Qualifikationskonflikt, Metakollisionsnorm, Privatscheidung

The conflict of characterization in private international law (PIL) arises between characterization under the lex fori and under the lex causae . When determining the concepts used to define the object of the choice of law-rule, functional characterization offers a more fruitful approach. Against the background of French and German private international law, Dmitry Tarikanov addresses this classic question of conflict of laws using the example of private divorce. Here, the focus shifts to the distinction between the validity of a divorce under conflict of laws rules (PIL) and under procedural principles (recognition in procedural law), as well as to the so-called recognition of a legal situation under primary EU law. The author shows that a meta-conflict rule resolves the prior conflict of characterization by determining whether a private divorce is to be classified as an institution of procedural law or of substantive law. The method of procedural recognition may be applied to out of court decisions where, functionally, they are equivalent to a domestic judgment. Whether such functional equivalence exists depends on the legal effects of the decision. A deficiency in foreign administrative involvement is addressed in German law by the criterion of the requisite constitutive involvement of a foreign public authority, and in French law by the ordre public (public policy) reservation.