Normsatzstruktur des IPR

According to the traditional view, a German choice of law rule that orders the judge to apply foreign law does not result in the making of German law. Instead, foreign law is believed to be merely »applicable« and not to be valid German law. In this work, Boris Schinkels shows that, contrary to the traditional view, it is impossible to distinguish between »binding applicability« and »validity.« In accordance with legal theory and Kelsenian thinking, he concludes that by ordering the application of foreign law the German choice of law rules do in fact produce domestic German law. Based on this, Schinkels develops a new theoretical classification which distinguishes between choice of law rules that refer directly to foreign private law and those choice of law rules that take into account foreign choice of law rules as well (renvoi). He comes to the conclusion that due to the lack of a statutory basis for law-making the latter is incompatible with the German constitution.