conflict of Laws: Applying, Considering, and Adjusting Rules From Different Jurisdictions, in: Yearbook of Private International Law, Vol X (2008), 113-134.