Chapter 8: Germany
Restricted access

The exception of public policy (ordre public) is employed quite defensively and restrictively by German courts. Prominent examples where public policy shields against unwarranted results reached by foreign law, in recent times mainly stem from Islamic family or succession law. It is heavily influenced by German constitutional law. Public policy has not advanced from shield to sword yet, at least not general public policy. Its main consequence is doing away with the result reached by application of the applicable foreign law. This is defensively, and negative. It is directed against something, and does not actively promote and enforce a certain result. It negates a certain result, but does on its face not put forward a certain alternative result positively. This is evident if the second-tier consequence is to apply the applicable foreign law minus some elements, which lead to the result incriminated in the concrete case. This is definitely not actively promoting German law. In recent times, the main development relating to public policy has been opening up the concept to European influences and Europeanizing it.

You are not authenticated to view the full text of this chapter or article.

Access options

Get access to the full article by using one of the access options below.

Other access options

Redeem Token

Institutional Login

Log in with Open Athens, Shibboleth, or your institutional credentials

Login via Institutional Access

Personal login

Log in with your Elgar Online account

Login with your Elgar account