Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Liechtenstein

Statute of 19 September 1996 on Private International Law1

I. General Provisions

Art. 1 Principle of Private International Law

  • Factual situations with foreign contacts shall be judged, in regard to private law, according to the legal order designated by this Statute or another legal provision (choice-of-law rule).

  • In the absence of a choice-of-law rule the legal order having the strongest connection with the factual situation shall be determinative.

Art. 2 Determination of Choice of Law Prerequisites

The factual and legal prerequisites determinative for the choice of a particular legal order shall be determined ex officio, unless procedural rules require that the assertions of the parties be accepted as true in those subject matters for which a contractual choice of law is possible (Arts. 20, 29 para. 3, Art. 39 para. 1).

Art. 3 Application of Foreign Law

If foreign law is determinative, it shall be applied ex officio and as it would be in its original jurisdiction.

Art. 4 Ascertainment of Foreign Law

  • The foreign law shall be ascertained ex officio. Permissible aids therefor are, among others, the participation of the persons involved, information from the Government, and expert opinions.

  • If despite intensive efforts the foreign law cannot be ascertained within a reasonable time, Liechtenstein law shall be applied.

Art. 5 Reference to Substantive Law; Renvoi

  • Where foreign law is determinative, its substantive rules shall apply (legal provisions except for choice-of-law rules). This does not apply where the choice-of-law rules of the foreign law designate Liechtenstein law as determinative; in this case the substantive rules of Liechtenstein law shall apply (renvoi).

  • p. 3459If a foreign legal order consists of several partial legal orders, that partial legal order shall be applied to which the rules existing in the foreign legal order refer. In the absence of such rules, that partial legal order shall be determinative to which the strongest connection exists.

Art. 6 Public Policy Exclusion

A provision of foreign law shall not be applied when its application would lead to a result irreconcilable with the basic tenets of the Liechtenstein legal order. In its place, if necessary, the corresponding provision of Liechtenstein law shall be applied.

Art. 7 Subsequent Occurrences and Applicable Law

A subsequent change in the prerequisites determinative for the choice of a particular legal order has no effects upon already completed facts.

Art. 8 Form

The form of a legal act shall be judged according to the same law as the legal act itself; sufficient, however, shall be the adherence to the form requirements of the state where the legal act is carried out.

Art. 9 Domicile and Habitual Residence

In the meaning of this Statute, a natural person is:

  • domiciled at that location where the person resides with the intent of permanently remaining;

  • is habitually resident at that location where the person has been living for an extended period of time regardless of whether this period of time is limited from the outset.

Art. 10 Personal Status Law of a Natural Person

  • The personal status law of a natural person shall be the law of the state to which the person belongs. If in addition to a foreign citizenship a person also has the citizenship of Liechtenstein, the latter shall be determinative. For other persons of multiple citizenship, the citizenship of that state shall be determinative to which the strongest connection exists.

  • If a person is stateless or if his citizenship cannot be established, his personal status law shall be the law of the state in which he has his habitual residence.

  • The personal status law of a person who is a refugee within the meaning of the international agreements effective for Liechtenstein, or whose relationship to his home state is severed for comparably serious reasons, shall be the law of the state in which the person has his domicile, and in its absence, his habitual residence; reference by that law to the law of the home state shall be disregarded.

Art. 11 Contractual Choice of Law

  • In case of doubt, a contractual choice of law by the parties (Arts. 20, 29 para. 3 and Art. 39 para. 1) does not incorporate the choice-of-law rules of the chosen law.

  • A contractual choice of law first made during a pending proceeding shall be taken into consideration only if made expressly..

  • p. 3460The legal position of third parties shall not be impaired through a subsequent contractual choice of law.

II. Law of Persons

Art. 12 Legal Capacity and Capacity to Act

  • A person’s legal capacity and his capacity to act shall be judged according to his personal status law.

  • A person who concludes a legal transaction despite lacking capacity to act according to his personal status law cannot invoke his lack of capacity when he would have capacity to act according to the law of the state in which he has concluded the legal transaction unless the other party was or should have been aware of his incapacity. This provision does not apply to legal transactions in respect of family and succession law matters or to transactions that dispose over either a plot of land located in another state or a right of an equal nature.

Art. 13 Responsibility for Torts

A natural person’s responsibility for a tort shall be judged according to the law of the state in which the conduct giving rise to the damage occurred.

Art. 14 Name

  • The use of the name of a natural person shall be judged according to the personal status law applicable to this person, whatever the ground of acquisition of the name.

  • The protection of the name of a natural person shall be judged according to the law of the state where the act of violation occurs.

Art. 15 Declaration of Disappearance

A declaration of disappearance by a Liechtenstein court, and its effects, shall be judged according to Lichtenstein law.

Art. 16 Appointment of a Guardian for Disabled Persons, Power of Attorney, Advance Health Care Directive

  • The appointment of a guardian for a mentally ill or mentally disabled person by a Liechtenstein court, and its effects, shall be judged according to Liechtenstein law.

  • The prerequisites and effects of an advance health care directive shall be judged according to Liechtenstein law. Art. 8 shall not be prejudiced hereby.

III. Family Law A. Marriage Law

Art. 17 Form of Marriage Celebration

  • The form of a marriage celebration within the domestic territory shall be judged according to the domestic provisions on form.

  • p. 3461The form of a marriage celebration abroad shall be judged according to the personal status law of each of the betrothed; sufficient, however, shall be compliance with the provisions on form of the place of celebration.

Art. 18 Prerequisites for Entry into Marriage

  • The prerequisites for entry into marriage as well as for nullity of the marriage shall be judged for each of the betrothed or spouses according to his or her personal status law.

  • If, through a decision effective for the jurisdiction of Liechtenstein law, a marriage was annulled, dissolved, or declared nonexistent, a new entry into marriage may not be prohibited, nor may a new marriage be declared annulled solely because the decision is not recognized according to the personal status law of one or both of the betrothed or spouses. This applies by analogy in the case of a declaration of disappearance.

Art. 19 Personal Legal Effects of Marriage

  • The personal legal effects of a marriage shall be judged according to the law of the state in which both spouses have their habitual residence, and, in its absence, according to the law of the state in which both spouses had their last habitual residence, provided one of them has retained it.

  • If a marriage has not become effective according to the law designated in para. 1, but has become effective for the jurisdiction of Liechtenstein law, the personal legal effects shall be judged according to Liechtenstein law.

Art. 20 Marital Property Regime

  • Marital property rights shall be judged according to the law selected by the parties in writing.

  • The spouses may choose between the law of the state in which they are both habitually resident, or in which they will be habitually resident after entry into marriage, and one of the national laws of the two spouses.

  • In the absence of such a contractual choice of law, marital property rights shall be judged according to the law governing the personal legal effects of the marriage at the time of entry into marriage.

Art. 21 Divorce

  • The prerequisites and effects of legal separation and divorce of a marriage shall be judged according to the law governing the personal legal effects of the marriage at the time of the legal separation or the divorce.

  • If according to that law a legal separation or dissolution of the marriage is not possible on the basis of the alleged facts, or if none of the connecting factors of Art. 19 exist, the legal separation or the divorce shall be judged according to the personal status law of the plaintiff at the time of the divorce.

  • Liechtenstein courts shall apply Liechtenstein law also when only one of the spouses is a national citizen of Liechtenstein.

A.bis Law of registered partnership

Art. 21a

  • The form of a partnership registered within the domestic territory shall be judged according to the domestic provisions on form.

  • The form of a partnership registered abroad shall be judged according to the provisions on form of the location of registration.p. 3462

Art. 21b Prerequisites of Registration of Partnership

The prerequisites for a registered partnership and its nullity shall be judged according to the law of the state in which it was established.

Art. 21c Personal Legal Effects of Registered Partnership

The personal legal effects of a registered partnership shall be judged

  • according to the law of the state in which the registered partners have their common habitual residence, and, in its absence, according to the law of the state in which they had their last habitual residence provided one of them has retained it;

  • otherwise according to Liechtenstein law; this law is also applicable to the extent the determinative law under lit. a) does not govern the legal effects of a registered partnership.

Art. 21d Property Regime of Registered Partnerships

  • The property law of a registered partnership shall be judged according to the law selected by the parties in writing.

  • The registered partners may choose between the law of the state in which they are both habitually resident, or in which they will be habitually resident after registration of the partnership, and one of the national laws of the two spouses.

  • In the absence of such a contractual choice of law, the property rightsshall be judged according to the law governing the personal legal effects of the partnership at the time of registration of the partnership.

Art. 21e Judicial Dissolution of Registered Partnership

  • The prerequisites and effects of a judicial dissolution of a registered partnership shall be judged

    • according to the law of the state in which at the time of the dissolution the registered partners have their common habitual residence, and, in its absence, according to the law of the state in which they had their last habitual residence provided one of them has retained it;

    • according to the personal status law of the petitioning registered partner at the time of the dissolution if the prerequisites for the application of the law designated in lit a) are not satisfied or if according to this law the registered partnership cannot be dissolved on the basis of the alleged facts;

    • otherwise according to Liechtenstein law; this law is also applicable if, on the basis of the alleged facts, the registered partnership cannot be dissolved under the determinative law provided by lit. b).

  • Liechtenstein courts shall apply Liechtenstein law also when only one of the registered partners is a national citizen of Lichtenstein.

B. Law of Children and Parents

Art. 22 A Child’s Affiliation to the Husband of the Mother

The prerequisites for a child’s affiliation to the husband of the mother and for the contestation thereof shall be judged according to the personal status law which the spouses had at the time of the birth of the child, or, if the marriage was dissolved prior to birth, that which the spouses had at the time of dissolution. In the case of different personal status laws of the spouses, the personal status law of the child at the time of birth is determinative.p. 3463

Art. 23 Legitimation by Subsequent Marriage

The prerequisites for the legitimation of an illegitimate child by subsequent marriage shall be judged according to the personal status law of the parents. In the case of different personal status laws of the parents, the one more favorable to legitimation shall be determinative.

(Art 24 repealed)

Art. 25 Effects of Legitimacy and Legitimation

The effects of legitimacy and legitimation of a child shall be judged according to the law of the state where the child is habitually resident.

Art. 26 Affiliation of a Child whose Parents are not Married, and its Effects

  • The prerequisites for the establishment and acknowledgement of the paternity of a child whose parents are not married to each other shall be judged according to the child’s personal status law at the time of birth. However, they shall be judged according to a later personal status law of the child if establishment or acknowledgement is permissible according to that law, but not according to the personal status law at the time of birth. The law according to which paternity was established or acknowledged shall also be determinative for its contestation.

  • The effects of the affiliation of a child whose parents are not married to each other shall be judged according to the law of the state in which the child is habitually resident.

  • The claims arising from pregnancy and delivery which the mother has against the father of the child to whom she is not married shall be judged according to the law of the state in which the mother has her habitual residence.

Art. 27 Adoption

  • The prerequisites for adoption and for the termination of an adoptive relationship shall be judged according to the personal status law of each of the adoptive parents. If the child’s personal status law requires the consent of the child or a third person with whom the child has a family law relationship, that law shall also be determinative in this respect.

  • The effects of adoption shall be judged according to law of the state in which adoptive parent is habitually resident; in the case of adoption by spouses according to the law governing the personal legal effects of the marriage; and after the death of one of the spouses according to the law of the state in which the other spouse is habitually resident.

C. Guardianship and Curatorship

Art. 28 Institution and Effects

The prerequisites for the institution of a guardianship or curatorship by a Liechtenstein court, as well as its effects, shall be judged according to Liechtenstein law.

IV. Inheritance Law

Art. 29 Succession upon Death

  • Succession upon death shall be judged according to the personal status law of the decedent at the time of his death.

  • If a probate proceeding is carried out by a Liechtenstein court, the succession upon death shall, subject to paras. 3 and 4, be judged according to Liechtenstein law.

  • p. 3464A foreign decedent may by disposition mortis causa or inheritance contract subject his succession to one of his national laws or to the law of the state of his last habitual residence.

  • A domestic decedent domiciled abroad may by disposition mortis causa or inheritance contract subject his succession to one of national laws or to the law of the state of his last habitual residence.

  • Whether a person who has received a reduced compulsory portion can assert rights against third parties who received assets from the decedent inter vivosshall be judged according to the law of the state governing the succession. The assertion of such rights is, additionally, permissible only when allowed by the law determinative for the process of acquisition.

Art. 30 Validity of a Disposition Mortis Causa

  • The testamentary capacity and the other requirements for the validity of a disposition mortis causa, an inheritance contract, or a contract renouncing the right to inherit, are fulfilled if the conditions of validity under one of the following laws are met:

    • one of the decedent’s national laws at the time of the legal act or the decedent’s death death;

    • the law of the state in which the decedent was habitually resident at the time of the legal act or his death death;

    • Liechtenstein law where the probate proceeding is carried out by a Liechtenstein court.

  • For the renunciation or cancellation of these legal acts, para. 1 applies by analogy.

V. Law of Property A. Kinds of Property

Art. 31 Principle

The law of the place where the thing is located shall determine whether it is deemed movable or immovable.

B. Immovable Property

Art. 32 Material Law

Property rights in immovables, including possession, shall be judged according to the law of the place where the thing is located.

Art. 33 Form

  • Property rights in immovables, including possession and obligations related to such rights, must be in the form prescribed by the law of the place where the thing is located.

  • Notarial recording and official certification will be recognized if they comply with the law of the place where the contract was concluded.

C. Movable Property

Art. 34 Acquisition and Loss in General

  • Acquisition and loss of property rights in a movable thing, including possession, shall be judged according to the law of the place in which the thing is located at the time of completion of the factual situation underlying acquisition or loss.

  • Changes of location which were carried out with the manifest intention of circumventing the law shall be irrelevant.p. 3465

Art. 35 Acquisitive Prescription

  • An acquisitive prescription occurs only upon satisfaction of the prerequisites according to the law of the place where the thing is located.

  • If acquisitive prescription has commenced under another law, the executed period of prescription will be credited proportionally against the required period of prescription.

Art. 36 Third Party Effects

In order to be effective against third parties acting in good faith, ownership and limited property rights must be publicized in conformity with the law prescribed for the protection of good faith dealings at the place where the thing is located.

Art. 37 Content

The content of property rights in movables, including possession, shall be judged according to the law of the place where the thing is located.

Art. 37a Book Entry Securities Collateral

  • The legal nature and the proprietary effects of book entry securities collateral (Art. 2 para. 1 lit. (g) of Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements) and the acquisition of proprietary rights thereto shall be judged by the domestic law of the state in which the relevant account (Art. 2 para. 1 lit. h of Directive 2002/47/EC) is maintained.

  • The law provided under para. 1 shall also judge,

    • whether a person’s title to or interest in such book entry securities collateral is overridden by or subordinated to a competing title or interest, or a good faith acquisition has occurred;

    • whether and which steps are required for the realisation of book entry securities collateral following the occurrence of an enforcement event (Art. 2 para. 1 lit. l of Directive 2002/47/EC).

VI. Rights in Intangible Property

Art. 38 Rights in Intangible Property

  • The creation, content, and extinction of rights in intangible property shall be judged according to the law of the state in which an act of use or violation occurs.

  • For intangible property rights arising from the activity of an employee within the framework of his employment relationship, the conflict rule governing the employment relationship (Art. 48) shall be determinative for the relationship between the employer and the employee.

  • If the employee carries out his work habitually in the Principality of Lichtenstein or if the hiring branch is located there, Lichtenstein law shall be applied. A contractual choice of law shall always be respected.

Art. 38a Copyright Contracts

  • Copyright contracts shall be judged according to the law applicable to obligations (Art. 39 f.); a contractual choice of law shall always be respected.

  • Contracts governing collective rights management in Liechtenstein are always subject to Lichtenstein law.p. 3466

VII. Law of Obligations

Art. 39 General Rules

  • Obligations shall be judged according to the law expressly or impliedly selected by the parties (Art. 11); if the circumstances reveal that the parties have assumed a particular legal order as determinative, this shall be equivalent to an implied selection.

  • To the extent that a contractual choice was not made or that it is to be disregarded according to this Statute, Arts. 40 through 53 shall be determinative.

Art. 40 Bilateral Contracts

Bilateral contracts creating what is chiefly a monetary debt on the part of one party shall be judged according to the law of the state in which the other party is habitually resident. If this party concludes the contract as an entrepreneur, the particular permanent business establishment involved in the execution of the contract shall be determinative instead of the habitual residence.

Art. 41 Unilateral contracts and legal transactions resulting in unilateral debts

Unilateral contracts and legal transactions resulting in unilateral debts shall be judged according to the law of the state in which the debtor is habitually resident or has, in the case of Art. 40, 2nd sentence, his permanent business establishment.

Art. 42 Banking Transactions and Insurance Contracts

  • Banking transactions shall be judged according to the law of the state in which the undertaking that does business under the Banking Statute has its particular permanent business establishment (Art. 40, 2nd sentence); for banking transactions between such undertakings the particular permanent business establishment of the bank employed to initiate the transaction shall be determinative.

  • For insurance contracts the Statute on International Insurance Contracts applies.

Art. 43 Stock Exchange Transactions and Similar Contracts

Stock exchange transactions and contracts concluded in markets and fairs shall be judged according to the law of the state in which the stock exchange or market is located or in which the fair is held.

Art. 44 Sales by Auction

Sales by auction shall be judged according to the law of the state in which the auction takes place.

Art. 45 Consumer Contracts

  • Contracts for which the law of the state in which one party is habitually resident grants this party special private law protection as a consumer shall be judged according to that law in those cases in which the contracts have resulted from an activity undertaken in that state and intended to result in such contracts by the entrepreneur or by persons employed by him for such purpose.

  • p. 3467A contractual choice of law to the detriment of the consumer shall be disregarded if it relates to mandatory provisions of the law designated in para. 1. If this is the law of a Member State of the EEA Agreement, then this includes in particular provisions setting forth rules for the protection of the consumer in the meaning of Annex XIX of the EEA Agreement.

  • Art. 9 of the Timeshare Statute remains reserved.

  • For insurance contracts the Statute on International Insurance Contracts applies.

Art. 46 Contracts Concerning the Use of Immovables

Contracts concerning the use of immovables or appurtenant structures shall be judged according to the law of the state in which the property is located.

Art. 47 Contracts Concerning Rights in Intangible Property

  • Contracts concerning rights in intangible property shall be judged according to the law of the state for which the right in the intangible property is transferred or granted. If the contract relates to several states, the law of that state shall be determinative in which the acquirer (licensee) has his abitual residence (his permanent business establishment, Art. 40, 2nd sentence).

  • For contracts concerning rights in intangible property arising from the activity of an employee within the framework of his employment relationship, the conflicts rule governing the employment relationship (Art. 48) shall be determinative.

Art. 48 Employment Contracts

  • Employment contracts shall be judged according to the law of the state in which the employee usually carries out his work. That law shall also remain determinative if the employee is sent to a place of work in another state.

  • If the employee usually carries out his work in more than one state, or if he has no habitual place of work, the law of the state shall be determinative in which the employer has his habitual residence (his permanent business establishment, Art. 40, 2nd sentence).

  • A contractual choice of law shall be taken into consideration only when it is made expressly. However, to the extent that mandatory provisions of the laws referred to in paras. 1 and 2 are involved, also an express contractual choice of law shall be disregarded, if it was made to the detriment of the employee.

Art. 49 Derivative Legal Transactions

A legal transaction the effects of which conceptually derive from an existing liability shall be judged according to the internal rules of the state governing the liability. This applies particularly to legal transactions aimed at giving security for or modifying a liability. Art. 42, para. 1 shall not be prejudiced hereby.

Art. 50 Unjust Enrichment

Unjust enrichment claims shall be judged according to the law of the state in which the unjust enrichment has occurred. However, if the unjust enrichment occurs in the course of a performance of an obligation based on a legal relationship, the internal rules of the state which apply to the legal obligation or relationship shall be determinative; this applies by analogy to the claim for compensation for an expenditure which another would have had to make.p. 3468

Art. 51 Assuming Control of the Affairs of Another

Assuming control of the affairs on another shall be judged according to the law of the state in which this was carried out; however, if it has an inherent connection with another legal obligation or relationship, Art. 49 applies by analogy.

Art. 52 Noncontractual Damage Claims

  • Noncontractual damage claims shall be judged according to the law of the state in which the damage-causing conduct occurred. However, if the persons involved have a stronger connection to the law of one and the same other state, that law shall be determinative.

  • Damages and other claims arising from unfair competition shall be judged according to the law of the state where the market affected by the competition is located.

Art. 53 Consensual Agency

  • The prerequisites and effects of a consensual agency as regards the relationship of the principal and agent to a third party shall be judged according to the law designated by the principal in a manner perceivable by the third party.

  • If the applicable law has not been designated, the law of the state shall be determinative in which the agent is to act according to such intent of the principal as is perceivable by the third party; if the agent has been appointed for several transactions, the law of the state shall be determinative in which the agent is to act regularly according to such intent of the principal as is perceivable by the third party.

  • If a proper choice of law cannot be made even by the application of para. 2, then the law of the state shall be determinative in which the agent acts.

Unofficial Translation by Michael Friedman, A.B. Economics (USC), J.D. (Berkeley), Max Planck Institute for Comparative and International Private Law, Hamburg (Germany), based on the translation of the Austrian Private International Law Act of 1978 by Edith Palmer printed in (1990) 28 Am.J.Comp.L. 197. The editors wish to thank the editors of the Am.J.Comp.L. for their permission to use the translation.