Chapter
b. Factual nature of foreign law
c. Hybrid nature of foreign law
d. Conclusion: the lack of a valid and effective response
2. The introduction of foreign law in the case at stake
a. The condition granted to choice-of-law rules and the application of foreign law
b. The pleading of foreign law before national courts
i) Countries endorsing the legal nature of foreign law
ii) Countries endorsing the factual nature of foreign law
iii) Countries endorsing the hybrid nature of foreign law
iv) Conclusion: inconsistencies exist between the theoretical approach upheld and its practical implementation
c. Application of foreign law by courts and the “iura novit curia” principle
i) EU Member States endorsing the factual condition of foreign law
ii) EU Member States endorsing the hybrid nature of foreign law
iii) EU Member States endorsing the legal condition of foreign law
d. The supplementary role played by the parties as regards the pleading of foreign law
3. The ascertainment of the content of foreign law
a. The role played by the court and the parties as regards the ascertainment of the content of foreign law
i) Countries Endorsing the legal nature of foreign law
ii) Countries Endorsing the factual nature of foreign law
iii) Countries Endorsing the hybrid nature of foreign law
b. The means used to ascertain the content of foreign law
i) EU Member States awarding legal condition to foreign law
ii) EU Member States awarding factual condition to foreign law
iii) EU Member States awarding hybrid condition to foreign law
c. Existence and application of bilateral / multilateral conventions as regards foreign law
d. Proof of the content of foreign law and legal aid
i) EU Member States awarding legal condition to foreign law
ii) EU Member States awarding either factual or hybrid condition to foreign law
e. When is the content of foreign law deemed suffciently ascertained?
4. The application of foreign law
a. How is foreign law applied by the judge?
b. What happens in those cases the court considers that the content of foreign law has not been ascertained?
c. Refusal of application of foreign law
5. May the application of foreign law be reviewed by the courts?
III. The Application of Foreign Law by Non-Judicial Authorities in Europe
2. The meaning of “non-judicial authorities” regarding the application of foreign law
3. Non-judicial authorities and the application of foreign law
4. The role played by the parties and non-judicial authorities regarding the application of foreign law
5. Consequences of the lack of ascertainment of the content of foreign law
“Principles for a Future EU Regulation on the Application of Foreign Law (“The Madrid Principles”)
I. Application of Foreign Law by Judicial Authorities
1. Ex offcio ascertainment of foreign law
2. Modifcations of the principle of iura novit curia
4. Means of ascertainment used by the court
6. In case foreign law cannot be ascertained: application of the lex fori
7. Review of judgments rendered on the basis of foreign law
II. Application of Foreign Law by Non-Judicial Authorities
III. Evaluation of the Austrian / German rule
1. Broad acceptance of the ex offcio approach
I. Application of Foreign Law by Judicial Authorities
3. The role of the court and parties regarding the pleading and proof of foreign law
4. When and how foreign law is deemed proved
5. Grounds for rejecting the application of foreign law
6. Possibilities to review judgment rendered on the basis of foreign law
7. Conventions regarding the application of foreign law
II. Application of Foreign Law by Non-Judicial Authorities
I. Application of Foreign Law by Judicial Authorities
1. Nature of foreign law in Belgium
2. Pleading and proof of foreign law: role of the parties and the judge
3. Means of ascertainment of foreign law
4. When and how foreign law is deemed established in time?
5. How does a court apply foreign law?
6. How can gaps be flled and what happens in case of lack of ascertainment of foreign law?
7. When and how may the application of foreign law be rejected by the court?
8. Review of the judgment rendered on the basis of foreign law
II. Application of Foreign Law by Non-Judicial authorities
II. Legal Rules on Application of Foreign Law
1. Code of Private International Law
2. International Conventions on proof of foreign law
III. Application of Foreign Law by Judicial Authorities
1. Legal nature of foreign law
2. The principle “iura novit curia”
3. Pleading and proof of foreign law
4. Lack of proof of foreign law
5. Costs for ascertainment of the foreign law
6. Appeal based on the insuffcient or incorrect application / interpretation of foreign law
7. Rejection of application of foreign law
IV. Main Features of the Application of Foreign Law by Non-Judicial Authorities
1. Non-judicial authorities applying foreign law
2. Application of foreign law by non-judicial authorities
3. Pleading and proof of foreign law by non-judicial authorities
IV. The Role of the Trial Judge
V. Failure to Prove Foreign Law
VI. The Right to Review Foreign Law
VII. Review of Foreign Law on Appeal
Czech Republic and Slovak Republic
I. Application of Foreign Law by Judicial Authorities
2. Brief history of legal regulation
3. Fundamental principles of the current legal regulation regarding the application of foreign law
a. Duty to apply foreign law
b. Foreign law is treated as law
c. The principle “iura novit curia” and the duty to ascertain the content of foreign law
d. Application of foreign law
4. Ascertaining of the content of foreign law
5. Application of the lex fori instead of foreign law
6. Review of the judgment rendered on the basis of foreign law
II. Application of Foreign Law by Non-Judicial Authorities
2. Review of the decision rendered on the basis of foreign law
II. The Application of Foreign Law by Judicial Authorities
1. The introduction of foreign law in the case
a. The ubiquitous distinction of available and unavailable rights
b. The mandatory character of the choice of law rule when unavailable rights are involved
c. The optional application of the choice of law rule when available rights are involved
2. The ascertainment of foreign law
b. The available modes of proof
c. The interpretation of foreign sources
d. Failure to establish foreign law
3. The exclusion of foreign law on the ground of public policy
a. The French doctrine of “ordre public international”
b. The activation of the public policy mechanism
4. Wrongful application of foreign law
a. The theory of equivalence
b. The grounds of the review of appellate decisions by the Cour de cassation
III. The Application of Foreign Law by Non-Judicial Authorities
1. The introduction of foreign law in the case
2. The ascertainment of foreign law
3. The exclusion of foreign law
II. Historical Background: The Treatment of Foreign Law Under the Code of Civil Procedure of 1834
III. Legal Nature of Foreign Law
IV. The Judicial Treatment of Foreign Law
VI. The Consequences of the Failure to Prove Foreign Law
I. Application of Foreign Law by Judicial Authorities
2. Legal nature of foreign law in Hungary
3. The role played by the judge and by the parties as regards proof of foreign law and the ascertainment of the content of foreign law
4. When and how is foreign law deemed proved?
5. How is foreign law applied by the court and how are gaps flled?
6. When and how may the application of foreign law be rejected by the court?
7. Possibilities of reviewing the judgment rendered on the basis of foreign law by upper courts
8. Is there any bilateral / multilateral convention as regards the proof of foreign law applicable? How do they work in practice?
II. Application of Foreign Law by Non-Judicial Authorities
2. Specific features (differences and identities compared with judicial authorities)
a. Application of foreign law in notarial proceedings
b. Application of foreign law before court proceedings in family cases
i) Proceedings of the registrar for contracting marriage
ii) Registration of non-marital cohabitation
iii) International adoption
II. Legal or Factual Nature Granted to Foreign Law in Ireland
III. The Role Played by the Judge and by the Parties as Regards the Plea and / or proof of Foreign Law and the Means Referred to as Regards the Ascertainment of its Content
IV. The Specific Case of Canon Law Before Irish Courts
II. The Nature of Foreign Law: Article 14 of the Italian Reform of PIL
III. The Role Played by the Judge and by the Parties
IV. The Ascertainment of the Content of Foreign Law
V. The Proof of the Content of Foreign Law
VI. Problems on the Application of Foreign Law
VII. Reasons for Rejecting the Application of Foreign Law
VIII. The Review of Judgements Rendered in Application of Foreign Law
IX. International Conventions
II. Application of Foreign Law by Judicial Authorities
3. The role played by judges and parties concerning the pleading and proof of foreign law
4. The proper moment to prove foreign law, the object and means of proof
5. Applying and rejecting the application of foreign law
6. Possibilities of review by Upper Courts
7. International conventions on proof of foreign law
III. Application of Foreign Law by Non-judicial Authorities
2. Divergences among judicial and non-judicial systems
II. Legal or Factual Nature Granted to Foreign Law
III. Pleading Foreign Law and Ascertaining its Content
IV. The Means Referred to by the Court and / or by the Parties as Regards the Ascertainment of the Content of Foreign Law
V. Failure to Proof Foreign Law
VI. Rejection of the Application of Foreign Law by the Court
VII. Possibilities of Review of the Judgment rendered on the basis of Foreign Law by Courts of Second Instance Superior Courts
VIII. Bilateral / Multilateral Conventions Regarding the Proof of Foreign Law
I. Application of Foreign Law by Judicial Authorities
2. Legal nature attributed to foreign law
3. The role played by the judge and by the parties as regards the plea and proof of foreign law
4. The means by which the content of foreign law may be ascertained. Cooperation between the court and the parties
5. The sufficient determination of the content of foreign law in a reasonable time
6. Rejecting the application of foreign law
7. Possibilities of review of the judgment rendered on the basis of foreign law
8. Multilateral and bilateral conventions as regards the proof of foreign law
II. Application of Foreign Law by Non-Judicial Authorities
2. Similarities and differences between the system of application of foreign law by judicial and non-judicial authorities
III. Final Comments and Conclusions
I. Application of Foreign Law by Judicial Authorities
2. Legal or factual nature granted to foreign law in the specific country dealt with
3. The role played by the judge and by the parties as regards the plea and / or proof of foreign law and the possibility / obligation of cooperation between them as regards these two issues
4. The means referred to by the court and / or by the parties as regards the ascertainment of the content of foreign law
5. When and how is foreign law deemed proved? Meaning of proof in a reasonable time
6. How is foreign law applied by the court? How are gaps flled?
7. When and how may the application of foreign law be rejected by the court?
a. Public policy (ordre public)
8. Possibilities of review of the judgment rendered on the basis of foreign law by Upper Courts
9. Is there any Bilateral / Multilateral convention as regards the proof of foreign law applicable? How do they work in practice?
II. Application of Foreign Law by Non-Judicial Authorities
2. In case any specific system exists as regards this issue, which are the main similarities / differences in relation with the system of application of foreign law by judicial authorities
II. Application of Foreign Law by Judicial Authorities
1. Legal nature granted to foreign law in Romania
2. The role played by the judge and the parties as regards the pleading and / or proof of foreign law and the possibility / obligation of cooperation between them as regards these two issues
b. Ascertainment of the content of foreign law
3. The means referred to by the court and / or the parties as regards the ascertainment of the content of foreign law
4. When and how foreign law is deemed proved in a reasonable time?
5. How is foreign law applied by the court? How are gaps flled?
6. When and how may the application of foreign law be rejected by the court?
7. Possibilities of review of the judgment rendered on the basis of foreign law by Upper Courts
8. Existing bilateral / multilateral conventions as regards the proof of foreign law and the way they work
III. Application of Foreign Law by Non-Judicial Authorities
2. Which are the main similarities / differences regarding the system of application of foreign law by judicial authorities?
I. Application of Foreign Law by Judicial Authorities
2. Legal and factual nature of foreign law
3. The role played by the judge or the parties
4. The means referred to by the court and / or by the parties as regards the ascertainment of the content of foreign law
5. When and how is foreign law deemed proved? Meaning of proof in a reasonable time
6. How is foreign law applied by the court? How are gaps flled?
7. When and how may the application of foreign law be rejected by the court?
8. Possibilities of review of the judgment rendered on the basis of foreign law by Upper Courts
9. Bilateral and multilateral agreements
II. Application of Foreign Law by Non-Judicial Authorities
2. Special characteristics
II. Foreign Law – Legal Nature and Main Features
III. Pleading, Proving and Applying Foreign Law
1. Pleading and proving foreign law before judicial and non-judicial authorities
2. The nature of the conflict of laws rules
3. The role of the parties
4. Costs concerning the application of the foreign law
5. Assistance on the application of foreign law by the Ministry of Justice
6. Legal remedies in case of non-application or misapplication of the foreign law
7. The foreign law and provisions which effects are contrary to the domestic public order
IV. International Commitments on the Basis of International Conventions
II. Application of Foreign Law by Judicial Authorities
2. The “hybrid” character granted to foreign law
3. The role played by judges and parties concerning the pleading and proof of foreign law
4. The proper moment to prove foreign law, means and object of proof
a. The proper moment to prove foreign law
b. Means of proof of foreign law
5. Assessing the final application or rejection of foreign law
6. Possibilities of review by upper courts
7. International conventions on proof of foreign law
III. Application of Foreign Law by Non-judicial Authorities
2. Divergences between judicial and non-judicial authorities regarding the application of foreign law
3. The consequences of the lack of proof of foreign law
II. The Dutch Approach towards the Application of Foreign Law
1. General overview – the legal nature of foreign law
2. The role played by the judge and the parties and the means as regards the ascertainment of the content of foreign law
3. The application of foreign law and the consequences of the lack of proof of foreign law
III. The Future – the Process of Codification of Dutch Private International Law
I. Application of Foreign Law by Judicial Authorities
2. Legal or factual nature granted to foreign law in the specific country dealt with
3. The role played by the judge and by the parties as regards the plea and / or proof of foreign law and the possibility / obligation of co-operation between them as regards these two issues
4. The means referred to by the court and / or by the parties as regards the ascertainment of the content of foreign law
5. When and how foreign law is deemed proved? Meaning of proof in a reasonable time
6. How is foreign law applied by the court? How are gaps flled?
7. Failure to prove foreign law
8. When and how may the application of foreign law be rejected by the court?
9. Possibilities of review of the judgment rendered on the basis of foreign law by Upper Courts
10. Is there any bilateral / multilateral convention as regards the proof of foreign law applicable? How do they work in practice?
II. Application of Foreign Law by Non-Judicial Authorities
2. General Register Office
Application of Foreign Law
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