Das Kollisionsrecht der auftragslosen Geschäftsführung – Ein Beispiel für Materialisierung und Typisierung im modernen europäischen IPR

Choice of law in the field of negotiorum gestio (benevolent intervention in another's affairs) has always suffered from a lack of systematic analysis. Practical cases are rare, and scholarship often gives the topic short shrift. Not surprisingly, therefore, doctrinal structure and legal certainty are amiss – especially under article 11 of the Rome II Regulation. As a closer look at the topic unveils, however, choice of law in negotiorum gestio provides for a rich field of analysis. It offers insight into many of the fundamental issues that lie at the centre of the debate over an increasingly policy-loaded modern European choice-of-law regime. Under current doctrine, courts and commentators often aim for efficiency in the handling of conflicts issues in the concrete case at bar. Yet a formal ex post analysis fails to adequately consider all interests involved – usually, it neglects substantive-law policies and concerns of the individual parties. At the same time, however, the counter-position of a more substantive-law-oriented analysis also suffers from defects. In particular, its reliance on the classification provided for by national private-law regimes risks getting trapped in the fallacy of a lex fori-centric characterization. In other words, simply looking at the substantive-law policies underlying the forum's law risks neglecting the differences in substantive private laws across different legal orders. In order to avoid these pitfalls, a reconceptualization is needed – one that is oriented toward more fundamental functions of negotiorum gestio and that avoids a national-law perspective. The analysis must incorporate an elementary functional characterization of the conflicting positions both on the level of substantive doctrine and on the level of conflicts law. As a look at rules on negotiorum gestio in virtually all legal regimes unveils, a fundamental conflict of interest exists: a principal's freedom from undue interference in her affairs directly corresponds to other parties' capacities as legitimate interveners – extending the one necessarily implies limiting the other, and vice versa. If the intervention comprises conduct and effects within the territory of a single country, each party must also abide by a single regime of rules on negotiorum gestio. The frame of reference for the parties' reasonable expectations with respect to their conflicting positions and with respect to the handling of these positions under the legal regime is, accordingly, restricted to national boundaries. The same does not hold true in cross-border conflicts. In this regard, the conflict of interests occurs in more than one jurisdiction and thus also provides an extended basis for describing each party's reasonable expectations in the choice-of-law analysis. The issue then is what legal regime(s) the parties reasonably expected to be applied to their conflict. In essence, it is the intersection of these expectations that provides the determinant connecting factor for conflicts attachment. This means that the principal should generally expect freedom from unsolicited intervention to be granted under the regime of her residence. It is thus usually the so-called lex habitationis that applies. Only if a principal has deliberately extended her scope of affairs to a different jurisdiction (e.g., by traveling or by acquiring property there) – and if she is also receiving assistance from an intervener – should she expect a different regime to apply. For the intervener, the expectation of an intervention's legitimacy – if it can be foreseen to have cross-border implications – must be tied to all jurisdictions where such effects can occur. The intervener cannot rely on the application of her own lex habitationis, nor can she generally expect an application of the lex loci actus (i.e., the law at the place where she acted). Rather, she must expect the application of the law of the place where her conduct actually has or could have effec