Die Europäische Menschenrechtskonvention und das Privatrecht
Jahrgang 80 (2016) / Heft 4, S. 817-850 (34)
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Based on the concept of »positive obligations« of the State the European Court of Human Rights has developed a comprehensive case-law relevant for disputes falling under private law. National courts have to take into account not only the Court's jurisprudence, but also its innovative methods of interpretation. As a consequence, well-entrenched legal positions are being reconsidered. Prescription regulations are discussed as barriers to access to Court, general clauses are analysed as to their foreseeability, and State responsibility on the basis of the Convention can be seen to open up new avenues in tort law. The neutrality of references in international private law is called into question and the application of the »ordre public« is criticized in as far as it does not lead to results compatible with the Convention. The jurisprudence of the Court thus does not only bring about reforms in some specifi c branches of private law, but also challenges traditional dogmatic approaches. While the Court is aware of its subsidiary role, especially in favouring procedural solutions to confl icts between different legal positions, the new case-law may enhance tendencies of creating a common European culture of civil law.