After reading Martin Solution A civil court hears a transnational dispute between private parties, which, according to the forum’s choice of law rules, is governed by a foreign lex causae. One party submits that it considers the foreign statute applicable to the dispute to be incompatible with the constitutional law of the lex causae and wishes to lead evidence to that effect, or ask the court to inquire into that question, with a view to having the impugned provision disapplied and the dispute decided on the basis of other provisions of the lex causae. How will the court respond to that submission; what does the forum’s private international law require it to do in these circumstances? This question will be addressed in this essay with respect to the laws of England as applied by the German courts on the one hand and those of Germany applied by English courts on the other. The study will deal exclusively with the effects which an incompatibility of primary legislation with constitutional norms of the lex causae creates from a private international law perspective and will therefore not address the questions of ‘unconstitutional’ subordinate legislation and, falling into a very similar category from a European law perspective, national primary legislation in contravention of EC law1. It is conceded that the practical scope of the problem of constitutional review of provisions of the foreign lex causae in the forum courts with respect to the laws of two states that, like England and Germany, by and large, share common values and, as member states of the European Community, show significant convergence or even uniformity in many areas of the law, is indeed a limited one. This finding is reinforced by the distinct ‘homeward trend’ of the English choice of law rules governing important areas of the law such as family law2. The fact, however, that the only case that has - so far - come to the English courts where the court was squarely faced with the question of permissibility of constitutional review of the foreign lex causae provision, related to the corporate law of another EC member state (Italy)3, demonstrates at least a residual practical importance of this matter. Furthermore, a considerable number of aspects that will be discussed in the course of this study will also be applicable to instances where German or English law will have to be applied in fora other than England or Germany. However, what makes the present topic particularly interesting, are the respective peculiarities of English and German constitutional law and their practical effect on transnational civil litigation of the kind in issue. In trying to find a satisfactory answer to the question as to how the English and German forum courts should react when faced with an allegation of ‘unconstitutionality’ of a lex causae statute, jurisprudence and, to a larger extent, influential scholarly writing will be presented and critically examined. In chapter II, the attitude taken by E.

1. After reading Martin
Solution
A civil court hears a transnational dispute between private parties, which, according
to the forum’s choice of law rules, is governed by a foreign lex causae. One party submits that it
considers the foreign statute applicable to the dispute to be incompatible with the constitutional
law of the lex causae and wishes to lead evidence to that effect, or ask the court to inquire into
that question, with a view to having the impugned provision disapplied and the dispute decided
on the basis of other provisions of the lex causae. How will the court respond to that submission;
what does the forum’s private international law require it to do in these circumstances? This
question will be addressed in this essay with respect to the laws of England as applied by the
German courts on the one hand and those of Germany applied by English courts on the other.
The study will deal exclusively with the effects which an incompatibility of primary legislation
with constitutional norms of the lex causae creates from a private international law perspective
and will therefore not address the questions of ‘unconstitutional’ subordinate legislation and,
falling into a very similar category from a European law perspective, national primary legislation
in contravention of EC law1. It is conceded that the practical scope of the problem of
constitutional review of provisions of the foreign lex causae in the forum courts with respect to
the laws of two states that, like England and Germany, by and large, share common values and,
as member states of the European Community, show significant convergence or even uniformity
in many areas of the law, is indeed a limited one. This finding is reinforced by the distinct
‘homeward trend’ of the English choice of law rules governing important areas of the law such
as family law2. The fact, however, that the only case that has - so far - come to the English
courts where the court was squarely faced with the question of permissibility of constitutional
review of the foreign lex causae provision, related to the corporate law of another EC member
state (Italy)3, demonstrates at least a residual practical importance of this matter. Furthermore, a
considerable number of aspects that will be discussed in the course of this study will also be
applicable to instances where German or English law will have to be applied in fora other than
England or Germany. However, what makes the present topic particularly interesting, are the
respective peculiarities of English and German constitutional law and their practical effect on
transnational civil litigation of the kind in issue. In trying to find a satisfactory answer to the
question as to how the English and German forum courts should react when faced with an
allegation of ‘unconstitutionality’ of a lex causae statute, jurisprudence and, to a larger extent,
influential scholarly writing will be presented and critically examined. In chapter II, the attitude
taken by English and German law towards the review of foreign law by civil courts will be

2. explained against the background of the general theory of English and German private
international law. It will be shown that, within the limits set by the lex causae constitutional law,
the forum courts will in principle not shy away from entertaining an incidental challenge to the
constitutionality of a foreign lex causae provision. Building on this finding, chapter III will apply
the tests identified in the preceding chapter to the particular question of the review of German
and English law. It will then be concluded that, except for some practically insignificant
constellations, the English and German courts actually lack jurisdiction to review (and
invalidate) an impugned piece of English and German legislation respectively. The consequences
of this situation will then be examined and discussed in chapter IV with a view to identifying and
delimitating ways of addressing this shortcoming open to the English and German forum courts
under their respective private international and domestic procedural law. II. Constitutional
review and the interplay between lex fori and the foreign lex causae: the ‘foreign court theory’
and its limits May an English or German court adjudicating a civil dispute generally entertain a
challenge to the constitutionality of a statutory provision belonging to the foreign lex causae that
would be applicable to the dispute at bar? The answer to that question seems to be in the
affirmative according to the relatively rich scholarly writing in both jurisdictions, touching, quite
frequently merely en passant, on this issue4. If reasons for this opinion are given at all, they
typically do not amount to more than a mere reiteration of the principle that the forum courts
have to apply the lex causae in the same way as the courts of the lex causae jurisdiction would do
if they were to decide the dispute. It is only Kahn-Freund (and perhaps Morris5) who, quite
forcefully, expressed his disagreement with this position insofar as the forum courts would be
called upon to decide not only on the formal validity of a law but also on the compatibility of a
law with substantive provisions of constitutional law6. The picture is less clear when one turns
to the courts’ jurisprudence: despite there being instructive albeit somewhat unreasoned obiter
dicta in the English courts to the effect that there exists no bar to the courts reviewing the
constitutionality of a foreign laws7, Thomas J in the Commercial Court, upon being asked to
hear evidence concerning the constitutionality of an Italian law, referred to that question as being
one left open by previous decisions and deferred a decision on the justiciability of the issue until
the parties to the action before him presented evidence pertaining thereto. However, the judge
expressed doubts as to the propriety of an English court pronouncing on the constitutionality of a
foreign law by informing the moving party in the instant case of the ‘formidable difficulties’ it
would face persuading him to hold the issue to be justiciable8. As the case was later disposed of
without the need to resolve the issue, there is to date no English decision with binding force on
that matter. On the other hand, there are some German judgments on this matter. The
Oberlandesgericht (Court of Appeal) Hamm held that a German judge would have been entitled
to examine the constitutionality of a foreign statute provided the lex causae allowed its own civil

3. courts to do so9. Citing with approval a decision by the Bayerisches Oberstes Landesgericht
(Bavarian Supreme State Court)10, the court then declined to rule on the constitutionality of the
impugned Italian statute as Italian constitutional law itself did not allow the ordinary courts to
pronounce on the constitutionality of primary legislation. Although there is, as stated above,
overwhelming support in most influential English and German academic writing for the position
taken by the German courts, there is a marked absence of the discussion of the theoretical
underpinning for that approach. It therefore seems appropriate to examine, at least cursorily, the
theoretical framework for constitutional review of foreign law and the main arguments against
the forum courts’ jurisdiction to review in this chapter before, in chapter III, turning to the
question whether the English courts have jurisdiction to actually review German law against the
German constitution and vice versa. When comparing the approach taken by these two legal
systems towards constitutional review of foreign law in its courts, the question will inevitably
arise as to whether or not the mere circumstance that foreign law is treated as ‘fact’ under
English private international law and as ‘law’ under German law has a decisive bearing on the
question in issue. This, it is submitted, is not so. It is widely accepted that the categorisation of
foreign law as either ‘fact’ or ‘law’ should not be overemphasised as neither legal order seems to
accept the full consequences of its respective ‘official’ position11; moreover, there is a
noticeable similarity in the treatment of foreign law in the trial courts in England and Germany.
In both systems the judge is, as a rule, not generally presumed to have knowledge of the contents
of the foreign lex causae12, so that it needs to be proved, the only exception being that of foreign
law actually known to the German judge in an individual case pursuant to § 293 of the German
Zivilprozessordnung (ZPO, Code of Civil Procedure). The main practical difference for the
purposes of this study, therefore, is not so much one of ‘fact’ or ‘law’ but one of the burden and
modes of proof: on whom is it incumbent to lead evidence to the effect that a foreign provision,
that is initially found to be applicable, contravenes the lex causae constitution and is thus
invalid? And by which means? Under English private international law the burden of proof rests
with the party wishing to rely on the fact to be proven with this burden being discharged by the
leading of expert evidence13, whereas in the German system it is upon the court under § 293
ZPO to adduce evidence to that effect by means of its choosing14. This distinction will have to
be borne in mind particularly in chapter IV, where this issue will have to be revisited. For the
present chapter, however, it suffices to restate that existing differences between the private
international law of the jurisdictions to be studied will not be material to the question whether the
courts generally enjoy jurisdiction to review. A. Private international law, constitutional review
and the ‘foreign court theory’ As has been mentioned in the preceding sub-chapter, the basic
justification put forward by the numerous English and German advocates of the forum courts’
jurisdiction to review provisions of the foreign lex causae is what was aptly called the ‘foreign

4. court theory’15: the English and German choice of law rules demand that the foreign lex causae
be applied in the way it would be applied by the courts of the lex causae jurisdiction16. Thus, for
the English system, the Court of Appeal once described the expert witness’s task as being to
‘predict the likely decision of a foreign court, [but] not to press upon the English judge the
witness’s personal views as to what the foreign law might be’17. This theory lies at the heart of
the system of private international law with its aim to decide a transnational civil dispute
according to the substantive law that, by choice or close connection to the matter in dispute, is
considered the most appropriate in upholding the reasonable expectations of the parties,
irrespective of the place where the litigation is conducted. This rationale of international
‘harmony’ necessarily implies what amounts to the crucial characteristic of the system of private
international law, viz the distinction between jurisdiction and applicable substantive law, and it is
only this distinction that makes the question to be discussed in this study a difficult one. When it
comes to the problem of the constitutionality of a lex causae provision, the forum court will thus
be asked to extend to the litigants the rights they would enjoy had they litigated in the lex causae
courts, by asking the judge to examine the compatibility of the impugned provisions with the lex
causae constitutional law. However, a forum court’s appreciation of the constitutionality of a
foreign provision would not have any effect on the lex causae legal order and the continuing
validity thereunder of the impugned provision as the forum courts’ jurisdiction will always be
limited to the forum state’s territory. Therefore, and for reasons of comity between the courts of
different jurisdictions, the forum courts would be prohibited from embarking on the highly
delicate exercise of reviewing foreign legislation where their doing so would not have an
immediate effect on the outcome of the litigation, and, obviously, where the challenge, in itself,
constitutes the sole action. Thus, since it cannot be incumbent on the forum courts to criticise,
rather in abstracto, a foreign law and, moreover, the foreign legislature having enacted it, it is
generally accepted that, under the ‘foreign court theory’, the forum court possesses jurisdiction
to review only where an incompatibility with formal or substantive requirements of its
constitutional law would entail the invalidity or at least its being subject to invalidation, of the
impugned lex causae provision and thus only where the factor of unconstitutionality could have
an decisive effect on the result of the litigation. In this case the forum court would be allowed to
simply disapply the provision. It would thus put the litigants in effectively the same position they
would be in had they had the dispute adjudicated by the lex causae courts; by doing so, the judge
will have achieved to ‘disconnect’ the outcome of the litigation from the ‘randomness’ of the
place where it was conducted. The question whether or not the English or German forum court
may engage in a review of the generally applicable foreign law is therefore, as a result of the
‘foreign court theory’, dependent on the hierarchical structure of the lex causae and, furthermore,
on there being a jurisdiction vested in the lex causae courts to examine the validity of the laws

5. they have to apply18: if no court may question the validity of a piece of legislation, then there is
no justification for the forum courts to do so. (The issue of the concentration of the jurisdiction to
constitutionally review legislation under the lex causae in a special judicial body and its effect on
the jurisdiction of the forum courts will be addressed below in sub-chapter II.C.) If the
jurisdiction of the forum courts depends, under the ‘foreign court theory’, on the jurisdiction of
the lex causae courts, there remains an additional factor to be considered. Despite the rationale of
private international law being to make the result of litigation independent of its situs, it still has
to be acknowledged that it is ultimately still the lex fori that controls the application of foreign
law and may, albeit exceptionally, distort or rather limit the ‘foreign court theory’, be it, inter
alia, initially and most importantly, through the forum’s choice of law rules, through the
procedure followed in the forum courts, or through the forum courts’ power to exclude parts of
the lex causae, or even all of it, under the doctrine of public policy or ordre public. These limits
of the ‘foreign court theory’ may also have an impact on the question of review jurisdiction of
the forum courts and, as they have played a significant role in the decisions of the English courts
on this matter, will thus have to be addressed in the following sub-chapter. In general terms, one
can conclude that in English as well as German private international law it is established that,
when determining the jurisdiction of the forum courts, the result is preordained by the allocation
of jurisdiction to review in the lex causae system under the ‘foreign court theory’ within the
residual jurisdictional limits under the lex fori. B. Limits to the forum courts’ jurisdiction to
review under public international law and the lex fori Provided the lex causae permits its courts
to review legislation with a view to determining its constitutionality as a condition of its validity,
the ‘foreign court theory’ would allow the English and German courts to do the same.
Nevertheless, in English jurisprudence and academic writing, there has been an on-going
discussion of the limits to the jurisdiction of the forum courts under (public) international law
and the lex fori, purportedly barring these courts from entertaining requests for inquiring, or
having inquired, into the validity of an impugned piece of foreign legislation. These limits
pertain primarily to the perception of constitutional review as being a distinctly political, or at
least politically charged, task19 that would usually not be incumbent on courts other than that of
the lex causae for its intrusive and delicate nature. There is, however, no generally recognised
bar to the forum court’s jurisdiction to examine the validity of a foreign law under public
international law20: as, for the purposes of this study, the question of a statute’s validity will be
one which is raised solely incidentally in transnational civil disputes over the private rights of the
litigants, considerations of state immunity or, to use a more accurate term, immunity ratione
personae, may bar the proceedings with respect to the nature of the parties involved but not, once
no litigant acts in a sovereign capacity, with respect to the simple subject-matter of the dispute.
Public international law does not generally know of a rule granting immunity ratione materiae to

6. private litigants, as is acknowledged by the absence of a rule to that effect from the European
Convention on State Immunity21 and the relevant provisions of the UK State Immunity Act
1978 and §§ 18 to 20 of the German Gerichtsverfassungsgesetz (GVG, Court Organisation Act),
and, consequently, that point has never seriously been discussed in either English or German
case law or writing on that matter. Lord Denning’s pre-State Immunity Act dictum, which was
cited with approval by Morritt J in one of the leading cases concerning the question of
constitutional review22, to the effect that state immunity would depend on the subject-matter
rather than on nature of the direct or indirect parties to a dispute23 has thus to be dismissed as at
least highly inaccurate under the law as it now stands. Thus jurisdictional limits, apart from
those arising under the lex causae under the ‘foreign court theory’, can stem only from the
municipal lex fori complementing the rules on immunity in international law. Here, English
jurists and judges usually embark on a lengthy discussion of the limits and effects of what has
been termed the Act of State doctrine; it is this point that forms the bulk of the considerations in
the cases addressing the question of the permissibility of constitutional review of foreign law in
the English courts24. As in the most recent case on this issue25, Thomas J opined that judicial
authority would seem to leave open this question, some, albeit by no means exhaustive,
elaboration on that matter and the judge’s appraisal of the current state of the law is called for.
The doctrine, which, according to almost unanimous judicial and academic writing, does not
amount to a rule of customary international law but merely forms part of English constitutional
law26, governs the justiciability of cases and calls for judicial restraint or abstention27
particularly in those kind of disputes that touch upon the politically sensitive area of foreign
relations. Although there does not seem to be a general guiding principle to that doctrine28, it
can, for the purposes of this study, be summed up as a rule forbidding the inquiry into the
validity of a legislative or executive act of a foreign state performed within its own territory. This
principle has been first laid down authoritatively by the House of Lords in the decision in Duke
of Brunswick v King of Hanover29 and was reaffirmed and elaborated on by the same court in
the seminal decision in Buttes Gas and Oil Co. v Hammer30. In the former decision, the Lords
held that an action the sole purpose of which was to challenge directly the validity of a decree by
the King of Hanover could not be entertained by the English courts whereas in the latter case, the
Law Lords ruled a private dispute unjusticiable for, in the course of its adjudication, the court
would “be asked to review [incidentally and for violation of international law] transactions in
which four sovereign states were involved [viz concession agreements], which they had brought
to a precarious settlement, after diplomacy and the use of force”. Both cases, however, dealt with
situations markedly different from those that are discussed in this study, as they involved either a
direct challenge of a foreign piece of legislation or an, albeit incidental, attack on inter-state
treaties and governmental action, and the House of Lords in Buttes Gas and Oil Co. expressly

7. acknowledged the difference between an inquiry into the propriety and validity of “acts
operating in the area of transactions between states” and the determination of validity “of a
foreign municipal law or executive act if it is contrary to public policy or international law”. This
dictum was in keeping with previous dicta in the Court of Appeal and the Chancery Division in
Buck v A-G31 and Manuel v A-G32 respectively and, a few years later, a forceful dictum of
Morritt J in 1990 in Dubai Bank Ltd v Galadari (No 5)33 to the effect that the Act of State
doctrine would not apply where, in a dispute between private parties, the English forum court
was asked incidentally to inquire into the constitutionality and validity of provisions of a foreign
lex causae governing the dispute at bar. This line of reasoning which is reflected in the most
influential academic writing to date in the area of English private international law34, shows
quite clearly that the remarks referred to above by Thomas J in Nouva Safim S.p.A. v The
Sakura Bank Ltd.35 to the effect that the question of the applicability of the doctrine to the issue
of constitutional review in a private international law litigation would still be an open one, are
difficult to reconcile with what seem to be the generally accepted limits of the Act of State
doctrine. They will therefore have to be dismissed as overly cautious and unsubstantiated. Thus,
the doctrine cannot be regarded as jurisdictional limit to the English forum courts reviewing the
foreign lex causae; as there is no comparable doctrine in German law36, the question of
jurisdictional limits of the kind discussed here does not arise with respect to German courts. The
mere contention that the forum courts, when called upon to examine the constitutionality of a
foreign statute, might be required to engage in a somewhat politically charged act of adjudication
they could be said to be ill-equipped to perform due to their lack of familiarity with the foreign
constitutional law37, cannot amount to a legal bar under the lex fori to the forum courts’
jurisdiction to review foreign legislation. However, this fact would certainly induce the forum
courts to proceed with considerable reluctance and utmost circumspection when deciding on the
constitutionality of the lex causae and may have an influence on the standard of proof a court
would apply before disapplying a foreign law for want of constitutionality. As will be shown in
sub-chapter IV.C, considerations of this kind may also influence the English forum courts’
decision whether or not to decline jurisdiction under the doctrine of forum non conveniens.
Therefore, neither international nor English or German law know of any rules barring the forum
courts from examining the constitutionality and validity of a foreign statutory provision under
the ‘foreign court theory’. Provided the lex causae grants its courts jurisdiction to review, the
English and German forum courts will enjoy a similar competence, necessarily restricted,
however, to the simple disapplication of the impugned provision. C. Limits to the forum courts’
jurisdiction to review under the lex causae and the ‘foreign court theory’ Once it is accepted
that, under the ‘foreign court theory’, it is exclusively the constitutional law of the lex causae that
determines the jurisdiction not only of its own courts but, indirectly, also that of foreign courts,

8. these provisions governing the courts’ competence to examine the constitutionality and validity
of legislation will have to be examined so as to direct the forum judge regarding his or her
jurisdiction to review the foreign law. Where, in a ‘diffuse’ system of constitutional review as
the US, the lex causae allows the ordinary courts to examine the laws it is asked to apply and,
incidentally, pronounce on their validity, the English and German forum courts would have
jurisdiction to do the same and, if necessary, disapply the provision found to be contravening the
constitution. Conversely, it seems generally accepted in England and Germany that, where the
lex causae does not provide the courts with the competence to examine the applicable primary
legislation, the forum courts will equally lack a such competence38. The matter becomes more
complicated, however, where, in a more or less ‘centralised’ system of constitutional review, the
relevant norms of the lex causae reserve the determination of the constitutionality and validity
for a specialised judicial body, such as a constitutional court, or a number of exhaustively
enumerated, usually superior, courts. In that case, the German courts and academic writers apply
the ‘foreign court theory’ to the effect that, like their equivalents in the lex causae legal system,
the German forum courts lack jurisdiction to review39. Conversely, the position under English
private international law is not entirely clear. Unlike most academic writers who would adopt the
same approach as their German colleagues40, Thomas J in the only English case so far where a
court was squarely faced with that question41, was obviously not of the opinion that the
reservation of jurisdiction to review the Italian law in question for the Italian Constitutional
Court under the Italian constitution would necessarily deprive him of the competence to allow
the law to be examined as to its validity in his court, once he would have found that the issue of
constitutionality of a foreign law was justiciable in the English courts. This is made clear by his
order to adjourn the matter in order to allow the parties to the action to prepare further evidence
pertaining to that question for a hearing which, apparently, never took place. Could there be any
justification for a forum judge to disregard the lex causae’s barring the ordinary courts from
pronouncing on the constitutionality of a statute? It seems at first glimpse that it could be argued
that the ‘foreign court theory’, as interpreted liberally, would actually compel the forum court to
assume the power to review, as the theory could be understood to mean that the litigants would
have to be put in as much the same position by the forum court they would be in had they
litigated the dispute in the courts of the lex causae. Were the forum court not be able to disapply
a foreign provision, then a litigant alleging the invalidity of that provision would receive a less
favourable treatment in the forum courts than in the courts of the lex causae, where he or she
might have had the opportunity to have the provision invalidated on appeal or by way of
application to a special judicial body. Thus, the place of the litigation might have a considerable
impact on the result of the litigation. This interpretation of the ‘foreign court theory’, however,
has to be rejected. No litigant can demand from the forum courts to be put in exactly the same

9. position he or she would have been in had he litigated before a court of the lex causae. For
example, as it is universally accepted that each court will exclusively apply its forum’s
procedural law42, a difference in the outcome of a litigation from that had it taken place
elsewhere can be inevitable despite the same substantive law having been applied, and this,
although at variance with the general aim of private international law, is considered an
irremediable fact of transnational litigation. This may show, that the ‘foreign court theory’ will
have to be understood more narrowly as only requiring the forum judges to apply the foreign
substantive law in the same way their opposite numbers in the lex causae legal system would be
allowed to do, thus barring them from entertaining requests for an examination of the validity of
a lex causae provision. This restrictive approach, consonant with the widely held view of
German and English scholars on this matter, also gives due regard to the rationale of the lex
causae legislature to reserve the competence to authoritatively determine the constitutionality
and validity of primary legislation for a special body or category of courts: this is supposed to
ensure that only those judges are allowed to examine primary legislation that are considered to
be particularly qualified and thus been selected to embark on this highly delicate judicial task43.
Therefore, it has to be assumed that, upon a correct application of the law, the English forum
courts, like the German forum courts, would not possess jurisdiction to review where that
jurisdiction is reserved for a special court or courts under the lex causae. In conclusion, under
English and German private international law, the forum courts will enjoy jurisdiction to inquire
into the validity of foreign legislation only if the jurisdiction to do so under the lex causae is
vested in the ordinary courts. III. Constitutional review of English law in German courts and
vice versa Having examined the general approach of English and German private international
law to the forum courts’ competence to engage in an exercise of constitutional review of a
foreign lex causae, this theory will now be applied to the question of the jurisdiction to examine
provisions of the German and English lex causae in the English and German forum courts
respectively. This will be done, first, by introducing the basic rules on constitutional review lato
sensu in each jurisdiction and then, on the basis of the ‘foreign court theory’, by assessing the
forum courts’ competence to review the German and English lex causae. A. German law in
English courts Under arts 1(3) and 20(3) of the German Grundgesetz (GG, Basic Law), the
legislature is bound by the constitutional order and the basic rights enshrined in arts 1 to 19 GG;
all legislation has therefore to conform to the Grundgesetz and, if failing to do so, is invalid.
Under arts 93 and 100 of the GG, however, the jurisdiction to authoritatively pronounce on the
constitutionality and thus the validity of primary legislation is vested exclusively in the
Bundesverfassungsgericht (BVerfG, Federal Constitutional Court). However, it is incumbent on
the ordinary courts to examine the constitutionality of the laws they are asked to apply. If they
take the view that a certain statute contravenes the Grundgesetz, and if the outcome of the case

10. depends on the application of the statute, they are bound to stay the proceedings and refer the
isolated constitutional question under art 100(1) GG to the BVerfG for an authoritative decision.
The only, rather insignificant, exception to this restrictive approach of the Grundgesetz towards
the constitutional review of primary legislation is, according to longstanding practice44, what is
slightly misleadingly called ‘pre-constitutional law’, a category that comprises those very few
statutory provisions that had been enacted prior to the entry into force of the Grundgesetz in
1949 and which have not, since 1949, directly or indirectly, received parliamentary approval
after 1949. Ordinary courts are empowered to pronounce on the constitutionality of these
provisions for the purpose of a given dispute, and to disapply them for violation of the
Grundgesetz. By and large, however, the German system of constitutional review can be
regarded as a typical example of a ‘centralised’ system of review. Applying the ‘foreign court
theory’ under the rules of English private international law, it is readily apparent that an English
forum court, when called upon to apply the German lex causae, would lack jurisdiction to
entertain challenges to the constitutionality of primary legislation just like its German
counterpart45, unless the provision in question falls in the very narrow category of ‘pre-
constitutional law’. Whether or not the English forum court may make a preliminary reference
under art 100(1) GG to the BVerfG, does not affect the question of the court’s competence to
engage in an independent review of the German legislation on its own, and will thus be
considered below in chapter IV. Thus it has to be reiterated that, in the overwhelming majority of
cases, the English forum courts may not question the validity of German legislative provisions in
the course of transnational civil litigation.