Foreign Law (Application) and Foreign Law (Ascertainment): Difference between pages

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by ''[[Clemens Trautmann]]''
by ''[[Clemens Trautmann]]''


== 1. Object, classification and relevance ==
== 1. Object, terminology and relevance ==


Foreign law becomes applicable in a domestic court by virtue of a [[Private International Law (PIL)|private international law]] rule of the forum law. Therefore, it is the domestic legal order which extends the applicability of a foreign rule beyond the boundaries of the enacting state.
If, in civil proceedings, foreign law is applicable by virtue of a rule of [[Private International Law (PIL)|private international law (PIL)]], the procedural law of the forum determines by whom and by which means the content of that law is to be established. The general principle that a court is deemed to have knowledge of all legal elements (''iura novit curia'') and that the parties have to introduce the factual elements of a given case (''da mihi facta'','' dabo tibi ius'') does not or at least does not fully apply to foreign law.


Traditionally, the main rationale for applying foreign law was to show courtesy towards other nations by recognizing the validity and effect of their executive, legislative and judicial acts with the expectation of reciprocity (''comitas gentium''). Developed by Dutch theorists in the 17th century, the doctrine of ''comitas'' is still of considerable importance in common law jurisdictions while in continental jurisdictions it has been superseded by the internationalist approach originally suggested by Friedrich Carl von Savigny. This approach aims to ascertain the proper ‘seat’ for every legal relation (principle of closest connection) and thereby implies that all private law systems are on an equal footing.
The objective of the ascertainment of foreign law is to efficiently provide the court with all information necessary to apply and interpret foreign law in an equivalent way as would be done by a court in the state of origin (''aliena lege artis''). The European jurisdictions have chosen rather different paths towards this goal.


The continental jurisdictions basically concur that a foreign norm is to be considered a rule of law. In contrast, common law jurisdictions regard foreign law as a question of fact (fact doctrine). Until recently, French and Spanish jurisprudence also adhered to the latter position but this has since been abandoned. The relevance of such classification is however limited as no jurisdiction consistently follows the dichotomy of law and fact with regard to the treatment of foreign rules. For instance, many jurisdictions which recognize the legal quality of foreign law still require the parties to prove its content in a way similar to adducing evidence of facts. On the other hand, English appeal courts are able to comprehensively review the correct application of foreign law despite the principle that appellate courts are bound by the factual findings of the lower court. Therefore, classification as question of law or fact is increasingly considered a fiction necessary to render a hybrid matter manageable in civil proceedings.
The terminology reflects the differing views as to the legal or factual nature of foreign law ([[Foreign Law (Application)|foreign law (application)]]) and its consequences for the procedure of ascertainment. In common law jurisdictions the ascertainment of foreign law is referred to as ''proof of foreign law'', owing to the presumed factual nature. French and Spanish law, although they have abandoned the fact doctrine, continue to use the terms ''preuve'' ''de la loi étrangère'' and ''prueba del derecho extranjero''. In contrast, the German and Italian terms are, respectively, ''Ermittlung ausländischen Rechts'' (§ 293 ''Zivilprozessordnung'') and ''accertamento della legge straniera'' (§ 14(1) ''Legge'' 218/ 1995).


A domestic court today is required to actually apply foreign law, not simply make reference to it or apply a parallel domestic rule. It must give effect to foreign rules in the way that a court in the respective foreign state would construe and apply them (''aliena lege artis''). This concept is somewhat distinct from the theory of vested rights, conceived by Albert Venn Dicey, according to which extra-territorial effect is not given to the foreign law itself but merely to the rights which it has created and which can be ascertained like a fact. Though the vested rights theory has enjoyed considerable popularity in common law jurisdictions, its relevance has decreased. Similarly, the Italian theory of ''rinvio recettizio'' according to which foreign rules are incorporated in the domestic legal order by means of blanket norms is no longer maintained.  
The questions commonly discussed in the context of the ascertainment of foreign law include what roles and tasks the parties and the court have in establishing its content (see 2. below), which methods of establishment are available (see 3. below) and how to proceed in case the ascertainment fails (see 4. below). The relevance of these seemingly technical questions for the realization of the objectives of private international law as well as for the outcome of a litigation is not to be underestimated. Gerhard Kegel referred to the ascertainment of foreign law as the ‘secret ruler’ of private international law. Indeed, a choice of law rule can be undermined if the procedural law of the forum does not provide adequate means to establish the content of the law designated by it. Furthermore, in proceedings with an international element the final decision often hinges on the method of ascertainment or on the judicial appraisal of the information available to the court. Therefore, issues concerning the correct ascertainment of foreign law have often been reviewed on the appeal level.


The application of foreign law needs to be differentiated from situations in which the domestic court merely takes account of foreign law, as most-favoured treatment provisions or the principle of home state regulation in EU law may require. Likewise, resorting to the anti-choice rule, that is evading a decision as to which national law is applicable since all conceivable laws would lead to the same substantive result (known as ''antikiesregel ''in the Netherlands, ''équivalence'' in France and ''Offenlassen der Rechtswahl'' in Germany), does not represent an application of foreign law.
== 2. Allocation of tasks between the court and the parties ==


Surveys of the [[Hague Conference on PIL|Hague Conference on Private International Law]] show that up to five per cent of all judgments handed down involve the application of foreign law (a figure as high as ten per cent in the Netherlands). Of those cases, almost half concern family law (divorce, custody, maintenance), a quarter international commercial law and ten per cent encompassing, respectively, the law of tort (traffic accidents, product liability, defamation) and succession. In practice, however, courts tend to avoid the application of foreign law as the ascertainment of foreign law considerably complicates the handling of a given case. Therefore, courts show a preference for applying forum law (often by imputing a tacit choice of law agreement). This phenomenon has aptly been described as ‘homeward trend’ by Arthur Nussbaum.
The key question of who ascertains the applicable foreign law—the court or the parties—is generally answered in accordance with the procedural status of foreign law.


== 2. Central issues ==
If foreign law is treated as a question of fact, as in the common law jurisdictions, the ascertainment of foreign law follows the rules of evidence. As the court is generally unable to take judicial notice of factual elements (except for notorious facts), it is the parties’ task to prove the content of foreign law. More specifically, since English law presumes that foreign law is identical with the law of the forum, the burden of proof rests on the party pleading the difference. If there is a conflict of testimony, the court must provide its own interpretation of the foreign law in light of all the evidence given. On the other hand, foreign law does not need to be proved if its content is admitted, and, if evidence is uncontradicted, the court should be reluctant to reject it (except where it is patently false).


Whenever foreign law comes into play, the procedural law of the forum assumes a key role. Since it also determines how the proceedings are to be conducted in international cases (''forum regit processum''), it may establish certain procedural requirements (such as pleading) for the application or non-application of foreign law (see a) below), the means by which the content of foreign law is established ([[Foreign Law (Ascertainment)|foreign law (ascertainment)]]), the manner in which foreign law is applied (see b) below) and to what extent the application of foreign law is subject to the review of appellate courts (see c) below).
Attributing legal quality to foreign law, however, most often corresponds with a duty of the court to establish its content ''ex officio''. This is sometimes derived from the maxim ''iura novit curia'', as'' ''in Germany and Belgium. Other jurisdictions specifically prescribe an ''ex officio'' ascertainment by statute, eg Italy (Art 14(1) ''Legge'' 218/95), Austria (§ 4(1) ''Bundesgesetz über das internationale Privatrecht'') and Portugal (Art 348 no 1 ''Código civil''). Nevertheless, it is always possible and sometimes even advisable for the parties to support the court in establishing the content of foreign law. Though there is no onus of proof, the parties may have a subsidiary responsibility for the ascertainment of foreign law, as controversial contentions heighten the necessary intensity of judicial research, whereas matching statements, passivity or delay may decrease the efforts the court is required to make.


=== a) Pleading requirements and procedural agreements  ===
Some jurisdictions prefer mixed, flexible models: in France and the Scandinavian states, the courts are entitled to conduct research into foreign law ''ex officio'', but may also shift the responsibility for the ascertainment to the parties or even—especially in dispositive matters—impose a formal burden of proof. With regard to pecuniary claims, Swiss law explicitly allows the court to impose the burden of proof on the parties (Art 16(1) ''Bundesgesetz über das Internationale Privatrecht''). Conversely, Spanish law regards the model of party proof as the standard solution, with the courts nevertheless being able to establish the relevant foreign provisions on their own motion (Art 281 ''Ley de Enjuiciamento Civil'').


As regards the procedural requirements for the introduction of foreign law in civil proceedings, the European jurisdictions differ considerably. Whether a foreign law designated by a choice of law rule is actually introduced and applied depends on the procedural status and authority attached to the choice of law rules.
In provisional proceedings, the task allocation is usually modified towards the model of exclusive party proof. In order to obtain interim relief, the party who draws favourable conclusions from an applicable foreign law is generally required to furnish ''prima facie'' evidence as to its content.


In most continental jurisdictions, courts are required to apply the choice of law rules to any case with an international element and give effect to the law designated by the choice of law rules—be it the forum law or a foreign law—on their own motion (''ex officio''), irrespective of the parties’ conduct. This approach is followed by Austria, Belgium, Germany, Greece, Italy, the Netherlands, Portugal and Spain as well as the Baltic and most eastern European States.
Advocates of exclusive party proof argue that the efforts of both parties in adversarial proceedings render the best result in terms of precision and efficiency. One might object, however, that the perspective on a foreign legal practice conveyed to the judge through interest-dominated party contentions is likely to be distorted or to represent a mere amalgam of both standpoints. More importantly, a party not interested in the application of foreign law may effectively set it aside by simply failing to furnish the necessary information. Alternatively, the court may evade the burdensome application of foreign law by deeming the adduced evidence insufficient. On the other hand, in cases of a choice of law agreement in favour of a foreign law, it can rightly be said that the parties’ furnishing evidence on the chosen law is a natural consequence of the exercised party autonomy, whereas an ''ex officio'' ascertainment would lead to an externalization of costs (unless the court fees are raised in such cases). Flexible models enable the court to take the nature of the rights in dispute as well as the resources of the parties into account.


Other jurisdictions grant the parties procedural freedom of disposition in respect of the applicable law (facultative choice of law). Unless foreign law is pleaded and proved by the parties, an English judge must resolve the case by reference to English law, even if according to the rules of private international law it is governed by foreign law. As such a pleading requirement allows litigants to transform a foreign case into a domestic one (an effect which is also furthered by the presumption that foreign law is the same as English law in the absence of a pleading to the contrary), it effectively renders the choice of law rules a voluntary body of law. Conversely, the procedural law of the forum may allow the parties—as in France, Hungary and Romania—to derogate from the law designated by the relevant choice of law rule in favour of the ''lex fori'' by means of a procedural agreement (''accord procédural'').
== 3. Means of ascertainment ==


However, the continental variants of facultative choice of law, are generally subject to one condition: the matter in dispute has to be dispositive, ie permitting a settlement, which is assessed in reference to forum law. This leads to a bifurcated approach. In non-dispositive matters (especially relating to civil or marital status) the relevant choice of law rules and the designated (foreign) law need to be applied ''ex officio'', in dispositive matters the application depends on the parties’ pleading and conduct. This mixed model is also followed in Scandinavia. For dispositive matters, French jurisprudence has introduced an additional qualification: if the applicability of foreign law is not pleaded in a French court and the parties have not concluded a procedural agreement in favour of ''lex fori'', the judge is not obliged to introduce foreign law but enjoys full discretion to do so.
Which means of ascertainment are available is predominantly determined by the national rules of civil procedure. Additionally, international conventions and [[European Union]] law may provide methods for establishing the content of foreign law. Generally, it is left to the court’s discretion which of several possible methods it chooses. Factors to be taken into account include the complexity and importance of the matter at hand, the parties’ conduct and the principle of procedural economy.  


Even in jurisdictions which prescribe an ''ex officio'' application of foreign law, the concept of facultative choice of law has received considerable support in academic writing. It is argued that the quality of judicial decision making is inferior if foreign law comes into play. As suggested by Flessner and de Boer, the parties should at least have the option of having forum law applied which would accelerate the proceedings, reduce costs and render the decision more reliable. Whether such procedural freedom of disposition is reconcilable with the more confined substantive freedom of choice of law has been a frequently revisited issue which needs to be re-assessed in the course of the Europeanization of private international law (see 3. below).
According to recent studies of the [[Hague Conference on PIL]], approximately 15 per cent of European courts ascertain foreign law by conducting their own research into foreign legal sources; 20 per cent by means of international instruments for judicial assistance. The predominant method of ascertainment, however, is expert evidence (in many different manifestations).  


=== b) Application of foreign law ===
=== a) Direct consultation of foreign sources ===


It is well established in the European jurisdictions that foreign law should be applied and interpreted as would be done by a court in the state of origin (principle of ''aliena lege artis'' or origin-conform application). Foreign rules should ideally be construed in the framework of the legal system of which they form a part and in accordance with its rules of interpretation. Therefore, it is a pre-requisite that the judge gathers comprehensive information not only on statutory law but also on case law and other sources considered relevant in the state of origin. Although domestic courts are not formally bound by the interpretation preferred by courts in the state of origin, they must attach the same importance to well-established jurisprudence. Some European jurisdictions, however, tend to curtail the principle of origin-conform application for the sake of practicability, as they subject the ascertainment of foreign law to the rules of evidence. Thus, the established content of foreign law may depend on which party has the onus of proof or whether the court is bound by the parties’ congruent pleading of foreign law.
If ascertainment on the court’s own motion is permitted, courts can consult foreign statutes, case law and academic writings directly. This method of ascertainment has been of growing importance in the past decade. It has been promoted by the establishment of special court departments focusing on cases with international elements, where judges are often familiar with standard issues under foreign law. In addition, the accessibility of documentation on foreign law has improved. There are bilingual editions of statutes, country reports, collections of legal opinions on foreign law and—of rapidly increasing relevance—online resources such as government-run legislation websites and international legal databases which are very helpful in this respect. In many states, judges may also ask the foreign ministries or ministries of justice for assistance in obtaining material.  


There is no clear consensus regarding the extent to which a judge applying foreign law is entitled to further develop that law by means of interpretation and analogy. The restrictive formula suggested by Werner Goldschmidt, according to which the judge who applies foreign law is a photographer whilst when applying his own law he is an architect, is regarded as too narrow (nevertheless, judges tend to apply foreign law in a rather descriptive and formalistic manner in practice). An interpretation of foreign law is virtually inevitable as the relevant foreign law rarely provides rules and precedents which cover the case at hand completely. As for establishing new case law and testing the constitutionality of a foreign rule, the preponderant view is that out of respect for the sovereignty of a foreign country, domestic courts should be most reluctant in doing so. The contrary position holds that a domestic judge should have the same competence as the respective foreign judge in a comparable situation, which may very well include introducing new case law or conducting a constitutionality test.
Under English law, however, courts are not allowed to conduct their own research into foreign law and may take notice of documentation on foreign law only as part of expert evidence. One practically irrelevant exception where documentary proof is admitted is contained in s 4(2) Civil Evidence Act 1972 that enables the use of an earlier English decision on foreign law. Recent jurisprudence shows, however, that there is certain willingness on the part of English judges to provide legal input and consult foreign sources as part of their assessment of the adduced evidence.


=== c) Review by appellate courts ===
=== b) Assistance of experts ===


There are considerable differences between the national approaches when it comes to the question whether the highest court in a given country has the power to review the application of foreign law by a lower court. In Austria, Belgium, Greece and Italy as well as in Germany (as of a recent amendment to s 545 of the Code of Civil Procedure), the highest courts are allowed to verify a lower court’s determination of the substance of foreign law without any restriction. France, the Netherlands and Spain, however, preclude review by their highest courts. The reasons given for such restriction are, inter alia, that the highest courts’ primary task is securing the uniform interpretation of law, not effecting justice in each single case, and that high courts are neither qualified nor suited for the ascertainment and review of foreign law. In France and Spain, the restriction may also be a spillover from the long prevailing fact doctrine, for questions of fact are generally exempt from judicial review of the upper courts. In contrast, English courts allow a review of foreign law despite adhering to the fact doctrine. In this respect, they consider foreign law to be a ‘question of fact of a peculiar kind’ (''Parkasho'' ''v'' ''Singh'' [1968] P 233 (250)) which—unlike ordinary findings on facts—can more easily be assessed by a judge experienced in judicial discourse. French law acknowledges cases of ''dénaturation'' in which the lower court’s decision clearly contradicts the wording of foreign statutory law and is therefore exceptionally subject to cassation. It should finally be noted that even in jurisdictions which do not provide for a review of foreign law, an indirect examination may nevertheless be possible as objections to procedural errors are generally admissible and the erroneous application of foreign law may result from procedural deficiencies in ascertaining that law.  
The content of foreign law is very commonly established with the assistance of experts. However, there is huge variance as to the relevant procedural rules as well as to the role, background and qualification of such experts. In particular, one can distinguish between whether the expert is party-appointed or court-appointed and whether the information is delivered in an oral or written form.


== 3. Tendencies ==
In Austria, Germany, the Netherlands and Switzerland (and to a lesser extent in Italy), the experts are appointed by the court. Their opinions, which are usually submitted in writing, have considerable weight for the judicial decision; therefore the procedural framework is similar to the rules of evidence. In particular, the parties have the right to question the experts, which may necessitate their personal appearance in court. Usually, those experts reside in the country where the litigation takes place and are employed at institutes specializing in comparative law such as the Max Planck Institute for Comparative and International Private Law (Hamburg), the Swiss Institute of Comparative Law (Lausanne), the ''Internationaal Juridisch Instituut ''(The Hague) or in university departments.  


It is commonly expected that the number of civil cases with international elements (intra-union as well as third-state cases) is going to increase further as globalization progresses. The application of foreign law will therefore remain an important part of the European civil practice, particularly since there are few if any feasible alternative options. [[Uniform Law|Uniform law]] will likely remain confined to special matters of international commerce. A strict parallelism of forum and applicable law (''lex fori in foro proprio'') is not advisable as this would limit the available fora to one and unreasonably restrict access to justice. For intra-union cases, models like a European variant of ''forum non conveniens'' (courts abstaining from exercising their jurisdiction if the law of another Member State is applicable) or a preliminary ruling modelled on Art 267 TFEU/234 EC and the British Law Ascertainment Act 1859 (a comparable court in the Member State whose law is applicable gives a binding opinion) have been suggested.
Written expert opinions are recognized as documentary evidence of foreign law in France (''certificat de coutume''), Spain (''certificado de ley'') and Italy (''testimonianza sul diritto straniero''). Such opinions are mostly commissioned by one of the parties, though, and are therefore subject to special scrutiny by the courts. They are typically prepared by consular authorities or foreign legal practitioners or academics.  


As regards the review of foreign law by appellate courts, it is increasingly postulated that such review be allowed without reserve. Guidelines introduced by the higher courts would help lower courts to deal with frequently recurring matters under foreign law (such as the divorce of certain nationals or the treatment of certain types of foreign companies, matters which may be necessary in the wake of ECJ jurisprudence regarding the [[Freedom of Establishment|freedom of establishment]] of companies).
Under English procedural law, foreign law is proved by expert evidence, ie by witnesses who are suitably qualified on account of their knowledge or experience (s 4(1) Civil Evidence Act 1972). Traditionally, oral evidence is adduced and, if necessary, the opposing party-appointed experts are cross-examined in court. The reformed English law of civil procedure, though, requires evidence in a written report unless the court directs otherwise (r 35.5(1) Civil Procedure Rules (CPR)). Additionally, it underscores that the expert’s duty to help the court on matters within their expertise overrides instructions by the parties (r 35.3 CPR). Another novelty is the possibility for the court to direct that evidence be given by a single joint expert (r 36.7 CPR). In these respects, English law is somewhat convergent with continental ascertainment methods. It is to be seen, however, whether these options will be accepted in practice. Since cases turning on issues of foreign law are often complex and strongly contested, it is conceivable that courts will continue to prefer the traditional adversarial approach.


It is open to debate whether the Europeanization of [[Private International Law (PIL)|private international law]], in particular the EU regulations on the law applicable to contractual and non-contractual relations and maintenance obligations, prompts a re-assessment or even harmonization of the Member States’ procedural rules on the application and ascertainment of foreign law. There is a widespread assumption that these rules remain unaffected since ‘evidence and procedure’ are exempt from the material scope of the regulations (Art 1(3) Rome I and Rome II Regulation). The contrary position maintains that any form of facultative choice of law is irreconcilable with European private international law, which is aimed at market integration and decisional harmony. The regulations explicitly state the objective that the conflict of law rules in the Member States should ‘designate the same national law irrespective of the country of the court in which an action is brought’ (recital 6 Rome I and Rome II Regulation). Jurisprudence of the ECJ suggests a differentiated approach: in the absence of Union law governing the procedure, national law decides the extent to which Member State courts must raise a question of Union law on their own motion (ECJ Case 430/93 – ''van Schijndel'' ''v'' ''Stichting Pensioenfonds voor Fysiotherapeuten'' [1995] ECR 4705). As far as domestic law allows an ''ex officio'' application, the [[Principle of Effectiveness|principle of effectiveness]] requires that a national court makes use of its powers and introduces a foreign law designated by an EU regulation. Thus, a discretionary approach as found in France is not in line with EU law. Also, introduction of foreign law for the first time at the appeal level may not be precluded (as is a long-standing practice in England and Spain) if appeal courts have the discretion to admit new factual or legal matters. However, where national procedural rules prevent the ''ex officio'' application of a designated foreign law, the principle of effectiveness may require the non-application of such rules to ensure the protection of weaker parties as afforded by EU law (ECJ Case 240/98 – ''Océano Grupo'' ''Editorial SA'' ''v'' ''Roció Murciano Quintero'' [2000] ECR 4941). Therefore, facultative choice of law is inadmissible with regard to conflict rules favouring consumers (Art 6 Rome I Regulation), employees (Art 8 Rome I Regulation) and certain types of maintenance creditors (Art 8(3) Hague Maintenance Protocol, Art 15 Reg 4/2009). Otherwise, the existing national provisions on the introduction and application of foreign law can generally be reconciled with EU law.
=== c) International instruments ===


The review clause of Art 30 Rome II Regulation provides for a study on the effects of the way in which foreign law is treated in the different jurisdictions and on the extent to which courts in the Member States apply foreign law in practice. The annex of the Rome II Regulation contains a statement of the [[European Commission]] that, depending on the outcome of a study on the application of foreign law, it is prepared to take appropriate measures. As a preliminary assessment, it can be stated that the heterogeneous procedural rules in the European jurisdictions on the application of foreign law strongly conflict with the objective that the same national law is applied to a given case irrespective of the Member State in which an action is brought. The principle of effectiveness, as currently interpreted by the ECJ, is not capable of effecting a sufficient harmonization. Therefore, it seems likely that the European Commission will pursue a harmonization of the national rules on the application of foreign law within the next few years.
Among the international instruments for the ascertainment of foreign law, the European Convention on Information on Foreign Law of 1968 (London Convention), which was adopted under the auspices of the [[Council of Europe (Harmonization of Private Law)|Council of Europe]], is by far the most relevant. Besides this pan-European instrument with over 40 contracting European States (to which Mexico and Costa Rica also acceded), various bilateral conventions on international legal information exist.
 
The London Convention provides a system through which national courts can submit abstract questions on the laws and procedures of other contracting states (Art 1). Via national transmitting and receiving agencies (typically, ministries of justice or foreign affairs), the requests are conveyed to foreign authorities or legal counsels that draw up the replies free of charge (Arts 2–6, 15). The non-binding replies consist of the statutes, decisions and extracts from doctrinal works pertinent to the case at hand, which may be accompanied by additional comments (Arts 7, 8). As to the practical value of the London Convention, there is no clear assessment. The last survey, prepared by the Hague Conference on Private International Law with 2006 data, suggests there are up to 200 requests per year. Although the process is slightly impeded by the need for translations (the request as well as the reply are to be issued in the language of the requested state), the average handling time is only two months.
 
For some special subject matters, direct communication between judges of different countries on questions of foreign law is possible, most notably in cases of international child abduction ([[Child Law (International)|child law (international)]]). Under the Hague Convention on the Civil Aspects of International Child Abduction, a network of liaison judges has been established. Another special instrument is the 1859 British Law Ascertainment Act, which allows English courts to refer questions regarding the law of a Commonwealth state to the supreme court of the relevant country.
 
=== d) European Judicial Network ===
 
For intra-Union cases, information on the applicable foreign law can be obtained through the [[European Judicial Network in Civil and Commercial Matters|European Judicial Network in Civil and Commercial Matters]] which was established by the Council under Decision 2001/470/EC of 28 May 2001 and recently amended by Decision 568/ 2009/EC of the [[European Parliament]] and of the Council ([[Council and the European Council]]) of 18 June 2009. This reform must be seen as a supplement to the EU legislation in the field of [[Private International Law (PIL)|private international law (PIL)]] as it tries to facilitate the ascertainment process whenever the law of another Member State is applicable by virtue of conflicts rules in an EU instrument or international convention (recital 8 Decision 568/ 2009/EC). Article 3(2)(b) allows courts as well as other authorities to apply to the network for information on the content of the applicable law of another Member State. Thus, the network enables direct judicial communication (established through contact points) on matters of foreign law. As the network is more flexible, it may replace the London Convention in intra-Union cases, though its existence and potential are still relatively unknown in court practice.
 
== 4. Failure to ascertain the applicable foreign law ==
 
There is no clear benchmark for determining at what stage the content of foreign law is sufficiently ascertained. The standards applied in the European jurisdictions vary considerably (even within the jurisprudence of a given Member State). Sometimes a judge may be satisfied with a mere reproduction of the relevant foreign statute, while other courts require detailed information as to its interpretation and the foreign legal practice. If the ascertainment of foreign law follows the rules on evidence, a subjective standard will be applied and the decision is left to the autonomous appraisal of the judge. Occasionally, it can be observed that courts will jump to the conclusion that the foreign law cannot be ascertained. Indeed, it may sometimes be difficult to differentiate in what cases the provided material does not convey a clear picture of the legal framework in the country of origin (descriptive problem) and in what situations a given rule needs to be interpreted in order to be applied to the case at hand (interpretative problem).
 
If the law designated by the relevant choice of law rule cannot be ascertained, the European jurisdictions provide for the application of a subsidiary law. This approach is even followed in jurisdictions adhering to the view that foreign law needs to be pleaded and proved like a question of fact, although one might logically assume that a ''non liquet'' should consequently result in the dismissal of the claim or the defence relying on foreign law. Only in provisional proceedings does the failure to substantiate the content of the applicable foreign law regularly lead to the dismissal of the application.
 
Which law is to be applied as a subsidiary solution has been a much debated question. For the sake of practicability, most European jurisdictions apply the substantive law of the forum, either with statutory support as in Austria (§ 4(2) ''Bundesgesetz über das internationale Privatrecht'') or Belgium (Art 15 § 2 ''Code de droit international privé'') or else as a default solution established ''praeter legem'' by jurisprudence as in Germany, France, Spain and—within a different framework—England. French legal commentators justify this solution with the ''vocation générale'' of forum law. Under English law, it is backed by the presumption of similarity (although its plausibility has been questioned of late): in case the proof fails, it is assumed that foreign law is the same as English law.
 
By contrast, Italian and Portuguese law stipulate the application of the next available law that is declared applicable by an alternative or subsidiary choice of law rule; only in the absence of such law does the ''lex fori'' apply (Art 14(2) ''Legge'' 218/95; Art 23(2) ''Código civil''). This approach has received widespread academic support as it safeguards the objectives of private international law, especially the international harmony of judgments, to the largest possible extent. Other academic proposals favour the application of a closely related law stemming from the same legal tradition or else from [[Uniform Law|uniform law]] or [[General Principles of Law|general principles of law]].
 
== 5. Tendencies ==
 
Recent proposals have focused on facilitating the process of ascertaining foreign law by means of intensified judicial cooperation and electronic media. Even if these proposals demonstrate considerable potential for improvement of the status quo, the ascertainment of foreign law will remain burdensome and a weak spot with regard to the practical realization of private international law objectives and decisional harmony.
 
The [[Hague Conference on PIL|Hague Conference on Private International Law]] conducted preparatory work for a convention on the international information on foreign law, which is intended to operate on a global scale and make use of digital communication media (as opposed to the London Convention and existing regional or bilateral instruments). Although the efforts have recently been reduced and the Hague Conference is now focusing on facilitating access to foreign law in the context of the existing Hague conventions, this item will be retained on the organization’s agenda.
 
As for intra-Union cases, it will be interesting to observe the acceptance and performance of the [[European Judicial Network in Civil and Commercial Matters]] after its recent reform (effective from 1 January 2011). As the Europeanization of private international law progresses, it is conceivable that the network will be further developed to become the standard information instrument wherever the law of another Member State is applicable. In academic literature, even more radical suggestions have been made which would operate within the framework of the European Area of Freedom, Security and Justice, eg procedures for binding or non-binding preliminary rulings handed down by courts whose forum law is applicable in a given case.
 
There is a tendency to open international instruments for the ascertainment of foreign law to other legal professions and to make information on foreign law publicly available to citizens in their respective language. This trend could be observed in the deliberations to the Hague Conference and has been realized in the European Judicial Network: professional associations representing lawyers, notaries, bailiffs and other legal practitioners dealing with judicial cooperation in civil and commercial matters will also be able to participate in the determination process (Art 2(1)(e) Decision 568/2009/EC). One of the network’s main tasks is the implementation of an information system for the public in cross-border litigation.
 
The Europeanization of private international law will likely impact the national rules on ascertainment of foreign law in the Member States. The effect of these rules for the practical application of a foreign law designated by an EU conflicts rule will also be covered by the study provided for in Art 30 Rome II Regulation ([[Foreign Law (Application)|foreign law (application)]]). Under the EU regulations, it is doubtful whether the complete task of establishing the content of foreign law can solely be imposed on the parties, for this approach involves the risk that the ascertainment fails due to a lack of resources and that European choice of law rules are thus rendered ineffective. The jurisprudence of the [[European Court of Justice (ECJ)]] instead suggests that national courts have to intervene and exhaust all instruments available to them ''ex officio'' if the establishment of a factor relevant for the application of Union law otherwise fails (ECJ Case 526/04 – ''Laboratoires Boiron'', [2006] ECR 7529). Other issues are the standard of sufficient proof and the effects of a failure to ascertain foreign law, both of which might have to be harmonized in order to secure the chief legislative goal of the European regulations, namely the foreseeable application of the same national law regardless of the forum.


==Literature==
==Literature==
Imre Zajtay, ‘The Application of Foreign Law’ in IECL III/1 (1970) ch&nbsp;14; Axel Flessner, ‘Fakultatives Kollisionsrecht’ (1970) 34 RabelsZ 547; Ted M de Boer, ‘Facultative Choice of Law—The Procedural Status of Choice-of-Law Rules and Foreign Law’ (1996) 227 Recueil des Cours 223; Richard Fentiman, ''Foreign Law in English Courts'' (1998); Maarit Jänterä-Jareborg, ‘Foreign Law in National Courts’ (2003) 304 Recueil des Cours 182; Sofie Geeroms, ''Foreign Law in Civil Litigation ''(2004); Serge Billarant, ‘The French Diptych on Foreign Law: An Analysis Through its Most Recent Retouching (2006) 8 Yearbook of Private International Law 213; Hague Conference for Private International Law, ''Feasibility Study on the Treatment of Foreign Law'','' Summary of the Responses to the Questionnaire'' (Prel Doc No 9A/B of March 2008); Clemens Trautmann, ''Europäisches Kollisionsrecht und ausländisches Recht im nationalen Zivilverfahren'' (2011).</div>
Richard Fentiman, ''Foreign Law in English Courts'' (1998); Oliver Remien, ‘Iura novit curia und die Ermittlung fremden Rechts im europäischen Rechtsraum der Artt 61ff EGV—für ein neues Vorabentscheidungsverfahren bei mitgliedstaatlichen Gerichten’ in Jürgen Basedow and others (eds), ‘Aufbruch nach Europa’ (2001) 75 Jahre Max-Planck-Institut für Privatrecht 617; Maarit Jänterä-Jareborg, ‘Foreign Law in National Courts’ (2003) 304 Recueil des Cours 182; Sofie Geeroms, ''Foreign Law in Civil Litigation'' (2004); Lord Collins and others (eds), ''Dicey'','' Morris and Collins on the Conflict of Laws'','' vol&nbsp;I'' (14th&nbsp;edn, 2006) ch&nbsp;9 (Proof of Foreign Law); Hague Conference on Private International Law: ''Report on judicial communications in relation to international child protection'' (Prel Doc No&nbsp;8 of October 2006); ''Feasibility study on the treatment of foreign law'' (Prel Doc No&nbsp;21A of March 2007); ''Summary of the responses to the questionnaire'' (Prel Doc No&nbsp;9A/B of March 2008); ''Accessing the content of foreign law'','' Report of the meeting of experts on global co-operation on the provision of online legal information on national laws'' (Prel Doc No&nbsp;11B of March 2009); Clemens Trautmann, ''Europäisches Kollisionsrecht und ausländisches Recht im nationalen Zivilverfahren'' (2011).</div>




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Latest revision as of 18:39, 5 June 2025

by Clemens Trautmann

1. Object, terminology and relevance

If, in civil proceedings, foreign law is applicable by virtue of a rule of private international law (PIL), the procedural law of the forum determines by whom and by which means the content of that law is to be established. The general principle that a court is deemed to have knowledge of all legal elements (iura novit curia) and that the parties have to introduce the factual elements of a given case (da mihi facta, dabo tibi ius) does not or at least does not fully apply to foreign law.

The objective of the ascertainment of foreign law is to efficiently provide the court with all information necessary to apply and interpret foreign law in an equivalent way as would be done by a court in the state of origin (aliena lege artis). The European jurisdictions have chosen rather different paths towards this goal.

The terminology reflects the differing views as to the legal or factual nature of foreign law (foreign law (application)) and its consequences for the procedure of ascertainment. In common law jurisdictions the ascertainment of foreign law is referred to as proof of foreign law, owing to the presumed factual nature. French and Spanish law, although they have abandoned the fact doctrine, continue to use the terms preuve de la loi étrangère and prueba del derecho extranjero. In contrast, the German and Italian terms are, respectively, Ermittlung ausländischen Rechts (§ 293 Zivilprozessordnung) and accertamento della legge straniera (§ 14(1) Legge 218/ 1995).

The questions commonly discussed in the context of the ascertainment of foreign law include what roles and tasks the parties and the court have in establishing its content (see 2. below), which methods of establishment are available (see 3. below) and how to proceed in case the ascertainment fails (see 4. below). The relevance of these seemingly technical questions for the realization of the objectives of private international law as well as for the outcome of a litigation is not to be underestimated. Gerhard Kegel referred to the ascertainment of foreign law as the ‘secret ruler’ of private international law. Indeed, a choice of law rule can be undermined if the procedural law of the forum does not provide adequate means to establish the content of the law designated by it. Furthermore, in proceedings with an international element the final decision often hinges on the method of ascertainment or on the judicial appraisal of the information available to the court. Therefore, issues concerning the correct ascertainment of foreign law have often been reviewed on the appeal level.

2. Allocation of tasks between the court and the parties

The key question of who ascertains the applicable foreign law—the court or the parties—is generally answered in accordance with the procedural status of foreign law.

If foreign law is treated as a question of fact, as in the common law jurisdictions, the ascertainment of foreign law follows the rules of evidence. As the court is generally unable to take judicial notice of factual elements (except for notorious facts), it is the parties’ task to prove the content of foreign law. More specifically, since English law presumes that foreign law is identical with the law of the forum, the burden of proof rests on the party pleading the difference. If there is a conflict of testimony, the court must provide its own interpretation of the foreign law in light of all the evidence given. On the other hand, foreign law does not need to be proved if its content is admitted, and, if evidence is uncontradicted, the court should be reluctant to reject it (except where it is patently false).

Attributing legal quality to foreign law, however, most often corresponds with a duty of the court to establish its content ex officio. This is sometimes derived from the maxim iura novit curia, as in Germany and Belgium. Other jurisdictions specifically prescribe an ex officio ascertainment by statute, eg Italy (Art 14(1) Legge 218/95), Austria (§ 4(1) Bundesgesetz über das internationale Privatrecht) and Portugal (Art 348 no 1 Código civil). Nevertheless, it is always possible and sometimes even advisable for the parties to support the court in establishing the content of foreign law. Though there is no onus of proof, the parties may have a subsidiary responsibility for the ascertainment of foreign law, as controversial contentions heighten the necessary intensity of judicial research, whereas matching statements, passivity or delay may decrease the efforts the court is required to make.

Some jurisdictions prefer mixed, flexible models: in France and the Scandinavian states, the courts are entitled to conduct research into foreign law ex officio, but may also shift the responsibility for the ascertainment to the parties or even—especially in dispositive matters—impose a formal burden of proof. With regard to pecuniary claims, Swiss law explicitly allows the court to impose the burden of proof on the parties (Art 16(1) Bundesgesetz über das Internationale Privatrecht). Conversely, Spanish law regards the model of party proof as the standard solution, with the courts nevertheless being able to establish the relevant foreign provisions on their own motion (Art 281 Ley de Enjuiciamento Civil).

In provisional proceedings, the task allocation is usually modified towards the model of exclusive party proof. In order to obtain interim relief, the party who draws favourable conclusions from an applicable foreign law is generally required to furnish prima facie evidence as to its content.

Advocates of exclusive party proof argue that the efforts of both parties in adversarial proceedings render the best result in terms of precision and efficiency. One might object, however, that the perspective on a foreign legal practice conveyed to the judge through interest-dominated party contentions is likely to be distorted or to represent a mere amalgam of both standpoints. More importantly, a party not interested in the application of foreign law may effectively set it aside by simply failing to furnish the necessary information. Alternatively, the court may evade the burdensome application of foreign law by deeming the adduced evidence insufficient. On the other hand, in cases of a choice of law agreement in favour of a foreign law, it can rightly be said that the parties’ furnishing evidence on the chosen law is a natural consequence of the exercised party autonomy, whereas an ex officio ascertainment would lead to an externalization of costs (unless the court fees are raised in such cases). Flexible models enable the court to take the nature of the rights in dispute as well as the resources of the parties into account.

3. Means of ascertainment

Which means of ascertainment are available is predominantly determined by the national rules of civil procedure. Additionally, international conventions and European Union law may provide methods for establishing the content of foreign law. Generally, it is left to the court’s discretion which of several possible methods it chooses. Factors to be taken into account include the complexity and importance of the matter at hand, the parties’ conduct and the principle of procedural economy.

According to recent studies of the Hague Conference on PIL, approximately 15 per cent of European courts ascertain foreign law by conducting their own research into foreign legal sources; 20 per cent by means of international instruments for judicial assistance. The predominant method of ascertainment, however, is expert evidence (in many different manifestations).

a) Direct consultation of foreign sources

If ascertainment on the court’s own motion is permitted, courts can consult foreign statutes, case law and academic writings directly. This method of ascertainment has been of growing importance in the past decade. It has been promoted by the establishment of special court departments focusing on cases with international elements, where judges are often familiar with standard issues under foreign law. In addition, the accessibility of documentation on foreign law has improved. There are bilingual editions of statutes, country reports, collections of legal opinions on foreign law and—of rapidly increasing relevance—online resources such as government-run legislation websites and international legal databases which are very helpful in this respect. In many states, judges may also ask the foreign ministries or ministries of justice for assistance in obtaining material.

Under English law, however, courts are not allowed to conduct their own research into foreign law and may take notice of documentation on foreign law only as part of expert evidence. One practically irrelevant exception where documentary proof is admitted is contained in s 4(2) Civil Evidence Act 1972 that enables the use of an earlier English decision on foreign law. Recent jurisprudence shows, however, that there is certain willingness on the part of English judges to provide legal input and consult foreign sources as part of their assessment of the adduced evidence.

b) Assistance of experts

The content of foreign law is very commonly established with the assistance of experts. However, there is huge variance as to the relevant procedural rules as well as to the role, background and qualification of such experts. In particular, one can distinguish between whether the expert is party-appointed or court-appointed and whether the information is delivered in an oral or written form.

In Austria, Germany, the Netherlands and Switzerland (and to a lesser extent in Italy), the experts are appointed by the court. Their opinions, which are usually submitted in writing, have considerable weight for the judicial decision; therefore the procedural framework is similar to the rules of evidence. In particular, the parties have the right to question the experts, which may necessitate their personal appearance in court. Usually, those experts reside in the country where the litigation takes place and are employed at institutes specializing in comparative law such as the Max Planck Institute for Comparative and International Private Law (Hamburg), the Swiss Institute of Comparative Law (Lausanne), the Internationaal Juridisch Instituut (The Hague) or in university departments.

Written expert opinions are recognized as documentary evidence of foreign law in France (certificat de coutume), Spain (certificado de ley) and Italy (testimonianza sul diritto straniero). Such opinions are mostly commissioned by one of the parties, though, and are therefore subject to special scrutiny by the courts. They are typically prepared by consular authorities or foreign legal practitioners or academics.

Under English procedural law, foreign law is proved by expert evidence, ie by witnesses who are suitably qualified on account of their knowledge or experience (s 4(1) Civil Evidence Act 1972). Traditionally, oral evidence is adduced and, if necessary, the opposing party-appointed experts are cross-examined in court. The reformed English law of civil procedure, though, requires evidence in a written report unless the court directs otherwise (r 35.5(1) Civil Procedure Rules (CPR)). Additionally, it underscores that the expert’s duty to help the court on matters within their expertise overrides instructions by the parties (r 35.3 CPR). Another novelty is the possibility for the court to direct that evidence be given by a single joint expert (r 36.7 CPR). In these respects, English law is somewhat convergent with continental ascertainment methods. It is to be seen, however, whether these options will be accepted in practice. Since cases turning on issues of foreign law are often complex and strongly contested, it is conceivable that courts will continue to prefer the traditional adversarial approach.

c) International instruments

Among the international instruments for the ascertainment of foreign law, the European Convention on Information on Foreign Law of 1968 (London Convention), which was adopted under the auspices of the Council of Europe, is by far the most relevant. Besides this pan-European instrument with over 40 contracting European States (to which Mexico and Costa Rica also acceded), various bilateral conventions on international legal information exist.

The London Convention provides a system through which national courts can submit abstract questions on the laws and procedures of other contracting states (Art 1). Via national transmitting and receiving agencies (typically, ministries of justice or foreign affairs), the requests are conveyed to foreign authorities or legal counsels that draw up the replies free of charge (Arts 2–6, 15). The non-binding replies consist of the statutes, decisions and extracts from doctrinal works pertinent to the case at hand, which may be accompanied by additional comments (Arts 7, 8). As to the practical value of the London Convention, there is no clear assessment. The last survey, prepared by the Hague Conference on Private International Law with 2006 data, suggests there are up to 200 requests per year. Although the process is slightly impeded by the need for translations (the request as well as the reply are to be issued in the language of the requested state), the average handling time is only two months.

For some special subject matters, direct communication between judges of different countries on questions of foreign law is possible, most notably in cases of international child abduction (child law (international)). Under the Hague Convention on the Civil Aspects of International Child Abduction, a network of liaison judges has been established. Another special instrument is the 1859 British Law Ascertainment Act, which allows English courts to refer questions regarding the law of a Commonwealth state to the supreme court of the relevant country.

d) European Judicial Network

For intra-Union cases, information on the applicable foreign law can be obtained through the European Judicial Network in Civil and Commercial Matters which was established by the Council under Decision 2001/470/EC of 28 May 2001 and recently amended by Decision 568/ 2009/EC of the European Parliament and of the Council (Council and the European Council) of 18 June 2009. This reform must be seen as a supplement to the EU legislation in the field of private international law (PIL) as it tries to facilitate the ascertainment process whenever the law of another Member State is applicable by virtue of conflicts rules in an EU instrument or international convention (recital 8 Decision 568/ 2009/EC). Article 3(2)(b) allows courts as well as other authorities to apply to the network for information on the content of the applicable law of another Member State. Thus, the network enables direct judicial communication (established through contact points) on matters of foreign law. As the network is more flexible, it may replace the London Convention in intra-Union cases, though its existence and potential are still relatively unknown in court practice.

4. Failure to ascertain the applicable foreign law

There is no clear benchmark for determining at what stage the content of foreign law is sufficiently ascertained. The standards applied in the European jurisdictions vary considerably (even within the jurisprudence of a given Member State). Sometimes a judge may be satisfied with a mere reproduction of the relevant foreign statute, while other courts require detailed information as to its interpretation and the foreign legal practice. If the ascertainment of foreign law follows the rules on evidence, a subjective standard will be applied and the decision is left to the autonomous appraisal of the judge. Occasionally, it can be observed that courts will jump to the conclusion that the foreign law cannot be ascertained. Indeed, it may sometimes be difficult to differentiate in what cases the provided material does not convey a clear picture of the legal framework in the country of origin (descriptive problem) and in what situations a given rule needs to be interpreted in order to be applied to the case at hand (interpretative problem).

If the law designated by the relevant choice of law rule cannot be ascertained, the European jurisdictions provide for the application of a subsidiary law. This approach is even followed in jurisdictions adhering to the view that foreign law needs to be pleaded and proved like a question of fact, although one might logically assume that a non liquet should consequently result in the dismissal of the claim or the defence relying on foreign law. Only in provisional proceedings does the failure to substantiate the content of the applicable foreign law regularly lead to the dismissal of the application.

Which law is to be applied as a subsidiary solution has been a much debated question. For the sake of practicability, most European jurisdictions apply the substantive law of the forum, either with statutory support as in Austria (§ 4(2) Bundesgesetz über das internationale Privatrecht) or Belgium (Art 15 § 2 Code de droit international privé) or else as a default solution established praeter legem by jurisprudence as in Germany, France, Spain and—within a different framework—England. French legal commentators justify this solution with the vocation générale of forum law. Under English law, it is backed by the presumption of similarity (although its plausibility has been questioned of late): in case the proof fails, it is assumed that foreign law is the same as English law.

By contrast, Italian and Portuguese law stipulate the application of the next available law that is declared applicable by an alternative or subsidiary choice of law rule; only in the absence of such law does the lex fori apply (Art 14(2) Legge 218/95; Art 23(2) Código civil). This approach has received widespread academic support as it safeguards the objectives of private international law, especially the international harmony of judgments, to the largest possible extent. Other academic proposals favour the application of a closely related law stemming from the same legal tradition or else from uniform law or general principles of law.

5. Tendencies

Recent proposals have focused on facilitating the process of ascertaining foreign law by means of intensified judicial cooperation and electronic media. Even if these proposals demonstrate considerable potential for improvement of the status quo, the ascertainment of foreign law will remain burdensome and a weak spot with regard to the practical realization of private international law objectives and decisional harmony.

The Hague Conference on Private International Law conducted preparatory work for a convention on the international information on foreign law, which is intended to operate on a global scale and make use of digital communication media (as opposed to the London Convention and existing regional or bilateral instruments). Although the efforts have recently been reduced and the Hague Conference is now focusing on facilitating access to foreign law in the context of the existing Hague conventions, this item will be retained on the organization’s agenda.

As for intra-Union cases, it will be interesting to observe the acceptance and performance of the European Judicial Network in Civil and Commercial Matters after its recent reform (effective from 1 January 2011). As the Europeanization of private international law progresses, it is conceivable that the network will be further developed to become the standard information instrument wherever the law of another Member State is applicable. In academic literature, even more radical suggestions have been made which would operate within the framework of the European Area of Freedom, Security and Justice, eg procedures for binding or non-binding preliminary rulings handed down by courts whose forum law is applicable in a given case.

There is a tendency to open international instruments for the ascertainment of foreign law to other legal professions and to make information on foreign law publicly available to citizens in their respective language. This trend could be observed in the deliberations to the Hague Conference and has been realized in the European Judicial Network: professional associations representing lawyers, notaries, bailiffs and other legal practitioners dealing with judicial cooperation in civil and commercial matters will also be able to participate in the determination process (Art 2(1)(e) Decision 568/2009/EC). One of the network’s main tasks is the implementation of an information system for the public in cross-border litigation.

The Europeanization of private international law will likely impact the national rules on ascertainment of foreign law in the Member States. The effect of these rules for the practical application of a foreign law designated by an EU conflicts rule will also be covered by the study provided for in Art 30 Rome II Regulation (foreign law (application)). Under the EU regulations, it is doubtful whether the complete task of establishing the content of foreign law can solely be imposed on the parties, for this approach involves the risk that the ascertainment fails due to a lack of resources and that European choice of law rules are thus rendered ineffective. The jurisprudence of the European Court of Justice (ECJ) instead suggests that national courts have to intervene and exhaust all instruments available to them ex officio if the establishment of a factor relevant for the application of Union law otherwise fails (ECJ Case 526/04 – Laboratoires Boiron, [2006] ECR 7529). Other issues are the standard of sufficient proof and the effects of a failure to ascertain foreign law, both of which might have to be harmonized in order to secure the chief legislative goal of the European regulations, namely the foreseeable application of the same national law regardless of the forum.

Literature

Richard Fentiman, Foreign Law in English Courts (1998); Oliver Remien, ‘Iura novit curia und die Ermittlung fremden Rechts im europäischen Rechtsraum der Artt 61ff EGV—für ein neues Vorabentscheidungsverfahren bei mitgliedstaatlichen Gerichten’ in Jürgen Basedow and others (eds), ‘Aufbruch nach Europa’ (2001) 75 Jahre Max-Planck-Institut für Privatrecht 617; Maarit Jänterä-Jareborg, ‘Foreign Law in National Courts’ (2003) 304 Recueil des Cours 182; Sofie Geeroms, Foreign Law in Civil Litigation (2004); Lord Collins and others (eds), Dicey, Morris and Collins on the Conflict of Laws, vol I (14th edn, 2006) ch 9 (Proof of Foreign Law); Hague Conference on Private International Law: Report on judicial communications in relation to international child protection (Prel Doc No 8 of October 2006); Feasibility study on the treatment of foreign law (Prel Doc No 21A of March 2007); Summary of the responses to the questionnaire (Prel Doc No 9A/B of March 2008); Accessing the content of foreign law, Report of the meeting of experts on global co-operation on the provision of online legal information on national laws (Prel Doc No 11B of March 2009); Clemens Trautmann, Europäisches Kollisionsrecht und ausländisches Recht im nationalen Zivilverfahren (2011).

Retrieved from Foreign Law (Application) – Max-EuP 2012 on 19. July 2025.

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