Part III

THE APPLICATION OF FOREIGN LAW
IN CIVIL MATTERS
IN THE EU MEMBER STATES
AND ITS PERSPECTIVES FOR THE FUTURE
JLS/2009/JCIV/PR/0005/E4
SYNTHESIS REPORT
WITH RECOMMENDATIONS
Avis 09-184
Lausanne, 11 July, 2011
Revised 30 September, 2011 (6.10.2011)
Dorigny CH-1015 Lausanne. Tél. +41 (0)21 692 49 11, Fax +41 (0)21 692 49 49, www.isdc.ch
Table of Contents
TABLE OF CONTENTS
Executive Summary
1.
2.
3.
5
Legal Analysis
Empirical and Statistical Analysis
Recommendations
Summary Legal Analysis
5
6
7
9
Introduction
1. The Binding Force of the Conflict of Law Rules
2. Foreign Law Ascertainment
3. Failure of Determination of Foreign Law
4. The Control of Correct Application of Foreign Law
5. Application of Foreign Law by Non-Judicial Authorities
9
9
32
38
38
39
Summary Empirical Analysis
45
1.
2.
3.
4.
45
47
49
51
Methodology
Frequency of Resort to Foreign Law
Treatment of Foreign Law in Practice
Access to Information on Foreign Law
Recommendations
1.
2.
3.
4.
5.
6.
62
Scope
Binding Power of the EU Conflict-of-Law Rules
Establishment of the Content of Applicable Foreign Law
When the Foreign Law Cannot Be Established
Review by Higher Courts
Application by Non-judicial Authorities
62
66
82
92
95
100
Appendix
List of Authors Legal Analysis
List of Authors Empirical Analysis
105
107
3
Executive Summary
EXECUTIVE SUMMARY
1.
Legal Analysis
The national legal norms currently in force in the 27 Member States of the Union, concerning the
application of foreign law in civil proceedings, are extremely heterogeneous and specific in nature.
The application of foreign law in individual Member States depends on a variety of factors, such as
the status of the conflict of law rules, the method of determining the content of the foreign law, the
consequences of impossibility of establishing the content of the foreign law and the control exercised
by the superior courts in applying foreign law.
The status of the conflict of law rules is primarily influenced by the status of the foreign element of
the transaction itself. Here, we find two very different solutions: 1) the foreign element is left to the
disposition of the parties, as it is the case typically in common law countries; or 2) it is taken into
account ex officio. Other countries again maintain mixed regimes, where the taking into account of
the foreign element depends on the issue at stake. As to the status of the conflict of law rules
themselves, we find three scenarios in existence: 1) mandatory nature, as is the case in about half of
the EU Member States; 2) optional conflict of law rules, as is the case in the UK, Ireland, Cyprus,
Malta, and Luxembourg; and 3) dual regimes (in Finland, France, Lithuania, Czech Republic, Slovakia,
Slovenia, and Sweden), where the mandatory and optional issues are distinguished according to
differing criteria. The approach chosen in relation to the conflict of law rule is sometimes
inconsistent with that applied to the foreign element, thereby providing yet another possibility for
forum shopping.
The rules on ascertaining foreign law reflect, not surprisingly, modalities of the conflict of law rules.
In countries following the Anglo-Saxon tradition of civil procedure, the parties exclusively have the
burden of “proving” foreign law. In other States (Austria, Bulgaria, Germany, Estonia, France, Italy,
Netherlands, Poland, Romania, Slovenia, Spain), the judge has the duty to establish the content of
the law ex officio. Two other modalities exist; either adapting two legal systems in accordance with
the type of conflict of law rule, or distributing the burden of establishing foreign law according to a
casuistic approach, depending on the merits of the case, the resources of the parties, the knowledge
of the judge and other factors.
Subsidiary application of the law of the forum is the most widespread solution in cases where
accessing information on foreign law is not possible. This solution has been legally established in
most Member States. Less frequent is the method of searching for an alternative law designated by
the relevant conflict of law rule or by the principle of the most closely connected legal order. In these
cases, when the content of the alternative law cannot be effectively established within a reasonable
time, as a last resort, applying the law of the forum is also possible. The failure to determine the
applicable law may sometimes result from the procedural choices of the parties. The study shows
that, apart from the common law jurisdictions, none of the Member States penalise such failure of
the parties. In common law jurisdictions, failure to plead foreign law could lead, under certain
circumstances, to a dismissal of the claim.
Notwithstanding the fragmentation of approaches to be found within the EU, certain general
principles of relevance are apparently recognised by almost all Member States. One of those
principles is that of the equal treatment of the national laws of other Member States as compared
to domestic laws. Even the small number of Member States who do not subscribe to this principle of
equality (for example because they designate rules of foreign law as being facts, rather than laws, for
5
Executive Summary
the purposes of evidence and civil procedure), permit some judicial review of decisions applying
foreign law, whether by way of appeal or of cassation. The Union-wide reality however, is that such
judicial review tends to be limited, given the restricted expertise of the reviewing judges, the
inherent deference shown by appellate or review tribunals to first instance decisions concerning
evidence and the costs involved. Similarly, the principle of equal treatment is limited, in virtually
every Member State, with practical restrictions and qualifications.
This state of affairs means, at the EU-level, that it would not be possible to achieve a uniform
application of foreign law in all Member States by means of uniform Community measures. Any EUwide rule or procedure would have different effects in each of the Member States into which it was
introduced. In other words and somewhat counter-intuitively, different measures specific to
individual legal systems will need to be adopted in order to move closer to Union-wide uniformity in
this field.
2.
Empirical and Statistical Analysis
According to our research, no Member State collects statistical data on the number of cases in which
foreign law is applied or on costs generated by the application of foreign law. The analysis is
therefore based entirely on empirical data. Legal professionals from a variety of backgrounds were
interviewed directly or through questionnaires. While aiming for an adequate representation of the
different professional groups, a mainly purposive sampling method was chosen, focusing on the type
of respondents who would most likely be applying foreign law. This sampling method combined with
varying response rates in different Member States (often below 20%) and different professions led to
an overall number of more than 550 responses. All major geographical, linguistic, cultural and legal
traditions are represented by at least one adequate response.
When looking at the frequency at which legal professionals have resorted to foreign law, most
respondents point out that there has been an increase in international cases during the last five
years, due significantly to several developments within the European Union. Only in Member States
where there is traditionally an international context (e.g. the UK), no significant increase is reported.
As to the treatment of the foreign law, it is worth pointing out one specific factor: around a third of
the respondents openly indicated (frequently or sometimes) avoiding the application of foreign law.
The main reason was the irregular access to foreign law. Other reasons given were the fear of delay
in proceedings, wish of the parties, or the counsel of the lawyer him or herself. Improving access to
foreign law might therefore lead to an increased willingness to apply foreign law.
Official sources available on the internet are the most frequently used means to ascertain foreign
law, followed by national sources containing foreign law (libraries, databases), though the rates are
very different between the Member States. Quality is the main concern in this context. The third
method of ascertaining foreign law is experts and material transmitted by foreign colleagues, which
has the disadvantage of generally being costly. It is striking that the key measures of international
cooperation (diplomatic channels, the European Judicial Network and the European Convention on
Information on Foreign Law) are not widely used by a majority of the respondents. Thus, it seems
that international cooperation has not been a very practical way to ascertain foreign law, though it is
unclear whether a lack of awareness or assumptions about the complicated nature of the
mechanisms or another reasons are decisive in this context.
6
Executive Summary
3.
Recommendations
Our empirical research having shown that large numbers of legal professionals in the European
Union frequently fail to apply foreign law because the necessary information is difficult, time
consuming and costly to obtain, our principal recommendation is that institutional and practical
steps be taken to facilitate access to foreign law. Improved access to foreign law is likely to go a long
way towards increasing application of foreign law in judicial and other legal professional practice.
First, members of the various categories of legal professionals tend to respect and trust their
counterparts working in other Member States. Legal professionals are therefore quite pleased to
participate in EU-wide professional networks, obtaining and relying upon information obtained from
legal professionals in other Member States and making themselves available to provide such
information upon request by legal professionals in other Member States. The strengthening and
enhanced visibility of networks of judges, notaries and attorneys should accordingly be an effective
step towards the more frequent and correct application of foreign law by legal professionals.
Secondly, while clearly not determinative in itself, cost is certainly an important factor in the
application of foreign law in most of the cases in which it should be applied as a matter of legal
principle. Any means by which detailed and reliable information about the exact content of foreign
law, as applied in practice, can be made available to legal professionals free of charge or at limited
cost to them and the parties for whom they work, would therefore considerably encourage the
application of foreign law. Public authorities of Member States could provide valuable assistance in
this respect. Calls have also been made for the creation of one or more publicly funded institutions
specialising in the provision of independent and practically useful information about foreign law.
Thirdly, it is not practically feasible for legal professionals to ask for and then wait for the arrival of
information concerning foreign law in every situation in which it arises for consideration. They
require quick and direct access to the main rules of foreign law governing the types of cases with
which they are most frequently confronted. This need raises issues of technical and linguistic
accessibility. The pervasive use of the internet in modern judicial, legal and notarial practice suggests
the creation of a single, official and frequently updated database of all norms in force in Member
States. If promulgated in other languages, these norms need to be accurately translated into at least
one of the EU’s three working languages, so as to be accessible to the majority of legal professionals.
Finally, the application of foreign law will remain restricted, no matter how easily accessible it may
be, as long as legal professionals continue to have personal “Berührungsängste” in that respect. The
reduction and eventual removal of such reluctance cannot be achieved by the imposition of
additional norms or structures. It requires the inclusion of compulsory courses on foreign law in the
education and training programmes which legal professionals are required to undertake and will
realistically take some decades to achieve.
Moving from the practical to the normative level, it might be considered desirable to enact a Union
instrument to clarify the situations in and the methods by which a particular foreign law may be
chosen to apply to a particular relationship or situation, even though such an instrument would not
achieve uniformity (see point 1 above).
If normative action is to be taken, we first recommend that the scope of such an instrument be
limited to European Union conflict of law rules and the national law(s) which they designate. This
limitation is proposed for reasons of competency and due to the fact that broader measures could
7
Executive Summary
fail to bring about uniformity and predictability given the differing national conflict of law rules. For
the same reasons, we recommend that the instrument have effect when the law designated is that of
a Third State, as much as when it is that of a Member State.
To the (rather large) extent that existing Union conflict of law rules permit parties to choose the
applicable law, it would secondly be helpful to specify in the instrument that the lex fori may be
chosen, that a choice may be made after as well as before legal proceedings have been instituted
and that any choice must be made expressly. Similarly useful would be a clarification that a choice
of the law applicable to particular proceedings would not necessarily govern the whole relationship
between the parties, unless they make it clear that this is their intention.
Somewhat more difficult is the question of whether and how a Union instrument should provide for
the judicial application of foreign law ex officio. Our third recommendation, in this respect, is that
national judges should be required by the instrument, in cases in which the evidence at their disposal
indicates that a Union conflict of law rule may be relevant, to raise this consideration with the
parties and invite them to make submissions on the point. The issue of whether a judge should have
the power, or even the duty, to conduct his own research into and make her own determination
about the applicable law, independently of the parties’ submissions, is one which we believe should
best be left to the legal systems of individual Member States, given the fundamental importance of
this issue within national legal systems and the wide divergences which exist between the legal
systems of Member States in this regard.
To the (currently rather limited) extent that Union conflict of law rules exclude party choice of
applicable law (so as to protect the interests of one of the parties who is considered “weaker” than
the other, or to protect public interests, or to ensure the application of mandatory rules of European
Law, or mandatory rules of a Third State), our recommendation would be, fourthly, that judges in
Member States again be required to take the initiative to draw this to the attention of affected
parties. If mandatory rules of European Law are then found to be applicable in particular cases, they
will themselves prevent the judges from accepting any incompatible choices made by the parties. If it
is, on the other hand, the “weakness” of a party that attracts the exclusion foreseen by a Union
conflict of law rule, then it might be considered sensible to permit that party (perhaps on condition
of observance of certain procedural safeguards) to waive the protection of the rule.
As to the means of establishing the content of applicable foreign law, we fifthly recommend
retention of the principle of free choice of methods of proof and of the freedom of Member States to
formulate national rules of evidence.
Sixthly, while the general consequence of failure to establish the content of an applicable foreign
law would continue to be the application of the law of the forum, we recommend that the
instrument expressly draw attention to the fact that Union conflict of law rules sometimes mention
subsidiary connecting factors, which could be useful in this situation, or refer to the national legal
system with which a case is manifestly most closely connected.
As concerns appellate review of relevant judicial decisions, finally, we recommend that the
instrument impose only limited obligations on the Member States: first instance judicial applications
of Union conflict of law rules must be subject, on the application of a dissatisfied party, to review by
at least one superior instance.
Martin Sychold
Swiss Institute of Comparative Law
8
Legal Summary
SUMMARY LEGAL ANALYSIS
Introduction
The legal study aims to analyze the different approaches and methods employed by the Member
States when dealing with foreign law, especially in the area of conflict of laws. In this context, five
elements have been analyzed in each legal system, as they all have an impact on the manner in
which foreign law will be dealt with by the Member States.
The application of foreign law depends on a variety of factors. The conflict of law rules that
predetermine the application of foreign law, do not have the same status in all Member States (1).
Once the need to apply foreign law has been established, legal systems contain different principles as
to the manner of determining the content of foreign law (2). In case it is not possible to establish the
content of the applicable foreign law, legal systems might provide for varying consequences (3). The
control of the application of foreign law by superior courts also has an impact on the status of foreign
law (4). Lastly, some special considerations might apply when it comes to application of foreign law
by non-judicial authorities (5).
1.
The Binding Force of the Conflict of Law Rules
The binding force attributed to the conflict of law rules determines the "capacity" of a given legal and
judicial system to “host” a foreign law. This is true for all Member States reviewed by this analysis.
The binding force (or "the power") of the conflict of laws reflects the "ability" of the latter to impose
a foreign law in a given case. According to this criterion, conflict of law rules may be mandatory or
optional.
Yet, the binding force of the conflict of law rules is not the only parameter for the efficient
application of such rules. Whether mandatory or not, conflict of law rules are only be applied if the
factual pattern of the case calls for such application1. Thus, a timely discovery of relevant “foreign
elements” in the case may condition, as much as the power of conflict of law rules do, the efficient
application of such rules and that of the foreign law thereby designated. For the purposes of this
study, “foreign elements” are understood as the facts of the case that may suggest that the dispute is
governed by a foreign law. Usually, such facts correspond to a connecting factor of the relevant
conflict of law rule (e.g. nationality of the parties; place of habitual residence; place where the
damage is suffered; place where the contact is performed, etc.). Since such foreign elements are
unquestionably a matter of fact, the whole process of conflict of law resolution becomes entirely
dependent on the existing model of civil procedure and on how it treats the questions of fact. Can
the facts be invoked solely by the parties? Can the judge investigate facts suo moto? For this reason,
it can be said that the “foreign element” is the point where conflict of law meets the law of civil
procedure.
1
Cf. D. Solenik-Lhuillier, Application du droit étranger dans l’espace judiciaire européen, thèse dactylo.,
Nancy, dépôt 2011, pp. 42 ss ; L'application de la loi étrangère par les juges du fond anglais et
français – Réflexions pour une approche convergente dans l’Espace européen, Paris : Manuscrit, 2006,
p. 57 et s.
9
Legal Summary
As this comparative study shows, the procedural model operational in the forum will often shape the
attitude to the conflict of law and to foreign law in general. For this reason, the procedural status of
the foreign element which leads to references of foreign law (1.1) is treated independently from the
conflict of law rules designating foreign law (1.2). Special considerations apply when EU conflict of
law rules (1.3.) or EU interests (1.4.) are at stake.
1.1.
Procedural Status of the Foreign Element Leading to References
of Foreign Law
It is noteworthy that, with the exception of Austria2, none of the Member States have adopted any
formal provisions with regard to discovery of foreign elements in a dispute. However, the issue is
often subject to jurisprudence (e.g. Estonia, France, Italy, Portugal), thus demonstrating that the
issue is contentious.
The comparative analysis of the national legislation and practice reveals three principal approaches
to the procedural status of the foreign element in the case, which we shall hereinafter refer to as:
the dispositive regime (1.1.1.) the non-dispositive regime (1.1.2) and the dual regime depending on
the nature of the issue at stake (1.1.3).
1.1.1. The dispositive regime
The first approach consists of submitting foreign elements to the general regime, which is normally
applicable to the matters of fact in civil procedure. It means that foreign elements shall be
discovered in the same manner as any other fact of the case. For the purposes of this study, we
chose to refer to this regime as “dispositive”, because the questions of fact are usually at the parties’
disposal. A major consequence of such an approach is that the timely discovery of foreign elements
(as well as the subsequent application of foreign law) is intrinsically linked to the parties’ awareness
of such elements and their willingness to take advantage of it. This is because the court is usually not
entitled to decide on the facts which have not been proven and its judgment may only be based on
the evidence tendered during the judicial procedure. Should the parties omit to bring the relevant
foreign elements to the court’s attention, it is highly probable that the case will be treated as
domestic, and the applicable foreign law be left unapplied (“no foreign elements discovered – no
foreign law applied”).
Such an approach to foreign elements in a case has been adopted by the countries traditionally
viewed as common law countries (United Kingdom, Ireland, Cyprus and Malta), as well as by some
continental law countries (the Netherlands).
In the common law countries, such an approach is a logical outcome of the fundamentally
adversarial nature of its legal procedures. The presentation of evidence, from which the facts of a
case may be judicially determined, is left up to the parties to that case, while the judge is bound to
remain a passive observer and arbiter of the procedural activity of the parties. In these systems,
judges have neither a duty, nor the power to discover on their own initiative (ex officio) any foreign
elements that might require the application of foreign law. The pronouncedly adversarial nature of
the legal procedure thus opens the way for so-called “procedural agreements”, by means of which
2
See § 2 of Federal Act of 15 June 1978 on Private International Law (cited as IPR-Gesetz), BGBl. Nr.
304/1978, in the version of the last amendment BGBl. I Nr. 135/2009.
10
Legal Summary
parties can avoid the application of foreign law by simply refraining from revealing to the judge the
foreign elements in their case. The recent tendency in these countries to reinforce the role of the
judge in managing the issues of evidence3 does not seem to have reversed the established tradition,
as the new powers of the judge are “usually used to limit evidence, the presentation and consideration of which would be time consuming and/or otherwise expensive”.4
In the continental law countries (e.g. Belgium, Denmark, Estonia, Finland, France, Greece, the
Netherlands, Sweden), the passive role of the judge with regard to the foreign elements is also due to
the adversarial principle5. Thus, in the countries providing for the dispositive approach of foreign
elements the judge has neither the obligation nor the power to discover on their own accord the
foreign elements which might require the application of a foreign law in a given case. The entire
conflict of law mechanism is therefore entirely at the litigants’ disposal, and the effect of the conflict
of law rules depends on the parties’ awareness of such rules and their willingness to take advantage
of its provisions.
In some continental countries, although there is no obligation for the judge to discover foreign
elements of the case, judges still make use of their discretionary powers, allowing them to incite the
parties to debate on foreign elements in the case. In Sweden, it lies within the court’s discretionary
power to inform parties of circumstances that may affect the outcome of the dispute, e.g. facts that
may lead to the application of foreign law6. In Denmark, it is in the ambit of the court’s power to ask
the parties if they want to apply foreign law in a case where the elements reference foreign law, but
the parties may nevertheless proceed with the application of Danish law by refusing to take
advantage of the foreign elements7. In Finland and Denmark, the discretionary powers of the judge
with regard to the foreign element may well be transformed into a so-called “soft ex-officio duty” to
inform the parties on such elements and counsel them with respect to the legal consequences of
their choice, in case of a party’s excused absence or where a party is not legally represented8.
1.1.2. The non-dispositive regime
The second approach consists of extracting foreign elements from the general regime normally
applicable to facts. In contrast to the first approach, here the judge is obliged to discover foreign
elements ex officio (Austria, Bulgaria, Czech Republic, Estonia, Hungary, Italy, Latvia, Lithuania,
Romania, Portugal, Poland, Slovakia, Slovenia, Spain).
3
4
5
6
7
8
Cf. Civil Procedure Rules 1998 (hereinafter cited as “CPR”), in Lord Justice Waller (ed.-in-chief), Civil
Procedure 2010, London: Thomson Reuters (Legal) Limited, 2010 (commonly known as “the White
th
Book”) and in S. Sime & D. French (eds), Blackstone’s Civil Practice 2009, 9 ed, Oxford: Oxford
University Press, 2008.
th
Refer to S. Sime & D. French (eds), Blackstone’s Civil Practice 2009, 9 ed, Oxford: Oxford University
Press, 2008, par. 52.11, particularly on p. 756. Reference is made there to Civil Procedure rules (CPR),
rule 35.1, which specifically permits the restriction or exclusion of evidence to be given by expert
witnesses.
Art. 24 of the Dutch Code of Civil Procedure expressly prescribing a passive role to the judge
(‘lijdelijkheid van de rechter’).
J.-L.Elhoueiss, in « L’élément d’extranéité préalable en Droit international privé », JDI 2003, pp. 39-85,
et spec. p. 41
Refer to the present Study, Part I, “Denmarl”, para. 1.1.
Refer to the present Study, Part I, “Finland”, “Introduction”.
11
Legal Summary
This approach is particularly characteristic of the countries of Central and Eastern Europe and Baltic
States, most of which have undertaken a recent codification of private international law and/or
international civil procedure (Bulgaria, Hungary, Estonia, Latvia, Lithuania, Romania, Poland, Czech
Republic, Slovakia, Slovenia). This approach is partially explained by the residually inquisitorial
character of the civil procedure in these countries. In some countries, assigning to the judge an active
role in fact-finding is also linked to their duty to apply material law (Estonia, Latvia, Lithuania).
Indeed, if the foreign element is not discovered in a timely manner, the judge would have failed in
ensuring the correct and efficient application of the relevant conflict of law rule.
Emblematic of the present approach, Austrian legislation sets forth that the “factual preconditions”
for the connection of a case to a foreign law have to be ascertained ex officio9 , as soon as the case
contains any indications to do so.10 However, the Austrian PIL Act provides for a number of
exceptions from this general duty, in particular, when the dispute is open for choice of law11.
In Bulgaria, Italy, Spain and Portugal and Poland, the specific procedural status of foreign elements, is
derived from the mandatory character of the conflict of law rules. The explanation provided for by
Italian legal doctrine is particularly interesting in this context: the judge has a duty to search ex officio
for foreign elements because these are the connecting factors of mandatory conflict of law rules. The
mandatory character of the conflict of law rules vests in the judge a duty to find out whether or not
the connecting factor is localised in the forum’s territory. If the judge is prevented from discovering
the dispute’s internationality, it would result in allowing the parties to freely waive their rights in a
context where the waiver was not allowed by law12.
It is tempting to suppose that in countries with a non-dispositive regime of foreign elements, foreign
law will never be disregarded by the parties, because it is insured by the judges’ duty to secure its
proper application. However, the study shows that in these countries cases with “concealed”,
“omitted” or “forgotten” foreign elements are not an exception. Such cases are officially reported in
Hungary13 and in Portugal14. In other countries, it is often submitted that cases with omitted foreign
elements often escape from the official statistics, as in the presumed absence of conflict of law these
cases are treated as purely domestic (e.g. Greece). This ‘undetectable’ trend, also cited by the legal
professionals interviewed for the empirical study, testifies of the difficulty in implementing the
principle of mandatory application of the conflict of law rules. It appears to be equally difficult to
subvert this trend, as failure to discover the elements of fact is not subject to review before the
superior jurisdictions.
1.1.3. The dual regime
The third approach represents a median position establishing a dual regime with respect to the
foreign element. Depending on the nature of the issue at stake, the foreign element will be treated
9
10
11
12
13
14
§ 2 Act on PIL.
B. Verschraegen in Rummel, IPRG, 3. Ed., Vienna 2002, § 2 IPRG no. 3 et seq.
§ 2 Act on PIL.
N. Boschiero, Norme di diritto internazionale privato facoltative ? RDIPP, 1993, p. 541 s.
See: County Court of Vas 17.P.20.990/2006/30, affirmed by the Tribunal of Győr Pf.I.20.193/2008/4.
Supremo Tribunal de Justiça, Acórdao de 23.7.1980, BMJ n° 299, 1980, p. 262. Cf. A. dos Santos, As
normas de aplicação imediata no direito internacional privado, Coimbra 1991, p. 43 ss. Spécialement
dans la note 167.
12
Legal Summary
either as a normal fact, or as a fact of a particular kind that must be discovered and investigated by
the judge ex officio. This represents a duality in the treatment of foreign elements.
The application of either of the regimes is based on different criteria. In Germany and Greece, the
treatment of foreign elements depends of the type of procedure. In adversarial proceedings in
Germany, it is up to the parties to invoke the foreign element. In inquisitorial proceedings, it is up to
the tribunal to search for the elements of fact, even if these are not a subject of debate between the
parties. Inquisitorial proceedings are exceptional; such procedural form is only used in cases, in
which the public interest requires a full investigation of fact (e.g. marriage, divorce, parental
responsibility and filiation, civil (registered) partnerships and publication).
In Sweden and Finland, the distinction between mandatory and non-mandatory proceedings is drawn
according to whether or not the case is “amenable to out-of-court settlement. Usually, the facts
clearly show whether a case is mandatory or non-mandatory. However, the demarcation is not
always distinct, and it is quite common for both mandatory and non-mandatory elements to appear
in the same proceeding (i.e. a “mixed-case”).15 A simple rule of thumb is that cases regarding status
are usually regarded as mandatory (e.g. divorce, marriage, declaration of fatherhood).16 It has been
submitted, however, that the distribution of procedural tasks between the parties and the court
might not be realized solely on the basis of availability of mediation. Raising the choice of law
question is part of the courts duty to lead the procedure if, for instance, one of the parties involved is
not assisted by legal counsel or does not participate. However, the scope and substance of the
court´s role is unclear in cases with no special circumstances. The courts are careful in carrying out
this role. Judges cannot lead or urge the parties to invoke the foreign law since the trial will be slower
and more expensive and the outcome less certain.17
In France, Belgium and Luxembourg, the distinction between mandatory and non-mandatory
treatment of foreign elements is drawn according to the nature of rights at stake. Emblematic of this
approach, French case law and doctrine base the distinction in the procedural treatment of foreign
elements and conflict of law rules on the “availability” of the disputed rights. When the rights at
stake are considered as “available” (or “waivable”), the foreign elements at stake are completely at
parties’ disposal18. When, on the contrary, the disputed right are not avaiblable (“non-waivable” or
“not subject to agreement”), it belongs to the judge to discern foreign elements through
independent investigation of the facts in the case19. The non-available rights are traditionally
identified as belonging to the matters concerning status of persons. With respect to this, it is
submitted, that foreign elements in the matters of status are usually manifest or discernible in the
15
16
17
18
19
One example from Swedish case-law is NJA 1985 p. 338, in which divorce, guardianship and
maintenance was adjudicated. The Supreme Court treated all issues involved as mandatory with
regard to procedure, but stated that for the adjudication of the different substantive issues involved it
is possible to separate mandatory (e.g. the divorce) and non-mandatory (e.g. the question regarding
maintenance) elements.
For a more comprehensive discussions as to mandatory and non-mandatory proceedings see Ekelöf,
P.O. and Edelstam, H. “Rättegång I [Procedural Law I]”, Norstedts Juridik 2002 (cit. Rättegång I), pp 5965 and Jänterä-Jareborg, M., ”Svensk Domstol och Utländsk Rätt” [Swedish Courts and Foreign Law],
Iustus förlag 1997 (cit. Jänterä-Jareborg 1997).
See e.g. : Mikkola, Tuulikki. Lainvalinta prosessissa : Oikeusjärjestelmien välisistä eroista ja niiden
vaikutuksista sovellettuun oikeuteen. Kovia aikoja riitoja ja maksukyvyttömyyttä, in Juhlakirja Risto
Koulu 60 vuotta (eds. Heidi Lindfors, Emilia Korkea-aho, Santtu Turunen). 2009. University of Helsinki
Conflict Management Instituten julkaisuja. Edita Prima Oy. Helsinki 2009. pp. 434 – 435.
ère
cass. civ. 1 , 20 nov. 2006, n° 05-19 838, Bull. civ. 2006 I n° 522.
H. Muir Watt, Rép. Droit international, Paris 2009, V° Loi étrangère, n° 14.
13
Legal Summary
case. In fact, nationality and domicile of the parties – which are the principle connecting factors in
the sphere of status – usually appear in the particulars of the claim20.
In Denmark, while courts do not generally have an explicit statutory duty to discover ex officio
foreign elements, the legislation provides for a number of circumstances in which the judge assumes
investigative duties with regard to foreign elements (e.g. cases of particular public interest;
protecting interest of a party without legal representation; ensuring an exhaustive evidentiary basis
for the decision, etc.). The general purpose of such dual approach is to prevent the parties from
inhibiting conflict of law rules (by manipulating or omitting foreign elements) where such rules are
not at parties’ disposal.
The apparent diversity in national approaches seems to boil down to a single material criterion: the
duty of the judge to discover and investigate foreign elements ex officio exists only in matters
relating to the status of persons.
1.1.4. Comparative Observations and Detected Problems
The comparative overview given above shows that the efficiency of a conflict of law, be it binding or
not, is dependent on the procedural approach to the foreign element in the case.
In legal systems representing the first approach the applicable foreign law shall only be applied, if it
corresponds to the parties’ interest directly expressed before the court. Should the parties be
unwilling to submit their case to foreign law application or are unaware of its applicability, the
conflict of law rule shall remain inactive and the foreign law unapplied. This may clearly inhibit the
efficiency of the conflict of law rules. Moreover, it discriminates between cases subject to national
law and those subject to foreign law. The same is true for the countries representing the third
approach, as long as foreign elements are treated procedurally as simple facts.
On the contrary, in legal systems representing the second approach (implying a mandatory discovery
of foreign elements by the judge ), the applicable foreign law is sure to be applied, although it may
run counter to the wishes of the parties, because the exercise of conflict of law rules is guaranteed
by the judge. While the latter is more respectful of the conflict of law rules and of the foreign law’s
scope of application, it provides less flexibility and less legal certainty for the parties who may be
unaware of the implications of the application of foreign law.
1.2.
Procedural Status of the Conflict of Law Rule Designating a Foreign Law
Once the foreign elements have been discovered, the binding power of conflict of law rules shall
determine whether the relevant conflict of law rule must be applied ex officio by the judge (1.2.1) or
solely upon request of at least one of the parties (1.2.2).
20
Art. 57, 59 et 648 du French Code of Civile Procedure.
14
Legal Summary
1.2.1. The binding power of the Conflict of Law Rule with respect to the judge
When the existence of the foreign elements is established, the power of the conflict of law rule gives
way to significant divergences among Member States. This comparative study has identified three
different approaches to the subject.
1.2.1.1. The first approach: mandatory conflict of law rules
In the first approach the conflict of law rules are binding both on the judge and on the parties.
Applicable in more than half of the EU Member States, the mandatory conflict of law principle may
be absolute (Bulgaria, Estonia, Finland, Greece, Hungary, Italy, Lithuania, Netherlands, Poland,
Portugal, Romania, Spain) or tempered with some exceptions (Austria, Hungary, Germany, the
Netherlands). The mandatory conflict of law principle, however mitigated by the free disposition
principle (‘principe dispositif’) has been observed in Belgium.
The mandatory conflict of law principle entails the duty of the judge to apply the relevant conflict of
law rule ex officio, even if it runs counter to the wishes of the parties. The mandatory conflict of law
principle is justified on various grounds.
In the Czech Republic, Germany, Latvia, Slovenia, Slovenia and the Netherlands, the duty of the judge
to apply conflict of law rules is justified by the fact that any rule of law has a binding force.
Mandatory application of conflict of law rules thus places itself within the general duty to apply the
law of the forum.
In Greece and Romania, such duty of the judge is explained by the inquisitorial nature of the civil
procedure21.
In Bulgaria22, Estonia23, Hungary24, Lithuania25 and Poland26, mandatory application of conflict of law
rules is deduced from a legal rule providing for mandatory application of foreign law. Thus, the
judge’s duty with respect to the conflict of law (‘ex officio’) includes applying the relevant conflict of
law rule, ascertaining the contents and applying the competent foreign law. This legislative solution
is explained by the need to ensure the effectiveness of the law independent of its origin (principle of
equal treatment of domestic and foreign law).
Some Member States have established express provisions for mandatory (‘ex officio’) application of
conflict of law rules and designated foreign law (Austria27, Italy28, Portugal29 and Spain30).
21
22
23
24
25
26
27
28
29
30
Refer to relevant National Reports; this Study; Part I.
Art. 43 Code of Private International law of Bulgaria.
Art. 438(1) Civil Procedure Code of Estonia.
Sec. 5 Private International Law Code of Hungary.
Art. 1.10 Civil Code of Lithuania.
Art. 1143 Civil Procedure Code of Poland.
Art. 3 Private International Law Act of Austria.
Art. 14 Act on Private International law of Italy.
Art. 21 Civil Procedure Code of Portugal.
Art. 12.6 Civil Code of Spain.
15
Legal Summary
It is noteworthy that none of the Member States give privilege to conflict of law rules of international
or communitarian origin. Some national legislations indicate that such conflict of law rules are to be
treated on an equal standing with domestic conflict of law rules (Bulgaria, Lithuania, Estonia,
Poland).
1.2.1.2. The second approach: facultative conflict of law rules
The second approach establishes a system of optional conflict of law principle, regardless of the
origin of the relevant conflict of law rules (United Kingdom, Ireland, Cyprus, and Malta). This model is
especially characteristic of common law countries. In these countries, assimilation of foreign law to a
fact eliminates any possibility of judicial intervention in the conflict of law process. Punctuated by
rare exceptions (e.g. ascertainment of foreign law in criminal matters or matters related to personal
status), the optional conflict of law prohibits courts from raising the issue of applicable law on its
own motion, if it has not been invoked by either party.
Noteworthy is the fact, that despite the invariably optional character of conflict of law rules, these
Member States avail their judges with discretionary powers allowing them intervene into the
conflict-of-law process, by bringing up the question of foreign law in the event of the parties’ silence
on this subject31. The comparative study shows, however, that such powers are hardly used in cases
where foreign law elements are not manifest32. In any case, no procedural means allow the judge to
compel the parties to comply with the conflict of law rule and plead the relevant foreign law33.
1.2.1.3. The third approach: dual status of conflict of law rules
The third approach is based on the duality of the status of conflict of law rules, the corpus of such
rules is divided into two groups, one of which is mandatory and the other optional (Finland, France,
Lithuania, Luxembourg, Czech Republic, Slovakia, Slovenia, Sweden).
Quite divergent from one Member State to another, the criteria distinguishing mandatory and nonmandatory issues relate to “dispositive” or “non-dispositive nature” of the rights (France), mandatory
or non-mandatory proceedings (Sweden), the nature of the issue at stake (Luxembourg, Czech
Republic, Slovakia, Slovenia).
Characteristic of the dual approach, the French legal system uses the criteria of “free disposition of
rights at stake”34. If the disputed rights are not “freely disposed of”, the judge has a duty to apply the
relevant conflict of law rule, notwithstanding the wishes of the parties35. If the disputed rights may
be “freely disposed of”, the initiative to invoke international character of the dispute and the
31
32
33
34
35
E.g. in Malta, the power to order continuation of the case for proof to be brought on the content of
foreign law: Anthony Briffa v. Voest-Alpine Oilfield Service Limited, First Hall Civil Court, 15 April 2002,
unreported.
E.g. refer to the present Study, Part I, “Ireland”, para. 1.1.
E.g. refer to the present Study, Part I, “United Kingdom”, para. 1. 2.
B. Fauvarque-Cosson, Libre disponibilité des droits et conflits de lois, LGDJ, bibliothèque de droit privé,
t. 272, Paris, 1996, préface Y. Lequette.
ère
re
Cass. civ. 1 , 6 mai 1997, Bulletin civil 1997 I, n° 140; Cass. civ. 1 , 26 mai 1999 Mutuelles du Mans,
re
Bulletin civil 1999 I, n° 172; Cass. civ. 1 , 14 juin 2005, Bulletin civil 2005 I, n° 243.
16
Legal Summary
relevant conflict of law rule belongs to the parties36. When the parties may not freely dispose of their
rights, they may neither dispose of the relevant conflict of law rule37. The rule is then considered
imperative, and its efficient application is guaranteed by the judge. The concept of “free disposition
of rights” is however subject to long-standing doctrinal and jurisprudential controversies. The major
reason for this relates to the legal technique. In fact, it is difficult to identify the law, according to
which qualification of the nature of rights at stake must be carried out. Moreover, such qualification
must be given before the relevant conflict-of law rule is applied. The usual solution to apply lex fori is
rather unsatisfactory, because the fundamental concepts of the forum may be quite different from
those of the foreign law applicable to the case. Aside from this, France seems to lack a clear
definition of “free disposition of rights”. At the risk of making a gross approximation, the matters
covered by the “free disposition principle” are those which may be waived by a private agreement,
or else, those that may be subject to out-of-court settlement or arbitration38. Thus, rights that may
not be freely deposed of may be related to the rights stemming from family law, matters concerning
status of persons and all the other fields of law that are traditionally considered of “public interest”.
Despite the deplored inadequacy of this criterion, French jurisprudence seems deeply attached to
it39.
A similar quest for a clear distinction between mandatory and non-mandatory proceedings is
observed in Sweden, Denmark and Finland. Usually, the question is solved on a case-by case basis, as
the facts clearly show whether a case is mandatory or non-mandatory. However, the demarcation
line is not always distinct, and it is quite common for both mandatory and non-mandatory elements
to appear in the same proceeding (i.e. a “mixed-case”).40 A simple rule of thumb is that cases
regarding status (e.g. divorce, marriage, declaration of fatherhood/paternity) are usually regarded as
mandatory.41
In Estonia, it is submitted that a degree, to which party autonomy is tolerated in the matter, may
serve as an additional criteria for determining the non-mandatory character of the proceedings.
Thus, matters allowing some leeway in terms choice of law are usually considered as nonmandatory42.
Similarly to the common law countries, Luxemburg considers conflict of law rules to be optional as a
matter of principle. The optional character of conflict of law rules is explained by the fact that such
36
37
38
39
40
41
42
ère
Cass. civ. 1 , 10 déc. 1991, n° 90-11520, Bulletin civil 1991 I, n° 346
Cf. D. Solenik-Lhuillier, Application du droit étranger dans l’espace judiciaire européen, thèse dactylo.,
Nancy, dépôt 2011; « L'application de la loi étrangère par les juges du fond anglais et français –
Réflexions pour une approche convergente dans l’Espace européen», Paris : Manuscrit, 2006, p. 57 et s.
H. Muir Watt, Rép. Droit international, Paris 2009, V° Loi étrangère, n° 52-58, 74-81, 95.
V. Cass. 1re civ., 11 février 2009, n° 07-13.088, Sté Funk c/ Sté Allianz Versicherung AG, JurisData n°
2009-046980.
One example from Swedish case-law is NJA 1985 p. 338, in which divorce, guardianship and
maintenance was adjudicated. The Supreme Court treated all issues involved as mandatory with
regard to procedure, but stated that for the adjudication of the different substantive issues involved it
is possible to separate mandatory (e.g. the divorce) and non-mandatory (e.g. the question regarding
maintenance) elements.
For a more comprehensive discussion as to mandatory and non-mandatory proceedings see Ekelöf,
P.O. and Edelstam, H. “Rättegång I [Procedural Law I]”, Norstedts Juridik 2002 (cit. Rättegång I), pp 5965 and Jänterä-Jareborg, M., ”Svensk Domstol och Utländsk Rätt” [Swedish Courts and Foreign Law],
Iustus förlag 1997 (cit. Jänterä-Jareborg 1997).
Refer to the present Study, Part I, “Estonia”, para. 1.2.
17
Legal Summary
rules are not recognized as “public order rules”43. It is thus entirely up to the litigants to decide
whether or not to take advantage of these. There is no legal provision that prescribes a duty upon
the competent judge to remedy procedural failures and omissions of the parties44. However, this
“optional principle” is subject to an exception when the dispute before the court concerns the status
of persons45. In the latter field, the parties may not waive the application of the applicable law by
means of a private agreement and the judge must ensure that the choice of law rule is respected.
In Belgium, Czech Republic, Slovakia and Slovenia, the question of mandatory or non-mandatory
qualification is resolved in concreto, depending on the nature of the issue at stake. Thus, contractual
matters are universally qualified as non-mandatory, whereas issues relating to status are considered
as mandatory. The question concerning family and matrimonial law is more controversial, as this
field of law undergoes progressive contractualisation46.
It needs to be emphasized that a perfectly symmetrical dualism of mandatory and non-mandatory
issues has not been observed in any of the Member States. Non-mandatory or optional conflict of
law coincides with the fields of law traditionally covered by party autonomy (e.g. contractual matters
and matters involving contractual elements, like matrimonial property). Mandatory application of
conflict of law is generally confined to fields of law where public interest is too strong to let the
parties dispose freely of their rights (e.g. paternity cases in Finland, family law and matrimonial issues
in Denmark, rights in rem, inheritance and family law, and the issues of legal capacity in Czech
Republic, Slovenia and Slovakia, civil status of persons and divorce in Luxembourg). Although certain
similarities may be observed, there is no common approach with respect to the matters covered by
non-mandatory conflict of law principle. In Nordic countries, the jurisprudence tends to practice
multiple criteria to distinguish mandatory issues from non-mandatory, such as availability of out-ofcourt settlement, the nature of the disputed rights, international or communitarian origin of the
conflict of law rule. Concerning the EU conflict of law rules, it has been reported that in some
Members States (Finland), some directives have been implemented in such a way that a court has a
duty to apply conflict of law rules. However, mandatory application of such rules is not due to their
supra-national origin, but rather to the social objective that they pursue. An example of such a
directive is the EU Posted Workers Directive47. According to views presented in legal literature, the
aim of protecting an employee is so significant that the employee has a justified expectation that the
protective norm will be applied ex officio. However, the social objective of the conflict of law rule
might bump into practical difficulties, especially in the countries where conflict of law in the field of
labor contracts is not qualified as mandatory.
43
44
45
46
47
Luxembourg 22 janv. 1986, n° 32836 du rôle, 28 janv. 1987, n° 58/87, 24 févr. 1988, n° 68/88 et 8 janv.
1992, n° 2/92.
Cour 2 mars 2000, Pas. 31.274.
Jur.-Cl. Droit comparé, V° Luxembourg, Fasc. 3- Conflits de lois et de juridictions en droit luxembourgeois, n° 2.
D. Solenik, L'application de la loi étrangère par les juges du fond anglais et français – Réflexions pour
une approche convergente dans l’Espace européen, Paris : Manuscrit, 2006, p. 126 ; E. Bostanji,
L'évolution du traitement réservé à la loi étrangère en matière de statut personnel, Thèse, Dijon, 2000,
p. 149.
Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning
the posting of workers in the framework of the provision of services, Official Journal L018, 21/01/1997,
pp. 1-6. Implemented in Finland: Laki lähetetyistä työntekijöistä, 1146/1999.
18
Legal Summary
1.2.1.4. Comparative Observations and Detected Problems
Ultimately, the binding force of conflict of law rules allows an evaluation of the procedural systems
of Member States, as concerns the relative degrees of effectiveness of foreign laws within the
national territories of the Member States. A source of significant differences, the level of authority of
conflict of law rules provides potential for forum shopping, enabling the litigant to choose from
amongst the available fora a tribunal which will be more or less inclined to apply foreign law.
In addition to the problems indicated above, it needs to be emphasized that the approach chosen in
relation to the conflict of law rule is sometimes inconsistent with that applied to the foreign
elements. This observation is particularly surprising, because the foreign element of a case forms an
integral part of the conflict of law rule, as its connecting factor.48 It is noteworthy that some of the
countries providing for mandatory conflict of law rules treat foreign elements as simple facts, thus
leaving the parties with the possibility of a waiver of the conflict of law rules, by never raising the
issue before the court (Estonia, Finland, Greece, Italy and the Netherlands). This discrepancy has, in
our view, a considerable potential of undermining the efficiency of conflict of law rules.
1.2.2. The binding power of the Conflict of Law Rule with respect to the parties
Where the conflict of law rules are of a non-mandatory character, the application of conflict of law
rules is conditioned on a party’s request. In such cases, the parties can always agree during the
proceedings to exclude the application of foreign law (by abstaining from invoking the relevant
conflict of law rules) and subject their dispute to the law of the forum. Such “procedural
agreements”, which are essentially agreements that a case will be subject to the laws of the forum
are expressly admitted by law in Austria and Hungary. They are possible de jure and de facto in
Belgium, Finland, France, Greece, Latvia and Italy. In the United Kingdom, Ireland, Cyprus and Malta,
uncontested refusal to plead foreign law would result in application of the law of the forum.
The Member States having adopted the optional conflict of law principle (United Kingdom, Ireland,
Cyprus, and Malta) allow the parties to avoid the application of foreign law by not pleading its
application. Moreover, as foreign law is considered a question of fact, it is also possible to agree
upon the contents of the applicable law. Thus if the version of the contents of the applicable law
provided by the plaintiff is not contested by the defendant, this version will be the one applied to the
case, notwithstanding its objective veracity.
Any indications with respect to formal and substantive conditions for validity of “procedural
agreements” are rare in national law. It seems established, though, that “tacit agreements” deduced
from the procedural passivity of the parties with regard to the issue of foreign law49 are not accepted
in continental legal systems (Austria, Belgium, Hungary, France), but are formally possible in
common law systems. In such systems (United Kingdom, Ireland, Cyprus and Malta), nothing
prevents a judge from intervening to ensure that both parties are aware of the possible
consequences of their choice, but there is no legal duty to do so. In Belgium, France and Latvia, the
judge is entitled to verify whether the renunciation of the parties of foreign law is unequivocal and
made in awareness of the consequences of their act. In Finland and Latvia, “procedural agreements”
48
49
D. Solenik-Lhuillier, Application du droit étranger dans l’espace judiciaire européen, thèse dactylo.,
Nancy, dépôt 2011, p. 43 ss.
D. Bureau, L’accord procédural à l’épreuve, Rev. crit. DIP 1996, p. 587-620
19
Legal Summary
waivering the application of foreign law are regulated by analogy to court settlements. Thus, to be
confirmed by the court, an agreement not to apply foreign law must be express (in Latvia, a written
form is required). The court needs to determine whether the parties agreed voluntarily and are
aware of the procedural and substantial consequences of their act. The agreement may not be
confirmed if it is contrary to law (namely, to the conflict of law rule), if it is clearly unreasonable, or if
it violates the rights of a third party. The court must confirm the settlement in writing and the
decision must denote its subject and contents50.
Considering that procedural agreements do not constitute a choice of law, but rather a renunciation
of the conflict of law rule, such agreements may only be made in favor of the law of the forum. Save
cases of party autonomy, litigants may not request application of a foreign law instead of the forum
law that would normally be applicable. Neither may they use such procedural agreement to request
application of another foreign law, different from what would be normally applicable according to
the conflict of law rule.
The comparative analysis demonstrates that, contrary to a traditional assumption, the mandatory
nature of conflict of law rules does not necessarily preclude the parties from waivering foreign law
by concluding choice-of-law agreements. In this sense, a classical example is provided by the
Hungarian legislation. Section 9 of the Hungarian 9 of the PIL-Code contains an express provision
allowing the parties to request the court to apply Hungarian law, in any case where foreign law
would be applicable. Accordingly, the foreign law governing the case must be disregarded at the joint
request of the parties. A similar situation exists de facto in Greece and in Austria. In this context, the
parties waiver the conflict of law issue, rather than make a choice of law in the common sense of the
term.
In countries recognizing the mandatory character of conflict of law rules - either in general, or in
certain fields of law – “procedural agreements” intended to exclude the application of foreign law
and subject the dispute to the law of the forum are admitted, as long as the relevant conflict of law
rule allows for party autonomy (Belgium, Estonia, Finland, Lithuania). The agreement is not binding
on the judge, if it contravenes the applicable conflict-of-law rule (Finland, Sweden).
1.3.
Procedural Status of the EC Conflict of Law Rules: “Rome II” Regulation
One of the key objectives of the present study is investigating the effectiveness of the
communitarian conflict of law rules within the legal orders of the EU Member States. In the
perspective of the emergence of the European private international law (see « Rome I » and « Rome
II » Regulations, etc.), the Study aimed at finding out whether the status of the conflict of law rules
may change de facto, once it is established that the relevant conflict of law rule is contained in an EU
Regulation or Directive.
The research conducted that to date “Rome II” Regulation has been subjected to very few cases
adjudicated by Member States’ courts. As the Rome II Regulation only became applicable on 11
January 2009, it is still too early to assess its application by the Member States’ courts, and the
extent to which, if at all, it may have an impact on the rules concerning application of foreign law.
The few court decisions analyzed by the study have been reported in five Member States: Bulgaria,
Finland, Germany, the Netherlands, and the United Kingdom. A brief presentation of the cases in
50
Cf. Chapter 20 of the Finnish Code of Judicial Procedure; Section 226 of Latvian Civil Procedure Law.
20
Legal Summary
every one of these Member States (1.3.1) is followed by general observations and analysis of the
perceived problems (1.3.2).
1.3.1. Presentation of cases51
1.3.1.1. Bulgaria
In the current state of Bulgarian law, Rome II Regulation has not yet become subject to wellestablished jurisprudence52. Official sources point to a single decision stating the rules of the
Regulation in the recitals. The decision was rendered by the Commercial Division of the District Court
of Varna (Варненският окръжен съд) on October 12, 2010.
The litigation involved, inter alia, an action for compensation for moral damages inflicted during the
insolvency proceedings by a trustee to the company in liquidation. The complainant alleged that the
injurious conduct of the trustee consisted in disloyal acts, which were undertaken while preparing of
the sale of assets and in the course of such sale, under a liquidation plan approved by the court
seized with the insolvency proceedings. Such acts were allegedly were detrimental to the reputation
of the complainant (e.g. disinformation of potential purchasers, dissemination of false information
regarding the content of a document written in a language unknown to the participants,
concealment of material information on the course of the tender, ignoring the best offer). In
analysing the facts, the Court stated that "the [alleged] harmful behaviour is covered by the notion of
pre-contractual liability (culpa in contrahendo). The disputed acts are part of a legal relationship
grafted with a cross-border element, as the complainant, having claimed moral damages, and the
defendant, who is the alleged perpetrator of the damage, are both resident in different Member
States [of the European Union]. The harmful behaviour occurred after January 11, 2009, thereby to
determine the applicable law, the court is bound by the provisions of art. 12 of Regulation (EC) No
864/2007 of the European Parliament and the Council of 11 July 2007 on the law applicable to
contractual obligations ("Rome II")”53. In accordance with the special conflict rule (art. 12 al. 1 of the
Regulation), the law applicable to a non-contractual obligation arising out of dealings prior to the
conclusion of a contract, regardless of whether the contract was actually concluded or not, shall be
the law that applies to the contract or that would have been applicable to it had it been entered into.
The District Court of Varna applied Bulgarian law governing the pre-contractual relationship, as the
liquidation of the assets of the bankrupt firm, represented here by a vessel registered in the
Bulgarian register of navigation, was subject to the law of the Court seized with the main insolvency
proceedings against the debtor (art. 4, para. 2 b. "B" and "c" and Art. 11 of Regulation (EC) №
1346/2000 of 29 May 2000 on insolvency procedures).
The decision described is even more interesting, given the objectives of this study, in particular,
concerning the question of the effectiveness of EU conflict of law rules in the legal systems of
Member States. On the one hand, the decision confirms that the EU conflict of law rules in Bulgaria
have the same procedural regime as the domestic ones. The status of the conflict rule remains the
same, whether contained in a regulation, directive or any domestic legal provision. Although the law
51
52
53
The present subsection partially reproduces the relevant findings of the national reports for the
respective countries.
The research of Bulgarian jurisprudence on « Rome II » Regulation was conducted in Bulgaria by Mrs.
Jasmina SABEVA, Bulgarian legal scholar in the University of Lausanne. The author of the General
Summary would like to thank Ms. SABEVA for her invaluable contribution.
The non-official translation from Bulgarian is ours.
21
Legal Summary
by virtue of Art. 12 al. 1 of the Regulation "Rome II" is one of the forum, the text of the decision
leaves no doubt that the judge could have just as much applied foreign law, if it had been applicable.
In any case, such is the requirement of art. 43 al. 1 of the Bulgarian Code of Private International Law
(CPIL)54. On the other hand, it appears that the effectiveness of EU conflict of law rules do not
depend on Community law, but on the procedural framework of the legal order of the forum. In
Bulgaria, conflict of law rules contained in the Rome II Regulation shall be applied ex officio by the
judge, in accordance with Art. 43 al. 1 CPIL. As reflected in the text of the decision, in order to carry
out his duties under Art. 43 al. 1 CDIP, the judge is required to research any extraneous elements,
regardless of whether or not the international nature of the dispute has been relied upon by the
parties. A procedural agreement to dismiss the law designated by the conflict rules in Rome II
Regulation is not conceivable, if the dispute is brought before the Bulgarian courts and if the relevant
conflict of law rule does not provide an opportunity to choose applicable law. Consistent with the
jurisprudence of the ECJ55, this observation suggests that the effectiveness of the EU conflict of law
rules are difficult to assess. Indeed, the effective application of the conflict of law rules does vary,
from one Member State to another, according to the "rigor" of the procedural law of the State.
1.3.1.2. Finland
The Supreme Court of Finland referenced the Rome II Regulation in one ruling56. In that case the
damage had occurred before the Rome II regulation came into force, so the regulation could not be
applied. However, the present decision of the Supreme Court is of a particular interest, because it
allows foreseeing the attitude of the future Finnish jurisprudence to this Regulation. Despite the
temporal inapplicability of Rome II, the Supreme Court gave weight to certain paragraphs of article 4
of the Regulation, stating that before the Rome II regulation entered into force, the Finnish domestic
private international law provided an identical solution (lex loci damni). Thus, the law applicable in
Finland to non-contractual damages was the law of the State where the damage occurred. In the
present case the court had to consider the applicability of the escape clause, analogical to that
contained in article 4.3 of the Rome II Regulation. According to such clause, “[w]here it is clear from
all the circumstances of the case that the tort/delict is manifestly more closely connected with a
country other than that [where the damage occurred], the law of that other country shall apply. A
manifestly closer connection with another country might be based in particular on a pre-existing
relationship between the parties, such as a contract, that is closely connected with the tort/delict in
question”.
According to the facts of the case, all parties involved were Finnish citizens and the plaintiffs’ habitual
residence was Finland. In addition, all of the parties referred to Finnish law. The court found,
however, that the damages occurred in Estonia and both the offender and the victim had their
habitual residence in Estonia at the time of damage. Considering this, the economic effect of the
damage was found to be principally concentrated in Estonia. For this reason the Supreme Court
considered that the requirement of the “manifestly closer connection” was not satisfied. The Court
therefore denied to admit the procedural agreement to apply Finnish and ruled that the law
54
55
56
Кодекс на международното частно право, ДВ. бр. 42 от 17 Май 2005г., изм. ДВ. бр.59 от 20 Юли
2007г., изм. ДВ. бр.47 от 23 Юни 2009г., изм. ДВ. бр.100 от 21 Декември 2010г.
CJCE, aff. jointes C-430/93 et C-431/93, 14 décembre 1995, Rec. CJCE, 1995, p. I-04705 ; CJCE, aff. C312/93, 14 décembre 1995, Rec. CJCE, 1995, p. I-04599. Cf. G. CANIVET, J.-G. HUGLO, « L’obligation
pour le juge national d’appliquer d’office le droit communautaire au regard des arrêts Jeroen Van
Schijndel et Peterbroeck », Europe, avr.1996.1.
KKO 2010:51.
22
Legal Summary
applicable was to be determined according to the rule of the country where the damage occurred. As
a result, Estonian law applied.
1.3.1.3. Germany
The European Union law in Germany enjoys the same status as domestic law; the judge must garner
knowledge of this law by the means of internal research57. The conflict of law rules contained in the
EU instruments and foreign law designated by such rules must be applied by the judge ex officio58.
Regarding the Rome II Regulation, the analysis of the relevant case law shows that the German
courts base their decisions on the law applicable under the provisions of the Regulation, provided
that the situation falls within the material and temporal scope of application of the Regulation. It
seems that there have never been a case in which German judges have applied a law other than the
one designated by the conflict of law rules contained in the regulation. Three cases in which Rome II
Regulation was applied were singled out for the purposes of this study.
In the first case59, the German Federal Court of Justice applied the Rome II Regulation in a case
concerning the general terms and conditions of British Airways concerning Flight Coupons. It reached
the conclusion that a clause in the general terms and conditions declaring a ticked invalid if the Flight
Coupons are not used in the order stated on that ticket constituted an unreasonable disadvantage
contrary to the principle of good faith. The applicant demanded that British Airways refrained from
the application of this clause. The Federal Court of Justice applied the Rome II Regulation since the
applicant’s claim concerned a tort falling within its scope. In accordance with Art 4 para 1 of the
Regulation, it applied the law of the country in which the damage occurred, which in this case was
German law.
The second case60 decided by the German Federal Court of Justice also concerned the general terms
and conditions of an airline (Ryanair). It held that while a clause that excluded the accepting of cash
payments included in the general terms and conditions was valid, another clause concerning fees for
credit-card (4 €) and bank-card (1.50 €) payments constituted an unreasonable disadvantage
contrary to the principle of good faith and was therefore invalid. The Federal Court of Justice applied
German law in accordance with Art. 4 para 1 and Art 2 para 3 of the Regulation.
The third case61 in which the German Federal Court of Justice applied the Rome II Regulation
concerned an infringement of a unitary Community intellectual property right (a Community design
according to Regulation (EC) No 6/2002). The Court applied German law according to Art 8 para 2 of
the Regulation.
57
58
59
60
61
H. Prütting dans : Münchener Kommentar zur Zivilprozessordnung, H.C. Beck, 3ième éd., Munich 2008,
§ 293, n°. 9.
Refer to “Germany”, National Legal Report, in this Study, Part. 1, para. 1.2.
Federal court of Justice, 29.4.2010, Xa ZR 5/09, Neue Juristische Wochenschrift 2010, p . 1958, p. 1959.
Federal court of Justice, 20.5.2010, Xa ZR 68/09, Neue Juristische Wochenschrift 2010, p. 2719, p.
2720.
Federal court of Justice, 22.4.2010, I ZR 89/08, Gewerblicher Rechtsschutz und Urheberrecht
Internationaler Teil 2010, p. 1072, p. 1076.
23
Legal Summary
1.3.1.4. The Netherlands
In the cases studied, the general observation is that, in all the cases discovered, the Dutch courts
follow the rules of the Rome II Regulation if the Rome II Regulation is considered applicable,
regardless of whether foreign law or forum law is applicable.
Despite its relative newness, the Rome II Regulation seems well integrated with Dutch judicial
practice. Dutch courts often took judicial notice of the Regulation even before its entry into force. In
a decision of the Court of Appeal of Arnhem of 28 July 200962, the court decided ex officio that, since
the acts that caused the damage occurred before the date of the Regulation’s entry into force (11
January 2009), Article 31 of Rome II states that the Rome II Regulation will not be applicable.
Therefore, the court ruled that in this matter the Dutch Conflict Act on wrongful acts (‘Wet
conflictenrecht onrechtmatige daad’) will still be applicable. Similarly, the Court of first instance in
Utrecht decided ex officio that on claims for wrongful acts that took place before 11 January 2009,
the applicable law is to be determined in accordance with the conflict rules of the Dutch Conflict Act
on wrongful acts.63 The judges noted ex obiter that if the acts had taken place after this date, the
Rome II Regulation would have been applicable ex officio. However, since in the proceedings both
parties focused on the Dutch questions of wrongful act and default, under the Dutch Conflict Act on
wrongful acts as well as under the Rome II Regulation (Article 14), they had made a “tacit choice” for
the applicability of Dutch law. The latter case is of particular interest to this study, as it shows that
tacit agreements opting for the law of the forum are accepted under Dutch law, to the extent that
the relevant conflict of law rule allows for some party autonomy.
Generally, Dutch courts make no discernable difference between cases that are subject to foreign
law and cases that are subject to Dutch law. In a case that was brought before the Court of first
instance in Middelburg64, the court ruled ex officio that ‘before, based on Dutch private international
law, and since 11 January 2009, based on the Rome II Regulation, a claim from an acting manager
(‘zaakwaarnemer’), would in principle (unless there is a choice of law) be governed by the law of the
country where the act of management took place. Since the alleged act of management took place in
February 2008 in the Netherlands, Dutch law is applicable.’ The court continued by stating that,
according to Dutch law, in this case there had been no act of management and therefore the claim
was denied. Even though German law was not applicable to the case, the statement of the claimant
that, according to German law, there was an act of management was not proven by the claimant. In
another case brought before the Court of first instance in Rotterdam65, the court ex officio followed
the rules of the Rome II Regulation with regard to a case of negotiations broken off before reaching
a deal (‘afgebroken onderhandelingen’) and ruled that the transaction itself was governed by Belgian
law due to Article 4 EVO. It was explained by the fact that the transaction had the closest ties to
Belgium, even though there were two companies established in the Netherlands. With respect to the
agreement that derives from the demolished negotiations, also Belgium law is applicable since the
transaction itself would have been governed by Belgian law (Article 12 (1) Rome II Regulation).
On 1 October 2009, the Amsterdam court of first instance ruled ex officio that the Rome II Regulation
governs what foreign law is applicable in a case of pre-contractual liability, namely to the threat of a
wrongful act.66 The case dealt with database law which is not an area of law that is specifically
62
63
64
65
66
Hof Arnhem 28 juli 2009, LJN:BK9704, NIPR 2010/28/2, nr. 170.
Rechtbank Utrecht 28 juli 2010, LJN: BN2268, NIPR 2010/28/4, nr. 454.
Rechtbank Middelburg 22 juli 2009, LJN: BK8833, NIPR 2010/28/2, nr. 183.
Rechtbank Rotterdam 21 oktober 2009, LJN: BK3279, NIPR 2010/28/2, nr. 186.
Voorzieningenrechter Rechtbank Amsterdam 1 oktober 2009, LJN: BJ9179, NIPR 2010/28/1, nr. 78.
24
Legal Summary
mentioned in the Rome II Regulation. Moreover, according to the court, database law could not be
considered as intellectual property law, to which Article 8 of the Rome II Regulation could be applied.
Therefore, Article 4 of the Rome II Regulation would apply in this case, thereby designating the law of
the country where the alleged (threatened) damage was to have taken place as the applicable law. In
this matter, that place would be The Netherlands; thus Dutch law was declared applicable. Another
argument used by the court was that the claimant refered to the Dutch Database Act; since the
defendant did not object, Dutch law would also be applicable pursuant to Article 14 of the Rome II
Regulation.
In a more recent case, the Court of Appeal of Den Bosch67 was faced with the issue of whether a
contract had been concluded and therefore, whether the issue was subject to the Rome I or the
Rome II Regulation. The Court decided as follows: the Rome II Regulation states that the applicable
law is the law that would have been applicable if a contract had been concluded (art 12 para1). In
such a case, the Rome I Regulation would designate the applicable law and, as explained by the
Court, the Rome I Regulation would therefore also be applicable to determine whether or not a
contract had been concluded between the parties. No choice of law had been made by the parties.
The claimant stated that they had chosen Dutch law but the defendants disputed that statement and
claimed that German law was applicable. According to Article 4(1c) Rome I Regulation, German law
was indeed applicable to the question whether or not a contract had been concluded.
1.3.1.5. The United Kingdom.
The research has revealed few published and/or reported cases in which British courts have referred
to the Rome II regulation. The relevant courts are all courts of England and Wales, which handle the
great majority of cases litigated in the United Kingdom. The main issue discussed in four out of the
six cases is that whether the regulation was applicable in the temporal context, i.e. whether it applies
to facts which occurred before it came into force. That is to be expected in the early days of the
operation of any legislative instrument, whether European, national or local. The named cases are
examined individually and in chronological order below.
The earliest published case and so far the only one to have been included in law reports, is Maher
and Maher v. Groupama Grand Est.68 It concerned an accident which had occurred in France in 2005.
As the judgment was handed down after the Rome II regulation had come into force, Mr. Justice Blair
of the Queen’s Bench Division of the High Court considered it in the course of his reasoning. He
noted69 that it reversed the pre-existing rule of English private international law that the nature of
the remedy available to a victim of a tort is to be determined according to the lex fori, rather than
the lex causae. He also held that, because the accident had occurred before 2007, the Rome II
regulation was not applicable to the case before him and went on to apply the relevant rules of
English private international law, as modified by the Private International Law (Miscellaneous
Provisions) Act 1995.
67
68
69
Hof‘s-Hertogenbosch, 14 december 2010, LJN : BO8197 (not published yet in NIPR, available on
www.rechtspraak.nl; in Dutch, 24.1.11).
[2009] 1 All England Law Reports 1116.
In par. 16 of his judgment, on pp. 1121-1122 of the report.
25
Legal Summary
The first known case to have actually applied the Rome II regulation is Bonsall v. Cattolica
Assicurazioni.70 It arose out of a traffic accident which had occurred in Italy in 2008 and was decided
two days after the Regulation had come into force. It was held at Winchester County Court that the
Regulation must be applied ratione temporis to damage occurring on or after 20 August 2007 and
therefore had to be applied in that case. One of its effects, held the County Court judge, is to require
damages to be calculated according to the lex causae designated by the Regulation, rather than
according to the lex fori.
The issues next arose before Mrs. Justice Slade of the Queen’s Bench Division of the High Court in the
case of Homawoo v. GMF Assurance SA.71 The traffic accident which gave rise to this case had
occurred in France on 29 August 2007. The English proceedings were commenced on 8 January 2009,
i.e. three days before the Regulation came into force. Her Ladyship held that the applicability of the
Regulation to this case was an issue too important for her to decide. She therefore referred that
issue to the ECJ for a preliminary opinion.72 She went on however, by way of obiter dicta, to note her
opinion as to the manner in which the Regulation would have to be applied if it turned out to be
applicable in the case; damages would have to be assessed, under Art. 15(c) of the Regulation, in
accordance with the French lex causae, rather than in accordance with the English lex fori.73
Three days after judgment had been given by Mrs. Justice Slade, one of her brother judges, Mr.
Justice Tomlinson, reconsidered the matter in Bacon v. Nacional Suiza Cia. Seguros y Reseguros S.A.74
This case arose out of a traffic accident which had occurred in Spain on 7 September 2007. The
parties agreed that Spanish law was the lex causae and each of them presented expert evidence on
Spanish tort law governing liability for injuries resulting from road accidents. His Lordship carefully
considered that evidence and concluded that Spanish law imposed no liability on the defendant in
that case. This finding rendered completely obiter His Lordships statements on the remaining issues.
Those statements were that the Rome II regulation applies to injuries suffered on or after 20 August
2007 and that its effect upon the pre-existing English rules of conflict of laws is to remove the
principle that only the heads of recoverable damage are governed by the lex causae, while the
assessment of the recoverable value of that damage is governed by the lex fori, replacing it with a
principle that both of those aspects are governed by the lex causae.75 On the former issue of
applicability ratione temporis, His Lordship undertook76 a lengthy and convincing analysis of general
principles of European Law and concluded that the point was too clear to require a reference to the
ECJ.
The Rome II regulation was then considered by the Court of Appeal of England and Wales for the first
(and so far only) time. Jacobs v. Motor Insurers Bureau77 involved a claim by an English resident
against the British public authority which is responsible for paying the damages awarded to victims of
road traffic accidents caused by uninsured drivers. As the accident had in this case occurred in Spain
70
71
72
73
74
75
76
77
The case is unreported and we are not in possession of a copy of the judgment. Details of the case
have been provided to us by Interiura UK Ltd. (the British element in the “inter iura” foreign claims
handling network), which represented the Italian defendant in the proceedings.
[2010] EWHC 1941 (QB), judgment of 27 July 2010.
As far as we are aware, the Court of Justice has not yet given its preliminary opinion.
Refer to par. 7 of the judgment.
[2010] EWHC 2017 (QB), judgment of 30 July 2010.
Refer to par. 3 of the judgment, citing Art. 15(c) of the Rome II regulation.
In pars. 37 to 66 of his judgment.
[2010] EWCA Civ 1208, judgment of 27 October 2010, overturning the first instance decision of Mr.
Justice Owen of the Queen’s Bench division of the High Court, which had been published as [2010]
EWHC 231 (QB).
26
Legal Summary
in December of 2007, counsel for the Bureau invoked the regulation as a basis for limiting the
damages to those which would be payable under Spanish law. Most of the judgment of the Court of
Appeal analyses the meaning and effect of the EU’s Motor Vehicle Insurance Directives and of the
British regulations which implement the Fourth Directive. These require the Bureau to compensate in
accordance with the lex fori any person who is habitually resident in the United Kingdom and was
injured by an uninsured driver in another Member State. It was held78 that this requirement is not a
principle of conflicts of law, which would have been overridden by the Rome II regulation under the
supremacy principles of European Law, but rather a definition of the duties of the Bureau within the
Union-wide framework for compensation of victims of uninsured drivers. The Rome II regulation was
therefore considered to be of no relevance in this context.
The most recent case to have considered the Rome II regulation is the only one which did not arise
out of a traffic accident. Hillside (New Media) Ltd. v. Baasland79 instead concerned threats made by
the Norwegian respondent to sue the English applicant in order to recover losses which the
respondent had incurred while playing on the applicant’s gambling website while the respondent
was in Norway, Germany, Denmark and the Czech Republic. The applicant asked the High Court of
Justice of England and Wales to issue a so-called “negative declaration” to the effect that it was not
liable to the respondent in contract or in tort. Mr. Justice Andrew Smith noted80 that the
respondent’s gambling activities had commenced before and continued after 20 August 2007 and
that this fact raised the issue of the applicability ratione temporis of the Rome II Regulation. He held
that he did not need to decide that question, because English law governed the possible claims of the
respondent under both the regulation and the pre-existing English principles of conflict of laws. In
respect of the regulation, His Lordship first arrived at that conclusion by applying the tests set out in
Arts 4(1) and 4(2) to the very complicated circumstances of using modern cross-border internet
gambling services.81 He then added that, if his analysis were flawed, he would arrive at the same
result under Art 4(3), on the basis that the respondent’s claims in tort were manifestly more closely
connected with England than with any other country.82 Finally, he considered Art 5 and held that it
did not require the application of the law of the country (Norway) in which the party acting as consumer was habitually resident, because the provisions of Art. 5 were not satisfied in this particular
case.83 His Lordship was thus able to dispose of the case under the lex fori, finding that a provider of
gambling services is ordinarily not liable under English law for losses incurred by punters using his
services, and made the declaration sought by the applicant.
It may be noted that this last case was the only one in which an application of the principles set out
in the Rome II regulation resulted in a resolution of the dispute according to English law, which in
cases decided by English courts is, of course, the lex fori. Mr. Justice Andrew Smith did not apply this
law qua lex fori however, but rather as the lex causae which he considered the regulation required
him to apply. Whether that view is correct is a question of European Law, which will be resolved over
time, if and when similar cases are decided by courts in other EU Member States.
78
79
80
81
82
83
At pars. 35 to 38 of the judgment of the Court of Appeal.
[2010] EWHC 3336 (Comm), judgment of 20 December 2010. The case was assigned to the so-called
“Commercial Court”, which is actually a list of cases heard by specialised judges of the High Court of
Justice.
In pars. 22 to 25 of his judgment.
Refer to pars. 26 to 40 of the judgment.
Refer to par. 46 of the judgment.
Refer to pars. 42 and 43 of the judgment.
27
Legal Summary
There is no indication in any of the published judgments that the parties had agreed to apply any
particular law, whether or not the law designated by the Rome II regulation as applicable to the
dispute. In those cases in which the main issue was the applicability ratione temporis of the
regulation, the defendants always argued in favour of its applicability, it being clear to everyone that
this would result in damages being calculated accordingly to relatively miserly rules of the foreign
leges causae, while the plaintiffs argued to the contrary and thus in favour of calculation according to
the relatively generous rules of the English lex fori. These would again appear to have been perfectly
legitimate arguments of European Law as to the correct scope of application of the regulation. The
situation was somewhat different in the last case, where the respondent, who had an interest in the
selection of some legal system other than English law to govern his claims, was not represented at
the hearing and therefore made no arguments with respect to the regulation. Mr. Justice Andrew
Smith’s judgment84 may indicate that counsel for the applicant argued only against the applicability
of the regulation ratione temporis and presented no submissions as to what would be its effect if it
were applicable, so that His Lordship’s extensive analysis of the latter issue was effectively
undertaken ex officio. This clearly indicates that the British judiciary is willing and able to conduct
research into European Law and apply it as part of the modern British legal order, but that does not
mean that a similar approach is being taken to foreign law which European Law might designate as
applicable to a particular case. Indeed, Mr. Justice Andrew Smith noted85 that the court had not been
supplied with any evidence about the law of Norway or any other foreign country and that if he had
found that either the Rome II regulation or the pre-existing rules of English private international law
required application of a foreign law, he would in any case have had to assume that the foreign law
was identical to English law.86 In conclusion therefore, the recent cases considering the Rome II
regulation give no reason to believe that the courts of England and Wales will treat it differently from
other EU directives and regulations containing choice of law rules. Like all other choice of law rules,
these have no effect upon the process of establishing the content of the law chosen, which is an
issue of the law of evidence, rather than of private international law.87
1.3.2. General Observations and Detected Problems
Due to the scarcity of cases revealed, no general conclusions may be drawn with respect to the
application of the Regulation. Some observations pertaining to the scope of the study may still be
made.
Despite the fact that the scope of the “Rome II” Regulation concerns issues that may be qualified
within certain legal systems as non-mandatory, there is no evidence in the discovered cases that
such qualification may undermine the Regulation’s efficiency. The existing jurisprudence, however
scarce, reveals no malfunctioning and no particular problems in interpretation of the rules
contained in the Regulation. The law designated by the Regulation has always been applied and
never evicted in favor of lex fori88.
84
85
86
87
88
At pars. 20 et seq.
At par. 21 of his judgment.
Refer below, to point 3.1. of this national contribution.
Within the English legal system, foreign law has the status of facts and the establishment of facts in
legal proceedings is a matter of the law of evidence; refer to H.M. Malek (gen. ed), Phipson on
th
Evidence, 16 ed, London: Sweet & Maxwell, 2005, Chapter 1, in particular on p. 25, at Fn. 15 and 16,
and to the jurisprudence cited there, as well as to S. Sime & D. French (eds), Blackstone’s Civil Practice
th
2009, 9 ed, Oxford: Oxford University Press, 2008, par. 47.100, which is part of “Chapter 47 General
Law of Evidence”.
Refer to the present Study, Part I, “Germany”, fn 24.
28
Legal Summary
The analyzed cases show that conflict-of-law rules contained in the Regulation are subject to the
same treatment as national conflict-of-law rules would be. The communitarian origin of the conflictof-law rules does not change, neither de jure, nor de facto, the status of such rules before the
Member States courts89.
1.4.
Application of conflict of law rules in the fields of particular interest
for the EU law
EU conflict of law rules have recently been introduced or are under preparation in some particular
areas, such as maintenance obligations90, matrimonial property regimes91, divorce92 and
successions93. Bearing in mind the particular interest of these fields for the EU law, the relevant
legislation and practices of the twenty-seven Member States were subjected, upon a specific request
of the EU Commission, to a comprehensive comparative analysis. The findings of the study include,
for each Member State, a description of the national conflict of law rules and of the manner in
which the judges (or non-judicial authorities) apply those rules, when they indicate that a foreign
law is applicable. The objectives of the study was to find out, first, how foreign law is applied in the
mentioned fields, and second, how the eventual adoption of the EU conflict of law rules may
influence the existing practices and vice versa.
The findings of the study are specific for each Member State, hence we hereby refer to the National
reports for detailed analysis thereof. In general, foreign law designated and applied in the four of the
named fields of law is subject to the general regime of procedural treatment of foreign law. The
general observation that has to be emphasized is that foreign law in the fields of maintenance
obligations, matrimonial property regimes, divorce and successions is subject to no specific or
exceptional treatment. The rare deviations from the general regime, as well as some other findings
pertaining specifically to application of foreign law, are summarized below.
89
90
91
92
93
Refer to the present Study, Part I, “Bulgaria”, sec. 1.3.
Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition
and enforcement of decisions and cooperation in matters relating to maintenance obligations.
Green paper on conflict of laws in matters concerning matrimonial property regimes, including the
question of jurisdiction and mutual recognition, July 17, 2006, COM(2006) 400 final.
Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and
introducing rules concerning applicable law in matrimonial matters, July 17, 2006, COM(2006) 399
final, 2006/0135 (CNS).
Proposal for a Regulation of the European parliament and of the Council on jurisdiction, applicable
law, recognition and enforcement of decisions and authentic instruments in matters of succession and
the creation of a European Certificate of Succession, October 14, 2009, COM(2009)154 final,
2009/0157 (COD).
29
Legal Summary
1.4.1. Maintenance obligations
In the countries providing for a dual regime of conflict of law, disputes concerning maintenance
obligations are generally regarded as non-mandatory, with the exception of Denmark where the
issue is not definitively resolved and Finland. In all the remaining States, such disputes may thus be
subject to procedural agreements renouncing from application of foreign law.
In common law systems (with the exception of Malta), disputes regarding maintenance obligations
are normally subject to lex fori, thus leaving no room for application of foreign law. The introduction
of the EU conflict of law rule based on the criteria of the habitual residence would probably provoke
an increase in the number of cases where foreign law is pleaded. A homeward trend (in favor of lex
fori) in the field of maintenance claims is observed in Estonia and Latvia.
In the systems providing for mandatory choice of law, the entry into force of the Regulation 4/2009
will lead to introduction of the possibility of procedural agreements hitherto unknown in this field.
1.4.2. Matrimonial regimes
In the countries providing for a dual regime of conflict of law, disputes regarding matrimonial
regimes are generally regarded as non-mandatory, with the exception of Denmark where the issue is
not definitively resolved. In all the remaining States, such disputes may thus be subject to procedural
agreements renouncing from application of foreign law. This is partially explained by limited party
autonomy in this field. The admission of choice of law seems to make the matter rather open for
foreign law, as some countries report frequent application of foreign legislation in this field (e.g.
Greece).
In Great Britain and Ireland, in case of divorce or dissolution of a partnership, courts must always
apply the lex fori. Yet, it is possible to reach an agreement concerning the foreign law applicable to
matrimonial property issues.
A certain homeward trend (in favor of lex fori) in the field of matrimonial regimes is observed in
Latvia, where the possibility of foreign law application is limited in disputes of a patrimonial nature
whenever the assets at stake are located on Latvian territory.
1.4.3. Divorce
In the countries providing for a dual regime of conflict of law, disputes in the field of divorce are
governed by mandatory conflict of law rules, as the effects of marriage belong to the field of
personal status (traditionally recognized as public interest). Such disputes may only be subject to
procedural agreements renouncing the application of foreign law, if the relevant conflict of law rule
allows for a choice of law. Most of the Member States recognizing this mandatory character reported
that this was generally respected by the judges (e.g. Luxembourg, France, Belgium, Portugal, Spain).
It may be observed that the field of divorce leaves little room for application of foreign law. In
Cyprus, Denmark, Ireland, Latvia and the United Kingdom, courts normally apply the lex fori to all
issues arising in respect of divorce. It is highly unlikely that foreign law will ever be applied in this
30
Legal Summary
field. In Malta, until the recent adoption of amendments to the Civil Code94, it was impossible for the
judge to pronounce a divorce by applying foreign law (as that remedy did not exist under Maltese
law). That is reported to have been the principal reason for Malta’s withdrawal from the Rome III
adoption process and its inability to participate in enhanced cooperation in the area of the law
applicable to divorce and legal separation95. The situation is likely to change with the entry into force
of the amendments to the Civil Code legalising divorce after legal separation of four years96.
However, considering that these amendments to the Civil Code do not contain any conflict of law
rule, it is highly probable that Maltese courts will follow the approach taken by the English courts97
and apply the lex fori to all cross-border disputes in respect of divorce.
A certain homeward trend (in favor of lex fori) in the field of divorce is observed in the Netherlands,
where national law is reported to be applied to almost all of the cross-border divorce proceedings,
save the cases of couples with common foreign nationality. A similar trend is observed in Finland and
Sweden. In Estonia, a certain tendency of the judges to overlook foreign elements and apply
domestic law has been reported.
1.4.4. Successions
In the countries providing for a dual regime of conflict of law, disputes concerning succession are
generally considered non-mandatory. Such disputes may thus be subject to procedural agreements
renouncing from application of foreign law.
In the United Kingdom and Ireland, parties can make binding admissions as to the foreign law
applicable to issues related to succession. It may be inferred that parties should also be able to reach
binding agreements in that respect.
The principle of scission (subjecting movable and immovable property to different laws) practiced by
a large number of Member States implies that every succession is governed by at least two laws, at
least one of which is foreign. It may thus be legitimately inferred that the scission principle is
responsible for a large number of “foreign law” cases, which otherwise could have been adjudicated
according to national law.
In some countries (e.g. Latvia), succession is a field of law, which is exclusively subject to domestic
law. No party autonomy is allowed in this field, such a construction of private international law rules
leaves no place for foreign law, and in practice, notaries and courts always apply domestic law.
94
95
96
97
Act No. XIV of 29th July, 2011 to amend the Civil Code, Cap. 16.
Council Regulation (EU) No. 1259/2010 implementing enhanced cooperation in the area of the law
applicable to divorce and legal separation of 20 December 2010.
Art. 66B (a) of the Civil Code as amended.
A. Bergmann & M. Ferid, Internationales Ehe- und Kindschaftsrecht, Verlag für Standesamtswesen,
Band XI, Kap.: Malta, s. 23.
31
Legal Summary
2.
Foreign Law Ascertainment
The procedural regime of foreign law ascertainment (qualified in some Member States as “proof of
foreign law”) has been studied, for each Member State under the rubric of the following issues: the
set of rules on the distribution of the burden of proof (2.1), admissible proof (2.2), the international
mechanisms providing access to information on foreign law (2.3) and the distribution of costs related
to application of foreign law (2.4).
2.1.
The Distribution of the Burden of Proof
The effective application of foreign law depends on the proper allocation of the duty to establish its
contents98. It is generally accepted that national approaches diverge less at the stage of application
of foreign law than on the stage of its designation. However, despite the apparent similarity of
national approaches, a convergence of legal and judicial approaches is not yet a reality in Europe.
The study shows that the European Judicial Area is now divided between four models of procedural
treatment of foreign law.
The first model provides a solution consistent with the Anglo-Saxon civil procedure: in these States,
the burden of "proof" of foreign law belongs exclusively to the parties (Ireland, Latvia, Luxembourg,
United Kingdom). The judge's role in the establishment of foreign law is doubly limited. First, any
research or use of personal knowledge of foreign law applicable to the case is prohibited for the
judge, as is any reference to provisions that have not been raised by the parties99. Second, if the
content of foreign law has not been contested by the other party, this evidence is binding on the
judge and obliges him to settle the dispute according to the provisions set forth by the parties100.
The second model includes the Member States that vest in the judge the duty to establish ex officio
the content of the law (Austria, Bulgaria, Germany, Estonia, France, Italy, Netherlands, Poland,
Romania, Slovenia, Spain). However, the judge rarely bears this procedural burden alone. The active
role of the judge in the stage of constituting and construing evidence in these States does not
exclude parties’ assistance in the ascertainment of foreign law, either at the request of the judge,
either on their own initiative. (This is the case, for example, in Estonia, France, the Netherlands,
Romania, and Slovenia).
In some Member States belonging to the third model (Lithuania, Czech Republic, Slovakia), the
distribution of tasks between the judge and the parties takes place according to the criterion of the
dual regime of conflict of law rule underlying the application of foreign law. When the conflict rule is
non-mandatory (optional choice of law), establishing foreign law is usually incumbent on the party
invoking its application. When the rule is mandatory (mandatory choice of law), the court shall
determine the content of the applicable rule. It appears that the designation of the applicable law is
non-mandatory in contractual matters, within the realm of civil law, commercial law or labor law
(Czech Republic, Slovakia), or, more generally , in the fields subject to party autonomy (Lithuania).
98
99
100
Groupe européen du droit international privé (GEDIP), Les effets de l’harmonisation sur la preuve et
l’application du droit étranger, 5e réunion, Genève, 29 sept.-1oct., 1995.
Cf. in England : Duchess Di Sora v. Phillipps [1863] 10 H.L.Cas. 624, 640; BumperDevelopment Corp. v.
Commissioner of Police of the Metropolis [1991] 1 W.L.R., 1362, 1369.
Buerger v. New York Life Assurance Co. (1927) 96 L.J.K.B. 930 (C.A.).
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Yet, the criteria of mandatory choice of law are less precise: in Czech Republic as in Slovakia, these
criteria include property rights, matters of succession and family law, as well as issues of status and
capacity of person and in Lithuania, the imperativeness conflict rules is directly related to the origin
of these rules (international treaty or domestic law).
The fourth model is based on an a case-by-case approach aiming at optimizing the costs of
ascertaining the contents of foreign law based on the merits of the case, the material resources of
the parties, the personal knowledge of the judge, the accessibility of procedural means of
ascertainment of foreign law to the parties and to the judge, etc. This model, which we call
"collaborative model" is in place in a small number of Member States (Finland, Sweden and, to some
extent, Portugal).
In none of the Member States, judges have a particular duty to ascertain the applicable law when the
latter is designated by an EC Regulation or an EC Directive. However, the described divergences of
procedural treatment of foreign law means that the effect of the EU conflict of law rules shall also
vary depending on the Member State. It may thus be argued that the principle of effectiveness of
Community law may command, in the future, that the judge's role in controlling processes of
ascertainment of foreign law, be reinforced, at least when it is designated by the EU conflict of law
rules.
2.2.
The Diversity of the Admissible Means of Proof
The range of admissible forms of evidence is often decisive for a successful application of foreign law
to the case. As a rule, the larger the range of admissible proof, the greater are the chances of the
parties to establish the contents of foreign law to the satisfaction of the judge. In this respect, legal
systems analyzed can be divided into two groups. The first group is represented by the systems that
do not introduce restrictions on forms of admissible evidence with respect to ascertainment of
foreign law (Germany, Estonia, France, Netherlands, Poland, Romania, Slovenia, Sweden). The second
group is represented by the systems that impose restrictions on the forms of admissible evidence
(Ireland, Latvia, United Kingdom).
With the exception of common law systems, all Member States analyzed allow for documentary
evidence (not corroborated by oral testimony of an expert) for the purposes of ascertainment of
foreign law. This is particularly important in the perspective of free exchange of documentary
information in the European Judicial Area, e.g. particularly in view of the possible development of the
‘Certificat de coutume europeen’ (CCE). Introduction of the latter within the European judicial area
was proposed at the 101st Congrès of French Notaries in 2005, as a possible remedy to difficulties in
accessing reliable information of foreign law101. The envisaged instrument is a means of direct
cooperation between judicial and non-judicial authorities within the Europe’s Area of Freedom,
Security and Justice for the purposes of ascertainment of foreign law. The idea underlying the CCE is
the principle of mutual recognition of documentary evidence issued by judicial and non-judicial
authorities of EU Member states, namely for the purposes of rapid and reliable ascertainment of
Member State’s law. This objective may be reached by establishing a single (universal) document
that would enjoy the same probative force in every Member State and would be automatically
admissible and recognised, whatever the model of civil procedure. Bearing this in mind, it has been
101
J.-Fr. Sagaut, M. Cagniart, « La dynamique communautaire à la rencontre des familles », Travaux de la
e
3 Commission du 101e Congrès des notaires de France, JCP not., 24 juin 2005, p. 1313 et s.
33
Legal Summary
suggested that, upon proposal of the EU Commission, the Council of the EU adopts a new regulation
bearing the European Certificate of Law. Based on the model of the European Enforcement Order102,
the suggested regulation shall give an autonomous definition of the European Certificate of law,
charge the Member States with designating the authorities and professionals competent to deliver
such certificates, vest such documents with probative force on the territory of the EU and abolish the
formalities that may otherwise condition immediate recognition of such documents in Member
States.
When the duty to establish the contents of foreign law is vested in the judge, with the exception of
common law systems, all Member States analyzed allow the judiciary to use personal knowledge and
undertake personal research on the applicable law. The finding is of particular importance for the
development of systems of direct cooperation between the judges for the purposes of law
ascertainment. In view of the development of the European Judicial Network in civil and
commercial matters, the national judge becomes a key player in the framework of trans-European
access to the content of national law. In this perspective, it seems important to enable the judge
power to obtain and exploit personal knowledge of foreign law, through points of contact within the
European Judicial Network, as well as and through liaison magistrates.
2.3.
The Efficiency of the International Mechanisms Providing Access to
Information on Foreign Law
International judicial cooperation is a reliable way to ensure access to reliable and unbiased
information on foreign law. The procedural law of all States subjected to the present research
encourages the judge to resort to international mechanisms for the purposes of ascertainment of
foreign law.
However, in the absence of a true reflex of using judicial cooperation mechanisms, the latter remain
ineffective. The European Convention of 7 June 1968 in the field of information on foreign law
(known as ‘the London Convention’) provides an example of a promising mechanism of cooperation,
whose potential remains unknown and unused in the European Judicial Area. In order to better
integrate the positive acquis of the London Convention in the practice of European judicial
cooperation, it is necessary to identify - both in the Member States’ domestic law and in the
Convention itself - the reasons of the Convention’s ineffectiveness.
The study identifies the following alleged "flaws" of the Convention. The first reason of the
Convention’s ineffectiveness seems to lie in the general unawareness of the European judiciary in
the existence and the advantages of this instrument. The second reason lies in the limited scope of
potential users: the mechanism of the Convention is only open to judicial authorities of the
Contracting States (art. 3). Bearing in mind that in some States judges are prohibited from
undertaking their own research on the content of foreign law, the effectiveness of the Convention is
seriously undermined. Finally, the Convention does not resolve a key practical problem, namely, the
102
Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a
European Enforcement Order for uncontested claims, 21.01.2005, OJ L 143, 30.04.2004 and the
amending Commission Regulation (EC) No 1869/2005 of 16 November 2005.
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Legal Summary
costs relating to obtaining information on information on foreign law. In some cases, the Convention
tends to weigh them down (Article 14 § 1)103.
The same analysis has been conducted on the European Judicial Network in civil and commercial
matters. In fact, the decision 568/2009/EC of the European parliament and of the Council of 18 June
2009 vesting the Network with the duty to facilitate the application of the law of another Member
State whenever it is applicable under a Community or international instrument, entered into force on
January 1, 2011. It is therefore too early to assess the capacity of this mechanism to effectively
address the ever-growing need to access to foreign law in Europe104.
2.4.
The Distribution of Costs Related to Application of Foreign Law
2.4.1. Available cost distribution schemes
The existing schemes according to which the costs related to application of foreign law are allocated
depend on the distribution of the duties in relation to ascertainment of foreign law. In Member
States having adopted a mandatory (ex officio) approach to the conflict of law rules and to
application of foreign law, the costs related to application of foreign law are usually born by the
court, provided that such cost are not qualified as “litigation costs”. In general, expenditures related
to ascertainment of foreign law are not qualified as litigation costs, when the judge addresses official
requests for information of foreign law to the Ministry of Justice, via the diplomatic channels or
through the mechanism of the European Convention on Information on Foreign Law. The same
principle applies when the judge conducts his own research for the purposes of law ascertainment.
Costs generated by the use of these mechanisms are borne by the State’s budget (Bulgaria, Czech
Republic, Estonia, Germany, Hungary, Latvia, Lithuania, Poland, Romania, Slovenia, Slovakia,
Sweden). Noteworthy is the fact that in none of these States the tribunals dispose of a special budget
allocated for the purposes of foreign law ascertainment.
When the procedural measure with respect to foreign law ascertainment is requested by the party,
costs related thereto are born the requesting party. If such a request has been submitted by both
parties, they shall pay the required amounts in equal part (Greece, Italy).
When the costs related to application of foreign law are born by the parties, in some countries the
court may provide assistance in collecting information on the applicable foreign law (Lithuania). In
such case the court might reduce the costs related to application of foreign law which are born by
the party.
2.4.2. Types of Costs Related to Foreign Law Ascertainment
When a procedural measure designed to permit foreign law ascertainment is requested by a party,
then the costs related to application of foreign law (such as translation fees, experts’ fees and public
103
104
For an in-depth analysis of the precise juridical short-comings of the London Convention and the
practical problems raised by the stakeholders, refer to the Present Study, Comparative Analysis, 4.3.
Cf. K. MacDONALD, « The Reform of Procedures for Dealing with Foreign Evidence : A Practitioner’s
Agenda », in Dealing with European Evidence : Practical Reforms Needed to Improve Mutual Legal
Assistance, the Materials of ERA and CPS Conference, 18-20 November, 2004, Trier.
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Legal Summary
certification fees) are, with no exception, qualified as “litigation costs”, i.e. cost that are necessary for
the adjudication of the matter. They are thus subject to apportionment between the parties at the
end of the procedure.
It needs to be emphasized that expert’s fees and honorariums levied by specialized institutions for
legal opinions, affidavits and reports on the contents of a foreign law usually fall within the scope of
litigation costs, even when they are commissioned by the judge (Austria, Bulgaria, Denmark,
Germany, Luxembourg, Czech Republic, Latvia, the Netherlands, Portugal, Slovenia ….). Such costs
are thus distributed between the parties. For this reason, a prior parties’ consent is invariably
required, when such procedural measured are ordered by the judge ex officio.
2.4.3. ‘Loser Pays All’ Principle
In a number of countries, the litigation costs are attributed to the losing party (Austria, Belgium,
Czech Republic, Germany, Greece, Hungary, Luxembourg, the Netherlands, Portugal, Romania,
Slovenia, Slovakia, Spain, Sweden) at the end of the procedure. As long as it is the parties that have
incurred costs in relation to the collection of evidence on the content of foreign law, it is possible for
the winning party to successfully seek reimbursement. However, the courts are given discretionary
powers to decide upon the issue of judicial costs and how the said costs are to be apportioned
between the parties. In Luxembourg, the procedural law enables the judge to allocate fees that are
not legally qualified as litigations costs. Thus, should the costs related to ascertainment of foreign law
fail to be qualified as “litigation costs (dépens)”, the judge may still the order the losing party to pay
such cost, in the name of equity105 or the courts could set a fair amount of costs that can be claimed
to cover the expenditures for the expert fees (Malta).
2.4.4. Available Legal Aid Schemes
When the costs related to application of foreign law are born by the parties, none of the Member
States provide for a specific legal aid system covering the costs related ascertainment of foreign law.
The existing national laws on legal aid usually do not specifically cover the costs related to application
of foreign law.
However, with the exception of the Netherlands, the available legal aid schemes generally include
types of fees, that may be inter alia generated by attempts to ascertain the tenor of applicable law,
i.e. expert’s fees, translator’s and interpreter’s fees and fees related to establishment of official
documents/certificates (Belgium, Cyprus, Denmark, Finland, France, Latvia, Luxembourg, Sweden). It
may thus be concluded that in large proportion of Member States, applicants may successfully seek
legal aid to finance cost related to procedural treatment of foreign law under the general legal aid
schemes. Some blatant divergences are still to be observed. Thus, in Austria, Legal aid can cover
costs for the fees of legal experts or translators106. In Bulgaria, however, the same costs are not
covered by the general legal aid scheme.
In the Netherlands, Article 12(1) of the Legal Aid Act provides that legal aid will only be provided for
issues of Dutch law for persons and legal entities who have limited means (the financial conditions
are also laid down in the Legal Aid Act and regulations deriving there from). Since the conflict-of-law
rules are considered Dutch law, this would theoretically fall within the scope of the legal aid system.
However, when these conflict-of-law rules determine that foreign law is applicable, the Dutch legal
105
106
Art. 240 of the New Code of Civil Procedure of Luxembourg.
§ 64 sect. 1 lit. 1c Austrian Act on Civil Procedure.
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Legal Summary
aid system does not cover the costs for the determination of foreign law since this is not an issue of
Dutch law.
In Finland, a party can have legal aid for costs related to the application of foreign law under the aid
provisions in the general Legal Aid Act107. General legal aid covers all expenditures necessary for the
case, such as counsel's fees and charges, interpretation and translation costs, witnesses' fees and
initial claim costs. In Sweden, the possibility to obtain legal aid is to a large extent made dependent
on the existence of legal assistance insurance. Such insurance is obligatory within the field of
household insurance and, consequently, there are few situations in which the act on legal aid will
apply. However, if aid is provided for it will cover costs in relation to the collection of evidence,
including evidence as to the content of foreign law. In Luxembourg, the Grand-Duchy Regulation on
judicial assistance of 18/09/1995 expressly covers honorariums of technical experts, court taxes for
witnesses, translators’ and interpreters’ fees, fees for certificats de coutume (‘affidavit’)108. In Spain,
fees related to obtaining documentary evidence, as well as experts’ fees are covered by the general
legal aid scheme109. Experts’ opinions, including legal opinions on foreign law are free of charge for
beneficiaries of legal aid in Spain.
The access to legal aid is generally subject to an income test and a merit test. When applying the
latter criteria, the applicant’s chances to succeed in realizing the specific procedural measure, for
which the funding is sought, may be assessed by the court or by the competent legal aid organism. It
is true that in matters relating to ascertainment of foreign law, the difficulties in access to foreign
legal information make the chances to succeed in getting complete information rather uncertain. In
Germany, this issue has been specifically addressed by jurisprudence. It has thus been decided that
uncertainty of availability of information on foreign law may not constitute a ground for refusal of
legal aid for this purpose110. However, the court may as well refuse the application for legal aid for
the purposes of foreign law ascertainment, if it deems that the claim could be better and faster
treated before the court of the relevant foreign country, as costs related to application of foreign law
could thus be avoided111.
2.4.5. “Costs Related to the Cross-Border Nature of the Case”
It is observed that only a few Member States qualify the fees related to ascertainment of foreign law
as “Costs Related to the Cross-Border Nature of the Case”, in the sense of the Directive 2003/08/CE
of 27 January 2003 on improvement of access to justice in cross-border disputes.
In Portugal, the Law on Legal Aid contains provisions on legal aid aimed at alleviating procedural
charges specifically related to cross-border nature of the dispute that could potentially discourage
the litigants from seeking judicial remedy in another Member State. It is stated that when the claim is
brought by a person residing in another Member State, and Portuguese courts are competent to
resolve the dispute, the legal aid schemes shall include cost specifically related to cross border
character of the case112. The term “costs related to the cross-border nature of the case” is
107
108
109
110
111
112
Oikeusapulaki, 257/2002.
http://www.legilux.public.lu/leg/a/archives/1995/0081/a081.pdf#page=4 (29.06.2011).
Refer to the present Study, Part I, “Spain”, fn 74.
Refer to the present Study, Part I, “Germany”, fn 92.
E.g. Superior Regional Tribunal of Frankfurt, 2.3.1999, Neue Juristische Wochenschrift Entscheidungsdienst Familien- und Erbrecht 1999, p. 194. For other examples of jurisprudence, Refer
to the present Study, Part I, “Germany”, sec. 2.4.
Law 34/2004, Art. 14.
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Legal Summary
interpreted as comprising all possible costs resulting from procedural measures for ascertainment of
foreign law113.
In the Netherlands, art 23 of Legal Aid Act (implementing the Directive) provides for legal aid
covering 50% of the costs of an expert that has been called by the judge in cases involving Dutch
citizens that reside in another Member state. Other litigation costs, namely costs related to foreign
law ascertainment are not covered.
In the United Kingdom, specific provisions of the European Legal Aid Directive 2002/8/ESC, as
supplemented by the 1977 Strasbourg Agreement on the Transmission of Applications for Legal Aid,
are understood as requiring applications received under them to be treated in the same manner as
applications received from English or Welsh residents. 114 It is accepted that legal aid must be
available in principle to “cover costs related to the cross-border nature of a dispute”, but only
interpretation, translation and travel expenses are given as examples of such costs.115 The expense of
proving foreign law is not mentioned.
3.
Failure of Determination of Foreign Law
Subsidiary application of the law of the forum is the most widespread solution to the impossibility to
access information on foreign law. This solution is legally established in most Member States
(Austria, Denmark, Estonia, Finland, France, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg,
Poland, United Kingdom, Romania, Slovenia and Sweden). Less frequently is used the method of
searching for an alternative law designated by the relevant conflict-of-law rule or by the principle of
the most closely connected legal order (Germany, Netherlands, Portugal). Applying the law of the
forum is also possible in these States as a last resort, when the content of the alternative law cannot
be effectively established within a reasonable time.
The failure to determine the applicable law may sometimes result from the procedural behavior of
the parties. It may in particular be related to insufficient efforts of the parties to access information
on the foreign law. The Study shows that, apart from the common law jurisdictions, none of the
Member states sanction such failure of the parties. In common law jurisdictions, failure to plead
foreign law could lead, under certain circumstances, to a dismissal of the claim.
4.
The Control of Correct Application of Foreign Law116
Trial court judgments, in cases to which foreign law is applicable, are normally subject to review by
superior instances in the same way as other first instance judgments. When trial court findings are
challenged from the point of view of foreign law, a basic distinction is usually made between a failure
113
114
115
116
Refer to the present Study, Part I, “Portugal”, sec. 2.4.
Refer to secs. 8.4.2. to 8.4.4 of Part D “Narrative and Guidance” of the Legal Services Commission’s
Funding Code. The document is freely available on the website of the Legal Services Commission
(http://www.legalservices.gov.uk/docs/stat_and_guidance/ LSC_09_V1_Part_D.pdf), last consulted on
01.03.2011.
In subpar. 8.4.3.(c), ibid.
The present section contains the analysis prepared by Mr. Martin SYCHOLD, Swiss Institute of
Comparative Law.
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Legal Summary
to apply the law correctly designated by rules of conflicts of law, on the one hand, and materially
incorrect application of the applicable foreign law, on the other hand.
The legal systems of Member States are very much heterogeneous in their treatment of the former
error, when it results from a failure of the parties to the litigation to raise the foreign law issue during
the trial proceedings, as well as when it results from a lack of sufficient, convincing evidence of the
content of the applicable foreign law. A certain commonality of approach is apparent, on the
contrary, when the error results from an incorrect judicial interpretation of the relevant conflict of
law rule. Regardless of whether the judge erred in construing the relevant norm, or in determining
the law identified by the relevant connecting factor(s) (such as “domicile”, “habitual residence” or
place of performance”) to the circumstances, even those Member States which adhere to the
common law tradition treat this as an error of law, which can and indeed should be corrected by
superior instances. The legal systems of the Member States generally agree that it is open to parties
to litigation to rely upon this type of error even at the second instance of appeal.
As to the latter type of error, concerning the content of foreign law, there is again much diversity
amongst the Member States, but a common principle may be distilled from their legal systems: in so
far as appellate review covers factual, as well as legal errors made by first instance courts, the
superior courts are willing to reconsider first instances findings as to the norms of applicable foreign
law and the effect thereof on the outcome of the case at hand.
5.
Application of Foreign Law by Non-Judicial Authorities
In this section, the findings of the national reports describe how and to what extent foreign law is
applied by non-judicial authorities, outside litigation or in a pre-litigation stage. For the purposes of
this study, the term “non-judicial authority” refers specifically to notaries, public registry officers and
any other administrative authority called upon to apply rules of private law, including diplomatic and
consular authorities, mediators and other agents of alternative dispute resolution (arbitration
excluded).
5.1.
Legal framework
There are no state-made rules governing the process for application of foreign law by non-judicial
authorities. In the course of this investigation, no indications were found that there would be nonstate made rules in this matter.
In the absence of specific rules, general rules of private international law and procedure govern
application of foreign law by non-judicial authorities. In some Member States, private international
law rules expressly expand their scope on non-judicial authorities (e.g. Bulgaria). In Denmark,
although the general rules on application of foreign law are not expressly destined to non-judicial
authorities, the principle of ex-officio application of foreign law by such entities has been affirmed by
an opinion of the Danish Parliamentary Ombudsman117.
117
J.nr. 1997-0617-623 and 1997-1430-623, concerning a request addressed to the Danish Ministry of
Justice by two prisoners sentenced in England and transferred to serve their sentences in Denmark, to
take into account the English rules on parole, when granting parole in Denmark. The Ministry of Justice
refused to take the English rules into account, as there were no explicit Danish rules that obliged it to
do so. The Danish Ombudsman expressed the opinion that the Ministry of Justice had an obligation to
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Legal Summary
In Spain, however, a decision of the General Directorate of Registers and Notarial Practice
established a rule, according to which application of foreign law by non-judicial authorities is subject
to a particular legal regime, different from the one applicable to judicial authority118. The general
private international law rules and rules of civil procedure may only be applied as a subsidiary source.
National reports show that multiple non-judicial judicial authorities may be confronted to the need
to consult and/or to refer to a foreign law. However, only two categories of such authorities enjoy a
relatively clear legal framework regulating the process of “treatment” of foreign law issues in all
Member States. Such authorities - notaries (5.1.1) and public registry officers (5.1.2) – have been
subjected to an in-depth comparative analysis, the major finding of which are presented below.
5.1.1. Notaries
The positions of national legislations concerning application of foreign law by notaries prove to be
quite divergent. It seems that the dividing line between the different approaches may be drawn
according to the status of notaries, i.e. according to whether notaries are or not recognised as public
(or administrative) authorities. Several illustrations from national legislations may be quite revealing
in this context.
In Belgium, notaries are considered to bear the functions of “public authority” and “public service”.
They are thus equated to judges (“the forum”) and bear the same responsibility of applying ex-officio
conflict-of-law rules and the foreign law designated by these. A similar approach is observed in
Austria, Germany and the Netherlands. However, none of these States establish a strict duty for the
notary to ascertain the foreign law (which would be similar to jura novit curia). In Spain and Portugal,
notwithstanding the mandatory character of conflict-of-law rules, notaries are not required to
“know” and to acquire knowledge of foreign law on their own motion for the purposes of their
professional activity.
Estonian legislation expressly excludes notaries from the general regime of ex-officio application of
foreign law119. This is explained by the fact that conflict-of-law provisions are binding upon state
judicial and administrative bodies. Notaries, however, are not considered as administrative bodies
and therefore not subject to the duty to apply foreign law on the basis of the relevant conflict-of-law
rule. If foreign law must be applied or there are doubts whether it must be applied, a notary is only
obliged to inform the parties thereof and indicate such fact in the notarial deed. However, a notary
has no obligation to determine or explain the content of law of a foreign state120. The latter scheme
118
119
120
take English law into account and to ascertain the relevant information about English law.
Furthermore, the information from the prisoners about the foreign law should also be taken into
account when ascertaining the information about English law. It is reported that the Ombudsman’s
opinion can be interpreted as expressing a general principle which all Danish authorities should follow.
Although the opinions of the Ombudsman are not formally binding, the authorities follow them. For
further details, refer to Refer to the present Study, Part I, “Denmark”, sec. 5.
Dirección General de los Registros y del Notariado, Resolución de 5 febrero 2005, RJ 2005\2451 (base
de donnés payante) en el recurso gubernativo interpuesto por doña Antoinette Coronel Molina, contra
la negativa del registrador de la propiedad de Roquetas de Mar n.º 1 a inscribir una escritura de
manifestación y adjudicación de herencia, BOE núm. 82 Miércoles 6 abril 2005, 11735.
Subsection 18(5) of the Notarisation Act of Estonia. Entered into force 1 February 2002, RT I 2001, 93,
564; RT I 2010, 38, 231.
Ibid., subsect. 4-5.
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Legal Summary
seems to be true for all Member States having adopted the Latin system of notarial practice (France,
Poland).
Similarly, in France, there is no rule that specifically requires notaries to apply conflict-of-law rules.
However, as public officials - along with the registrars -, notaries are under the obligation to apply
the law and the conflict-of-law rules contained in it. In addition, the notary has a duty to provide the
clients with proper advice and should thus inform the parties of the risks incurred by the application
of foreign law, if applied in conformity with the conflict-of-law rules. However, the distinction
between dispositive and non-dispositive rights that governs the application of foreign law in France
by the judge seems to be inapplicable to the notary. Notaries must nonetheless inform their clients
of the possibility of invoking the application of conflict of law rule leading to application of a foreign
law in the context of a possible dispute121.
With regard to notaries, the principal issue is that of their territorial competence, combined with
their duty to carry out certain acts designated by the laws of the jurisdictions which appoint them. In
most of the Member States, private persons are entitled to insist that a notary carry out certain acts
upon request, if the relevant formal prerequisites are met. In Germany and Poland, however,
notaries may refuse notarial authentication, if the parties do not provide information on such law122.
Those prerequisites usually do not include any reference to the law governing the substantive
validity of the transaction or situation in respect of which the client asks the notary to act. While
notaries are normally able to inform a client that her case is governed by foreign law and able to
advise her to contact a notary in the relevant foreign country, they are not normally able to reject a
client on this basis (Bulgaria). Such a rejection may amount to a breach of the notary’s public duty
and may have disciplinary consequences for the notary. The question is therefore whether notaries,
when they find themselves in such a situation, are able to perform their notarial duties according to
the foreign law applicable to the underlying situation or transaction, rather than according to the
forum’s law on notaries. It seems, however, that none of the national legislations impose a strict duty
on the notary to ascertain the contents of the relevant foreign law and perform their duties
according to it. It may be suggested that in case of a demonstrated impossibility to ascertain the
relevant foreign law, the only effective remedy would be performing the required notarial act
according to domestic law (i.e. the law of the country where the act is performed)123. In the Member
States concerned with the problem, it is still possible to challenge the grounds of the notary’s refusal
to apply foreign law before the court or before the relevant professional supervising body (Bulgaria,
France, Germany, Portugal).
With the exception of Luxembourg, none of the Member States seems to impose on the notaries a
duty to ascertain the relevant foreign law. In Luxembourg, the notary bears the duty to ensure that a
foreign law is applicable, before requesting a certificate of law from the parties. A Luxembourg
notary shall not request the parties to prove foreign law, unless it is certain that such law is
applicable. Thus, it is considered that a Luxembourg notary must know the domestic conflict of law
rules and, if the conflict rule refers to a foreign law, must inform the parties of such law and ascertain
its content on his own motion. It is only in the case of an utter impossibility to find out the tenor of
such law, that the notary would be allowed to resort to the application of Luxembourg law124.
121
122
123
124
For further details, Refer to the present Study, Part I, “France”, sec. 5.
In Poland, Art. 81 (mutatis mutandis) de la loi polonaise relative aux notaires. Cf. OLESZKO, A.,
Stosowanie prawa obcego przez polskiego notariusza, [w:] II Kongres I Kongres Notariuszy
Rzeczypospolitej Polskiej. Referaty i opracowania, Poznań-Kluczbork 1999, s., s. 208 et s.; spec. s. 212.
Refer to the present Study, Part I, “France”, sec. 5.
M. Revillard, Droit international privé et pratique notariale, Defrénois. 2001, note 16 p. 20.
41
Legal Summary
5.1.2. Public registry officers
Although public registry officers are considered state administrative authorities, they are rarely
subject to the duty to consult and/or establish the contents of foreign law in their day-to-day
functions (i.e. while determining the prerequisites to marry). Such duty is borne by the applicant. For
instance, if foreign law is to be applied to the prerequisites to marry, the applicant is required to
must submit a certificate of no impediment to marry issued by a competent authority (Belgium,
Bulgaria, Estonia, France, Greece, Italy, Luxembourg, the Netherlands Poland, Romania). If such a
certificate is not issued in a certain state or if one of the future spouses is stateless, the competent
court may allow the spouses to enter into marriage without the certificate (Estonia) or oblige the
relevant non-judicial authority to ascertain the tenor of foreign law is borne by the (Bulgaria, Poland,
Portugal). In the Netherlands, the absence of sufficient proof of the relevant foreign law before may
lead the public registrar to refuse the requested act. It seems that the role of public registry officers
is somewhat stronger in cases where the provisions of the foreign law appear to be contrary to
domestic public policy (ordre public). In most of the states, such circumstance needs to be detected
by the officer ex officio (e.g. Belgium, Luxembourg).
In France, in matters concerning marriage, when foreign law appears more stringent than the French
law regarding the basic conditions of access to marriage, the registrar "can still perform the act of
marriage, whenever the applicants persist in their project and meet the conditions required for
marriage by French domestic law "125. It nevertheless be notified to the bride and the groom that
"their union may not be recognized abroad and could even be cancelled in France: indeed, the
courts, eventually seized to consider the validity of that marriage, would have to apply foreign law ex
officio and access the validity or nullity of the marriage based on this law ".126 Such provisions are
quite surprising, insofar as they allow the registrar to disregard the law designated by domestic
conflict-of-law rules law in the field of non-dispositive rights, which should normally be applied ex
officio. They are therefore a source of inconsistencies and legal uncertainty.
5.2.
Duty to apply foreign law ex officio
conflict of law rules have the same binding force for judicial and non-judicial authorities (Belgium,
Bulgaria, Czech Republic, Estonia, Hungary, Lithuania, Poland, Romania, Slovakia, Slovenia). Nonjudicial administrative authorities are thus bound to apply foreign law rules ex officio, if the domestic
conflict-of-law rule thus prescribes. It follows that foreign law shall be applied by non-judicial
administrative authorities if a conflict of law rule requires this course of action.
Not subject to ex-officio principle (Latvia). Estonian legislation expressly excludes notaries from the
general regime of ex-officio application of foreign law127. This is explained by the fact that conflict-oflaw provisions are binding upon state judicial and administrative bodies. Notaries, however, are not
considered as administrative bodies and therefore not subject to the duty to apply foreign law on the
basis of the relevant conflict-of-law rule. If foreign law must be applied or there are doubts whether
it must be applied, a notary is only obliged to inform the parties thereof and indicate such fact in the
125
126
127
IGEC, § 546.
IGEC, § 550.
Subsection 18(5) of the Notarisation Act of Estonia. Entered into force 1 February 2002, RT I 2001, 93,
564; RT I 2010, 38, 231.
42
Legal Summary
notarial deed. However, a notary has no obligation to determine or explain the content of law of a
foreign state128.
5.3.
Means of access to information on foreign law used by non-judicial
authorities
The access to information on foreign law is the same for non-judicial authorities as it is for the
judicial authorities (Bulgaria, Czech Republic, Denmark, Lithuania, Slovakia, Slovenia). In spite of this,
certain resources of foreign law remain inaccessible to non-judicial authorities. This is because the
European Convention on Information on Foreign Law129 and its Additional Protocol130 expressly
exclude such authorities from the circle of potential users (art 3, para 1 of the Convention). The
same is sometimes true for bilateral conventions regulating mutual access to information on the law
of contracting States (e.g. Bulgaria, Poland).
Aside from the European Convention, there is nothing preventing non-judicial authorities from using
the same means existing for courts. It is reported however that in practice the officials of the nonjudicial authorities may not have the relevant legal education, which may make it difficult for the
official to detect or to understand the foreign law at issue131.
The means of access to information on foreign law which is reported as most frequently used by nonjudicial authorities is that of legal databases on the Internet, although it is worth noting that these
are not always a reliable and up-to-date source of information. Notaries, if unfamiliar with the
content of foreign law, typically seek information from the Ministry of Justice of their Member State.
The Ministries of Justice may also provide non-judicial authorities with statements in cases where
doubts arise in discussions of private-law relations with an international element (Bulgaria, Czech
Republic, Slovakia, Slovenia, Poland). The European Judicial Network in civil and commercial
matters is not frequently used by non-judicial authorities as a source for determining the content of
the foreign law. It is appears from the national reports that most judicial authorities in Member
States are not aware of the EJN internet database. The same lack of awareness applies to the
mechanisms of the European Convention on Information on Foreign Law. It is also reported that, for
notaries public, the European Notarial Network functions as an important source of information132.
In Member States, where non-judicial authorities have no legal duty to refer ex officio to foreign law,
the situation is somewhat different. In the United Kingdom, Ireland, it is reported that registry
officials have no particular means of accessing foreign law or options for proceeding where foreign
law is totally inaccessible. The same may also be inferred from Maltese and Cypriot national reports.
5.4.
Remedies for incorrect application or non-application of foreign law by nonjudicial authorities
Decisions of non-judicial authorities are usually subject to appeal in case of incorrect application or
incorrect interpretation of foreign law by these authorities. Appeal can be made on common
grounds as an appeal against illegal actions or an illegal act of a given authority, or against an
128
129
130
131
132
Ibid., subsect. 4-5.
Signed in London on 7/6/1968; CETS No. 062.
Signed in Strasbourg on 15/3/1978; CETS No. 097.
E.g. refer to the present Study, Part I, “Sweden”, sec. 5.1.
Refer to the present Study, Part I, “Hungary”, sec. 5.1. in fine.
43
Legal Summary
incorrect application of law (Austria, Czech Republic, Ireland, Italy, Lithuania, Latvia, Malta, Poland,
Slovakia, Sweden, Slovenia, United Kingdom). In most countries, primary remedies are to be sought
before the superior administrative bodies supervising the activity of the concerned non-judicial
authority (Austria, Belgium, Czech Republic, Germany, Latvia, Malta, Poland, Slovakia, Slovenia).
However, the existence of such “disciplinary procedures” does not preclude a complainant from filing
an ordinary action before the court (judicial review of an administrative action).
In the Member States, whose legislation does not vest non-judicial authorities with the duty to apply
conflict of law rules and foreign law, the relevant decisions of non-judicial authorities may not be
subject to appeal in case of incorrect application or incorrect interpretation of foreign law by the
latter authorities. This is the case for notaries in Estonia. According to Estonian law, it is not possible
to contest the refusal of a notary to determine the content of foreign law and to apply it, as a notary
has no obligation to determine or explain the content of law of a foreign state. The notary is only
obliged to inform the parties of the fact that foreign law must be applied: if such obligation is
breached, a complaint can be filed with the Minister of Justice who has the power to impose a
fine133. A similar situation is observed in Austria and Germany.
Daria Solenik
Swiss Institute of Comparative Law
133
Subsection 18(5) of the Notarisation Act of Estonia.
44
Empirical Summary
SUMMARY EMPIRICAL ANALYSIS
1.
1.1.
Methodology
The Absence of Statistical Data
As far as we have been able to determine, no statistical data is collected, by national authorities
responsible for the judiciary, court administration, justice policy or statistics in general, in respect of
the number and/or percentage of civil cases requiring the application of foreign law, in respect of the
number or proportion of these cases in which the application of foreign law was refused or did not
occur for any reason, or in respect of the level of additional costs incurred by parties as a
consequence of the application of foreign law in the remaining cases. In some states, statistics are
provided as to the domicile or seat of the parties (Germany) or as to cases involving a foreign
element (Lithuania), or information is collected by the Justice Ministry (Germany), but those factors
do not allow drawing up proper statistics on the cases in which the application of foreign law is
required / was refused or on the costs of such application of foreign law.
That absence of statistical data results partly from the policy focus of civil litigation statistics. This
tends to concentrate upon indicators of the efficiency of use of resources allocated to courts (e.g.
number of procedures being initiated, proportion of pending cases being discontinued, length of
proceedings before judgment). Some attention is paid to factors of relevance to current issues of
social policy (e.g. number of divorce petitions, proportion of divorce proceedings in which child
custody is disputed, changes in the number of residential tenancy disputes resulting in eviction
orders). Except in Austria, on the other hand, no reference is made to the sources of the substantive
law applied in civil proceedings or to factors (such as the nationality or place of residence of each of
the parties) which might indicate that foreign law could be applicable. Although we have not seen
any express statement to this effect, asking litigants to provide information about such factors could
well be considered to be “too sensitive” a demand, in the light of the conception of the European
Union as a single area in which all Union Citizens enjoy the same rights and freedoms, regardless of
their nationality or origins.
The substantively juridical nature of the relevant information is a second reason for the absence of
statistical data. Court administrative staff, like statisticians, are generally not qualified to determine
whether the application of foreign law took place or was avoided in a particular case, let alone
whether foreign law should, as a matter of principle, have been applied. Such determinations would
probably have to be made by the judges hearing the cases, or perhaps by jurists trained in the field of
private international law who would review completed cases. The Austrian Federal Ministry of Justice
has informed us that (a) Austrian courts have been instructed to notify all cases in which they apply
foreign law and (b) that it is suspected that most first-instance courts do not comply with the
instruction. This supports the assumption that either approach would require the allocation of
additional and not insubstantial resources, if reliable statistics are to be obtained. Keyword searches
of electronically published judgments can produce anecdotally interesting results (like those
estimated by the Austrian Federal Ministry of Justice), but not reliable statistics.
In respect of the additional costs incurred by parties as a result of the application of foreign law,
either the parties, or costs judges (in cases where costs are disputed), or some kind of auditors would
need to spend time and effort calculating those costs. As funding does not seem to be specifically
45
Empirical Summary
provided for their production, it is inherently unlikely that statistical data will be produced in respect
of the costs of applying foreign law.
Given the fact that statistical data were not available, the empirical data were the only source for
providing information on the number and percentage of cases requiring the application of foreign
law (see table I below under 2.), on the number of cases where the application of foreign law was
refused (table II. below under 3.1.), the role of costs for the application of foreign law (table III below
under 4.1. and table IV below under 4.2.). More specifically, it was impossible to get information on
average additional costs incurred by parties as a consequence of the application of foreign law.
1.2.
Methodology and Sampling for the Empirical Analysis
The selection of respondents was carried out according to a purposive sampling, as described in the
submission documents of 10 June 2009. While aiming at assuring an equal geographical distribution
within the different member states as well as an adequate representation of the different legal
professions (judges, lawyers), the sampling process focused on respondents that have an international activity (purposive sampling method). This purposive element was given priority, though
attention was also given to geographical distribution, where possible.
The empirical study is based on 576 responses received from a variety of legal professionals in the EU
member states, i.e. in average slightly more than 21 responses per member state. The purposive
sampling method explained above was applied in all Member States. In all jurisdictions, a minimum
number of 30 respondents were approached individually in addition to institutional contacts
(lawyers’ and judges associations, professional bodies, European networks). However, the response
rate varied considerably among the different states, ranging from 7 in Belgium to 44 in the United
Kingdom. In most Member States (16), between 19 and 30 responses were received. There is no
recognizable pattern in the geographical distribution of the response rates: states with low response
rates range from the North of Europe (Finland, 13 responses) to the South (Portugal, 10 responses)
and from the West (Republic of Ireland, 14 responses; Luxemburg, 12 responses) to the East (Austria,
15 responses; Slovenia, 14 responses; Slovakia, 15 responses;). As the relatively low response rates
are evenly distributed geographically and culturally (common law, former communist law,
Scandinavian law, Germanic law, French law) and as the different types of member states as to size,
geographic location, relationship to EU, etc. are represented with at least one state with high
response rates, the differences in response rates does not put into question the validity of the
empirical study as a whole. An overall analysis as well as a comparison between the different levels
therefore seems plausible.
When looking at the different categories of respondents, the two main categories are lawyers (legal
counsels) and judges, which together constitute roughly 70% of the respondents, with a slightly
bigger share for the lawyers (almost 40%). Notaries are much less represented (15%), and that is not
only the case when analyzing the EU as a whole, but also in the Member States individually, with the
exception of France (almost 50% of responses from notaries). Thus, the fact that the function and
profile of the profession of notary varies considerably between the member states did not have an
impact on the sampling. Differences among Member States show most clearly when looking at the
categories for the remaining 10% of respondents, covering public registry officials (relatively
important part in Germany and Poland), financial institutions and others. This remaining category
thus allowed taking into account other categories of legal professions that might deal with the
application of foreign law, according to the specificity of each member state.
46
Empirical Summary
In order to ensure comparability of responses, the same questionnaire was used for all respondents.
This implied that not all questions were necessarily relevant for all types of respondents. Space was
provided to allow for individual reaction and comments in order to compensate for the lack of
specificity the uniform approach might have caused.
2.
Frequency of Resort to Foreign Law
The following analysis is based entirely on the empirical data collected through interviews as official
statistics are not provided by any member state on the frequency to resort to foreign law (see above,
1.1.). In spite of the fact that the purposive sampling method applied (1.2.) does not allow for
generalizations, it is nevertheless noteworthy to realize that the overwhelming majority of
respondents in all Member States (except for Luxembourg) are faced with issues of foreign law in less
than 25% of their daily work (see table I). Thus, applying foreign law does not seem to be the major
issue for legal professionals in general. However, the fact that in one third of the Member States
(Austria, Finland, Greece, Ireland, the Netherlands, Romania, Spain, Sweden, UK), ten to 25% of the
respondents are faced with issues of foreign law at a frequency of more than 75% of their work
shows that resorting to foreign law is a phenomenon that has to be taken seriously.
Table I: Percentages of respondents1 to the empirical survey faced with issues of foreign law
Country
less than 25%
Austria
66.7%
between 25%
and 50%
20%
(10 of 15)
Belgium
85.7%
66.7%
18.5 %
75%
69.2%
(3 of 13)
18.2%
4.5%
(4 of 22)
(1 of 22)
88%
15.4%
(4 of 13)
4%
62.1%
4%
31%
48.3%
4%
(1 of 25)
(1 of 25)
6.9%
(9 of 29)
17.2%
(14 of 29)
(2 of 13)
(1 of 25)
(18 of 29)
1
(2 of 24)
30.8%
(22 of 25)
Greece
8.3%
(1 of 24)
(2 of 22)
(7 of 13)
Germany
(2 of 27)
23.1%
9.1%
53.8%
7.4%
4.2%
(1 of 13)
(15 of 22)
(2 of 24)
(1 of 27)
(3 of 24)
7.7%
68.2%
France
3.7%
12.5%
(18 of 24)
8.3%
(4 of 24)
(5 of 27)
(9 of 13)
Finland
16.7%
(2 of 24)
(19 of 27)
Estonia
(2 of 15)
(1 of 7)
8.3%
70.4%
Czech
Republic
Denmark
100%
14.3%
(16 of 24)
Cyprus
more than
75%
13.3%
(3 of 15)
(6 of 7)
Bulgaria
between 50%
and 75%
(2 of 29)
17.2%
(5 of 29)
6.9%
(5 of 29)
10.4%
(2 of 29)
(3 of 29)
Please note that the percentage shown represents the percentage of respondents having provided an
answer for this question, which is not necessarily equal to the total number of respondents for any
given country.
47
Empirical Summary
Hungary
51.9%
33.3%
(14 of 27)
Ireland
64.4%
14.3%
(9 of 14)
Italy
68.4%
50%
Luxemburg
27.3%
Malta
Netherlands
Portugal
Slovak
Republic
Slovenia
85.8%
(2 of 14)
6.7%
(2 of 15)
6.7%
(1 of 15)
(1 of 15)
7.1%
40%
7.1%
(1 of 14)
24%
47.4%
24%
21.1%
52.4%
12%
(6 of 25)
5.3%
(4 of 19)
16.7%
(22 of 42)
(1 of 14)
(6 of 25)
(9 of 19)
United
Kingdom
14.3%
13.3%
(11 of 15)
(10 of 25)
Sweden
(1 of 8)
(2 of 14)
(12 of 14)
Spain
12.5%
14.3%
73.3%
(1 of 25)
(2 of 25)
(3 of 8)
(10 of 14)
4%
(5 of 25)
8%
37,5%
71.4%
20%
(1 of 25)
(1 of 25)
(4 of 8)
Romania
4%
4%
50%
(4 of 19)
(3 of 25)
(22 of 25)
(1 of 11)
21%
12%
88%
9%
(3 of 11)
(1 of 19)
(15 of 25)
Poland
27.3%
5.3%
60%
(1 of 25)
(6 of 28)
(4 of 11)
(14 of 19)
4%
21.4%
36.4%
73.7%
(1 of 19)
(4 of 25)
(8 of 28)
(3 of 11)
(1 of 14)
5.3%
16%
28.6%
7.1%
(1 of 14)
(2 of 19)
(2 of 25)
(14 of 28)
7.1%
10.5%
8%
(1 of 27)
(1 of 14)
(3 of 19)
(18 of 25)
Lithuania
7.1%
15.8%
72%
3.7%
(3 of 27)
(2 of 14)
(13 of 19)
Latvia
11.1%
(9 of 27)
15.7%
(1 of 19)
11.9%
(7 of 42)
(3 of 25)
10.5%
(3 of 19)
9.5%
(5 of 42)
(2 of 19)
9.5%
(4 of 42)
(4 of 42)
While the high degree of variation within the different responses exists, an overall analysis of the
areas in which foreign law is applied will probably not allow for any meaningful conclusions, it is
nevertheless interesting to point out a few issues. In general, the need to resort to foreign law arises
in the context of the general activity for the different professions, i.e. in the context of litigation and
counseling for lawyers and in the context of drafting documents for notaries. Also the subject matter
is often linked to an area of specialization. Nevertheless, it appears that areas such as family law,
inheritance law and commercial law (including contracts) were mentioned in all member states
frequently, while human rights law was mentioned to a lesser extent and criminal law only
sporadically.
An overall comparison is possible for the perception of the trend as to the necessity to apply or at
least consult foreign law. Overall, slightly more than 40% of the respondents perceive a moderate
increase in frequency of the cases that require consultation of foreign law in their daily work within
the last five years. The increase is strongest felt in Spain, Austria, Lithuania and Estonia. While the
trend of a moderate or considerable increase holds for most member states, in a considerable
48
Empirical Summary
number of countries the majority of respondents did not sense an increase of cases requiring consultation of foreign law. The stagnation is sensed in states which traditionally have an international
focus such as the UK (two thirds of the respondents not indicating an increase) as well as in some
Eastern European Member States (Slovenia, Hungary). In the Netherlands and in Portugal the
perceptions of an increase of international cases are more or less equal to perceptions according to
which no increase has taken place the last five years.
Overall, it appears that resort to foreign law plays an important role for lawyers and notaries rather
than judges, and a majority of respondents expect this importance to increase even further in the
future.
3.
Treatment of Foreign Law in Practice
3.1.
Avoidance of Foreign Law
All respondents were asked to indicate whether they sometimes avoided applying foreign law. The
question was included in the questionnaire with full awareness of the fact that this might imply
information about illegitimate practices, depending on the legal system. It therefore cannot be
excluded that not all respondents indicated what they actually do. At the same time, the question
created a possibility for respondents to indicate difficulties and concern with the application of
foreign law.
When looking at the overall responses, it is interesting to note that slightly more than 35% of the
respondents indicated that they do actually avoid the application of foreign law, a minority frequently, more than 20% overall rarely. A bit over 55% indicated not to avoid the application of
foreign law at all (almost 20% stating that this was not allowed). Overall, this is a relatively high
degree of occasional not application of foreign law.
As to the countries concerned, there is a considerable difference as to the number of respondents
that openly state avoiding the application of foreign law (see table II). In that context, Belgium,
Cyprus, Germany, Lithuania and Spain have particularly high rates of avoidance (between 55 and
60%). In the case of Spain and Cyprus, this rate is probably due to the fact that the sample contains
relatively few judges. In fact, in most countries, lawyers and notaries are more likely to report the
avoidance of foreign law than judges. This does not surprise, as lawyers generally have more liberty
in their arguments than judges do.
As to the reasons for the non-application of foreign law, the most frequent reason given was the
availability of information on foreign law in general. Very few respondents stated a difficulty in
access to information for some countries only. Other often stated reasons include the wish of the
parties as well as the fact that applying foreign law might lead to procedural delays and backlogs.
Finally, the cost factor seems to be another relatively important factor, though for several
respondents, the cost-factor is only an incentive for not applying foreign law when compared to the
value of the case. Interestingly, a considerable part of the respondents (though still a minority of
answers) indicated to actively counsel clients not to resort to foreign law. It is not clear whether that
advice was generally thought to serve the avoidance of foreign law only (and thus aimed at avoiding
legal costs) or whether there were other reasons behind.
49
Empirical Summary
Table II: Overview on tendency to avoid application of foreign law
Country
Yes
Austria
33.3%
No
66.7%
(5 of 15)
Belgium
n/a
57.1%
(10 of 15)
42.9%
(4 of 7)
Bulgaria
45.8%
(3 of 7)
54.2%
(11 of 24)
Cyprus
60.7%
(13 of 24)
39.3%
(17 of 28)
Czech
Republic
Denmark
16.7%
(11 of 28)
83.3%
(4 of 24)
40%
(20 of 24)
60%
(6 of 15)
Estonia
43.5%
(9 of 15)
43.5%
(10 of 23)
Finland
46.2%
13%
(10 of 23)
53.8%
(6 of 13)
France
28%
(7 of 13)
72%
(7 of 25)
Germany
56.7 %
(18 of 25)
43.3%
(17 of 30)
Greece
26.7%
(13 of 30)
73.3%
(8 of 30)
Hungary
37%
(22 of 30)
11.1%
51.9%
(10 of 27)
Ireland
35.7%
(3 of 27)
50%
31.6%
(7 of 14)
63.2%
(6 of 19)
Latvia
28%
8%
50%
(11 of 28)
50%
21%
(6 of 12)
79%
(4 of 19)
Netherlands
34.6%
(15 of 19)
61.5%
(9 of 26)
Poland
28%
3.9%
(16 of 26)
25%
(18 of 25)
33.3 %
41.7%
(3 of 12)
Romania
(1 of 26)
72%
(7 of 25)
Portugal
(2 of 25)
39.3%
(6 of 12)
Malta
(1 of 19)
(16 of 25)
(17 of 28)
Luxemburg
5.2%
64%
60.7%
(2 of 14)
(12 of 19)
(7 of 25)
Lithuania
(14 of 27)
14.3%
(5 of 14)
Italy
(3 of 23)
40%
(4 of 12)
53.3%
(5 of 12)
6.7%
(6 of 15)
(8 of 15)
50
(1 of 15)
Empirical Summary
Slovak
Republic
Slovenia
13.3%
86.7%
(2 of 15)
14.3%
(13 of 15)
85.7%
(2 of 14)
Spain
60%
(12 of 14)
32%
8%
(15 of 25)
Sweden
40.9%
(8 of 25)
50%
(9 of 22)
United
Kingdom
3.2.
27.3%
9.1%
(11 of 22)
68.2%
(12 of 44)
(2 of 25)
(2 of 22)
4.5%
(30 of 44)
(2 of 44)
Treatment of the Law of Other EU Member States
Interestingly, a considerable amount of respondents (almost a third) indicated to give special treatment to cases involving the law of other EU Member States.
A variety of reasons were chosen to justify special treatment of law from other Member States. The
duty of mutual recognition and cooperation resulting from the EU Treaty was the most frequently
indicated reason (58 times), followed by the easier access to legal information via the European
Judicial Network on civil and commercial matters (39 times), set up by Council Decision
2001/470/EC. Reasons of geographical and/or linguistic proximity were also mentioned relatively
frequently (33), though it seems that this applies only to some Member States. Reasons of similarity
of legal systems were specially indicated by respondents in Scandinavia as well as in Cyprus. In
addition, some respondents indicated the importance of uniform law in specific field as well as the
risk of liability. Finally, it is noteworthy that a duty to report specifically on EU cases in Poland seems
to encourage a special treatment of European cases. These reasons indicate that the special attention given to EU cases mainly (though by no means exclusively) occur in the judiciary.
4.
Access to Information on Foreign Law
The main focus of the study lies in analyzing practices as well as difficulties when ascertaining foreign
law. For this reason, the empirical data collection focused on the means of foreign law ascertainment
in general (3.1.) and the mechanisms of international cooperation in particular (3.2.). Finally,
respondents were given the opportunity to express their impressions and propositions as to reform
(3.3.).
4.1.
Means of Foreign Law Ascertainment
The means to get information on foreign law are strikingly similar in all Member States, at least “for
the public at large”. By far the most frequently quoted tool to find accurate and reliable information
about foreign law are sources available on the internet (almost 80% of the respondents). Less
important, but still widely quoted are electronic libraries (40%) and international law firms (35%).
Consular services were indicated less frequently (25%), but still more frequently than international
research institutions which seem little known to the public.
51
Empirical Summary
When asked about the practice of legal professionals, a large part of respondents did not provide
any additional or diverging information than the one provided for the public at large (especially in
Greece, Cyprus, Lithuania, Latvia, Czech Republic, Spain, the Netherlands, Portugal, Slovenia, Poland,
Slovakia, Hungary, Bulgaria), possibly indicating that the same approach is true for legal professionals. Where additional information was provided, this information is noteworthy. Lawyers from
the UK, for instance, indicated their recourse to foreign lawyers – only in Malta and Sweden, a similar
importance was given to foreign practitioners (though the practice was also mentioned by
respondents in Ireland, the Czech Republic, France, Germany and Finland). In other states, official
channels (Ministry of Justice, Ministry of foreign affairs, Migration board) have an important role to
play (several respondents in the Czech Republic and Poland, less frequently mentioned by
respondents from Austria, Sweden, Slovakia, Italy, Estonia and Finland). International research
institutions also are wider recognized in the professional community than within the public at large.
In that context, several respondents of the respective states mentioned the Hellenic Institute of
International and Foreign Law, the CRIDON in France, and the Max Planck Institutes in Germany.
Interestingly, two respondents from Malta mentioned a German institution (ERA). Also the European
networks (in particular the European Notarial Network and the European Judicial Network) were
mentioned by a few respondents (Lithuania, Austria, Czech Republic, France, Germany, Sweden,
Italy, Bulgaria, Belgium). Thus, in spite of the fact that most respondents did not provide a distinct
answer on practices of legal professionals, a noticeable part of respondents were aware of a variety
of trustworthy means available to ascertain foreign law.
The different trends are confirmed when looking at the answers of the respondents on their own
practice. The overwhelming majority (77%) uses official sources of foreign law available on the
internet regularly (“most frequently” (MF) or frequently (F) or from time to time (T), see table
below). This pattern is the same in almost all member states, with the exception of only some
countries (Sweden, France, Italy, the Netherlands) where the majority of respondents only refer to
official sources from time to time.
Frequency of ascertaining foreign law through official sources on the Internet
Série1; n/a; 37;
6%
Série1; N; 30;
5%
MF
Série1; R; 68;
12%
F
Série1; MF;
194; 34%
Série1; T; 132;
23%
T
R
N
Série1; F;
112; 20%
52
n/a
Empirical Summary
Paid foreign legal databases are used on a smaller scale, with roughly 50% of respondents indicating
that they have never used them. 15% have rarely used them, 12% from time to time, and 10 %
frequently or very frequently. Here again, the pattern is uniform in most Member States, with the
exception of some smaller states, where the use of paid foreign legal databases seems more regular,
such as in Cyprus (50% use them frequently or most frequently), Luxembourg (45%), and Portugal
(40%). The size of the legal system as well as the strong link with another legal system can explain the
need to resort to foreign law in those countries. In two medium sized states, the Czech Republic and
in Sweden, a considerable amount uses paid foreign legal databases from time to time (40% in the
former, 36% in the latter), a sign that legal professionals are more interested in / dependent on
information on foreign law, maybe as a means to complement the less developed practice in their
own state.
Patterns are less marked when talking about access to original sources of foreign law (including case
law and doctrinal writing) through libraries and national databases. This practice is used from time
to time by almost 22% of respondents, frequently by almost 20%, and most frequently by 15%, while
35% indicate to rarely or never have recourse to national libraries in order to gain access to foreign
law. Thus, the variation between the different respondents is big. This is not only the case in a
European comparison, but also within the member states. A clear trend can, however, be observed
in some states. In Germany, 55% use libraries and national databases frequently or most frequently
in order to gain access to foreign law, also in Luxembourg, the use of these means is frequent, while
in Cyprus and in the Netherland, the majority indicates to have recourse from time to time. The trend
is to the opposite in the UK, in Portugal and in Malta, where the majority of respondents rarely (UK)
or never (Portugal, Malta) uses libraries or national databases in order to have recourse to foreign
law. The positive or negative preferences are probably due to quality of databases and libraries as to
the content of foreign law in the respective countries.
The responses are more homogenous when talking about “amicus curiae”, which is a practice very
little used in all member states; 52% of respondents indicating that they have never used it and only
almost 5% say to ascertain foreign law with the help of an amicus curiae frequently or very
frequently. Interestingly, the pattern is the same in all member states.
The responses are more heterogeneous when looking at the role of foreign legal experts. Overall,
28% of respondents ask foreign experts to provide information on foreign law frequently or very
frequently, while almost 45% never or rarely does so. 20% use that means from time to time. The
frequency to ask foreign experts is higher in the UK, Greece and Cyprus, where between 40% (in the
UK) and 50% (in Cyprus, Greece: 45%) indicate having recourse to foreign experts most frequently or
frequently. In other member states, the majority of respondents (76% in Poland and Latvia, 66% in
Denmark, 50% in the Netherlands) indicate to have rarely or never used foreign experts. This
variation might be due to different procedural systems.
As to the role of official documents transmitted via diplomatic channels, only about 20% of the
respondents use them frequently (F) or most frequently (MF), 18% from time to time, and 50%
indicate to use them rarely (R) or never (N), see graph below. In Austria and Poland, the use of
diplomatic channels to get access to foreign law seems, however, more regular (frequently or very
frequently by over 50% in Austria and by 35% in Poland). Interestingly, the indications vary slightly
when respondents are asked to indicate the frequency of use of diplomatic channels in comparison
with other means of international cooperation (see below, 3.2.).
53
Empirical Summary
Frequency of ascertaining foreign law through diplomatic channels
Série1; n/a;
11.01398601;
11%
Série1; MF;
9.615384615;
10%
Série1; F;
10.83916084;
MF
11%
F
Série1; N;
25.87412587;
26%
T
Série1; T;
18.53146853;
18%
Série1; R;
24.12587413;
24%
R
N
n/a
Finally, asking foreign colleagues to transmit official documents or certificates of law seems to be
handled differently within the same states. Over 20% of the respondents indicate to never have had
that approach and almost 20% only rarely, while again 20% do so from time to time, and 35%
frequently or very frequently. When looking at different member states, there seems to be a rather
critical attitude in Poland, Latvia, the UK and Germany (80%, 60% or, in Germany and the UK, 50%
rarely or never asking foreign colleagues), while the opposite is the case in Hungary and Estonia
where 52% respectively 40% of the respondents indicate having recourse to foreign colleagues
frequently or most frequently. An explanation for these differences might lie in the different
attitudes or in procedural constraints.
In an overall comparison, official sources available on the internet are the most frequently used
means to ascertain foreign law. Over 50% of respondents use them at least frequently. The second
tool in popularity are national sources on foreign law (libraries, databases), though (due to
availability) the rates are very different between the member states. The third source on foreign law
are foreign experts (28% of respondents using them at least frequently, 45% rarely or never) or
material transmitted by foreign colleagues (25% use them frequently, 40% rarely or never).
Diplomatic channels are used frequently or very frequently by only 20% of the respondents, and 50%
never or rarely have recourse to them. Only paid foreign legal databases and the institution of
amicus curiae are used less frequently (65% respectively 68 % of respondents never or rarely using
them), the former with the exception of some countries.
The problems related to the different means are relatively uniform in the different member states.
Most respondents indicate three problems related to official sources on the internet: the lack of
quality (35%), the length of access (over 25%) and other reasons (25%, possibly related to language
and interpretation). The issue with foreign legal databases is mostly (and not surprisingly) cost (67%),
while national libraries and databases can take a long time to get the necessary information (almost
30%). In Hungary and Poland, availability was also mentioned as a major problem in that context. The
time factor also seems to be the major problem with diplomatic channels (67%), while cost is the
54
Empirical Summary
issue with foreign legal experts (57%), time being a secondary problem (almost 20%). As to foreign
colleagues, length (30%) and cost (24%) as well as other factors (20%) are perceived as difficult
issues. Finally, it seems that the rarely used amicus curiae are often not available in a country or /
and are, as foreign experts and / or colleagues, expensive and slow.
When comparing the problems and the frequency of use, it seems that availability of information on
the internet leads to it being used in spite of some doubts on the quality. Libraries have an important
role to play and are generally perceived as more reliable, though often slow and not always available.
Furthermore, the length of diplomatic proceeding is generally perceived as a bigger disadvantage
then the cost of dealing with foreign experts and / or colleagues. The cost of foreign legal databases,
on the other hand, is often deemed too big an issue to overcome (see table III).
Table III: Percentage of respondents perceiving excessive costs as a major problem with respect to
access to information on foreign law2
Country
Official
sources
available
on the
Internet
Austria
6.7%
20%
(3 of 15)
(1 of 15)
57.1%
28.6%
Belgium
Paid
foreign
legal
databases
Original
versions of
texts of
laws etc.
available in
libraries
and
databanks
of the
country in
question
(4 of 7)
Bulgaria
8.3%
(2 of 24)
Cyprus
7.1%
(2 of 28)
Czech
Republic
Denmark
70.8%
Opinions
of a
foreign
legal
expert
46.7%
26.7%
(7 of 15)
8.3%
42.9%
25%
8.3%
(2 of 24)
17.9%
(7 of 28)
(5 of 28)
37.5%
(1 of 23)
Finland
65.2%
13.3%
(2 of 15)
21.7%
(15 of 23)
4.3%
(5 of 23)
(1 of 23)
53.8%
8%
(8 of 25)
3.3%
(1 of 30)
Greece
6.7%
(2 of 30)
2
36.7%
(15 of 30)
7.1%
(18 of 28)
13.3%
(2 of 28)
(6 of 24)
25%
(7 of 28)
6.7%
(2 of 15)
(1 of 15)
39.1%
8.7%
(9 of 23)
28%
(2 of 25)
6.7%
(11 of 30)
50%
64.3%
25%
(1 of 24)
(2 of 23)
15.4%
(4 of 13)
32%
Germany
4.2%
(8 of 24)
30.8%
(7 of 13)
France
33.3%
(2 of 7)
(5 of 24)
13.3%
4.3%
28.6%
20.8%
(9 of 24)
(2 of 15)
Estonia
Official
documents
or
certificates
of law
transmitted by a
foreign
colleague
(3 of 7)
(2 of 24)
(22 of 28)
Official
documents
or
certificates
of law
transmitted
via
diplomatic
channels
(4 of 15)
(2 of 7)
(17 of 24)
78.6%
Opinions
of an
amicus
curiae
(2 of 30)
10%
10%
4%
(7 of 25)
(1 of 25)
53.3%
(3 of 30)
3.3 %
(3 of 30)
(2 of 13)
(1 of 30)
6.7%
(16 of 30)
26.7%
(8 of 30)
(2 of 30)
3.3%
20%
(1 of 30)
Please note that respondents could give more than one positive answer for this question.
55
(6 of 30)
Empirical Summary
Hungary
66.7%
11.1%
(18 of 27)
Ireland
7.4%
(3 of 27)
28.6%
(2 of 27)
7.1%
(4 of 14)
Italy
5.3%
47.4%
(1 of 19)
Latvia
8%
(1 of 14)
26.3%
(9 of 19)
(5 of 19)
32%
(2 of 25)
Lithuania
7.1%
Malta
(2 of 28)
50%
(1 of 12)
38.5%
5.3%
8.3%
30.8%
(4 of 13)
Slovak
Republic
Slovenia
7.7%
(1 of 26)
(2 of 26)
33.3%
84.6%
33.3%
38.5%
23.1%
(5 of 13)
6.7%
(5 of 15)
(3 of 13)
6.7%
(1 of 15)
(1 of 15)
50%
64.3%
(4 of 24)
7.1%
(18 of 28)
17.9%
(2 of 28)
18.2%
(8 of 44)
(1 of 12)
31.6%
(9 of 19)
(6 of 19)
46.2 %
11.5%
(12 of 26)
53.8%
(3 of 26)
4%
8%
(1 of 25)
20%
(3 of 15)
16%
(3 of 25)
9.1%
2.3%
9.1%
(2 of 22)
4.5%
(1 of 44)
(1 of 12)
30.8%
(4 of 13)
46.2%
(6 of 13)
20%
(3 of 15)
14.3%
(2 of 14)
7.1%
(1 of 14)
32%
(4 of 25)
(2 of 22)
(2 of 25)
8.3%
(7 of 13)
(4 of 14)
12%
36.4%
(5 of 28)
8.3%
47.4%
28.6%
(8 of 22)
4.2.
16%
(1 of 12)
(11 of 13)
(7 of 25)
United
Kingdom
(3 of 19)
8.3%
(4 of 12)
28%
Sweden
15.8%
(10 of 19)
(11 of 25)
(7 of 14)
Spain
52.6%
44%
(4 of 25)
(1 of 12)
Romania
3.8%
(5 of 19)
16%
(1 of 25)
Portugal
26.3%
(1 of 19)
(10 of 26)
4%
(6 of 14)
(4 of 12)
(5 of 19)
Poland
42.9%
33.3%
(6 of 12)
26.3%
Netherlands
(5 of 27)
(5 of 25)
71.4%
8.3%
18.5%
(18 of 27)
20%
(8 of 25)
(20 of 28)
Luxemburg
66.7%
(2 of 44)
(8 of 25)
36.4%
(8 of 22)
29.5%
(13 of 44)
13.6%
(3 of 22)
9.1%
(4 of 44)
Mechanisms of International Cooperation for the Purposes of Foreign Law
Ascertainment
As the information above already indicates, mechanisms of international cooperation are not very
frequently used by legal professionals. In fact, the majority of respondents indicated, in all member
states, never to have had recourse to any of the means indicated in the questions (diplomatic
channels, bilateral mechanisms of judicial cooperation, European Judicial Network in Civil and
Commercial Matters, European Convention of 7 June 1968 in the field of information on foreign law
(“London Convention”)).
56
Empirical Summary
The lack of use of the London Convention is the biggest, as almost 65% of the respondents indicate
that they have never used the mechanism it establishes (see in detail, 4.3.). For bilateral mechanisms, slightly over 45% indicate not to have used them.
The European Judicial Network has, in comparison, a wider application, as only roughly 40% of the
respondents did not have recourse to it. Interestingly, the network seems rather widely used in some
states of central and Eastern Europe (Bulgaria, Czech Republic, Greece and Hungary). Diplomatic
channels (through the Ministry of Justice or Ministry of foreign affairs) are the means which are
probably most used by respondents: while almost a third of the respondents indicate never to have
used them and 22% only rarely, slightly over 35% indicated to use them on a regular basis (very
frequently, frequently or from time to time). In some Member States, however, diplomatic channels
are more frequently used. This is particularly true for Poland (44% of respondents indicate an at least
frequent use) and for Hungary (40%), but also in the Czech Republic, Denmark, Slovakia, and Cyprus,
where respondents report regular use of diplomatic channels. While most of the answers indicate a
use “from time to time” (53% for DK; 40% SLK; 37% CZ; 35% CY), the added regular use of diplomatic
channels goes up to 70% (Czech Republic). Thus, diplomatic channels are an important tool to
ascertain foreign law in several member states and seem to be the most successful mechanism of
international cooperation, probably due to the fact that national authorities (and no international
proceedings) remain competent. The diplomatic channels are followed by the European Judicial
Network, a mechanism that might have a good chance of further development.
When asked about problems of the mechanisms of international cooperation, respondents generally
indicate length as the main issue. As already indicated above, this is the main issue for diplomatic
channels. It is less frequently brought about as a problem of the European Judicial Network, of the
London Convention or of bilateral mechanisms, but it is still the main reason indicated. Costs, as
opposed to length, were pointed out much less frequently by respondents; in many states,
respondents did not even mention costs as a problem (see table IV). Overall, respondents were
rather reluctant to point out problems of mechanisms of international cooperation; the degree of
responses was much less important than it was for the other questions. This makes it difficult to
assess the room for improvement of international mechanisms, though rendering them more public
might already lead to an increase of efficiency.
57
Empirical Summary
Table IV: Percentage of respondents perceiving excessive costs as a major problem with respect to
international cooperation mechanisms3
Country
Diplomatic Channels
Bilateral
Mechanisms of
judicial cooperation
Austria
Belgium
14.3%
14.3%
(1 of 7)
Bulgaria
8.3%
4.3%
4%
Germany
3.3%
Greece
Hungary
Ireland
-
4.2%
4.2%
(3 of 24)
4.3%
(1 of 23)
Finland
France
The European
Convention on
Information on
Foreign Law (London
Convention)
(1 of 7)
12.5%
(2 of 24)
Cyprus
Czech Rep.
Denmark
Estonia
The European
Judicial Network in
Civil and Commercial
Matters
(1 of 24)
4.3%
(1 of 23)
4%
(1 of 25)
(1 of 24)
(1 of 23)
4%
(1 of 25)
(1 of 25)
(1 of 30)
7.1%
-
-
(1 of 14)
Italy
5.3%
(1 of 19)
Latvia
4%
4%
(1 of 25)
Lithuania
3.6%
Luxemburg
Malta
Netherlands
-
(1 of 25)
(1 of 28)
3.8%
3.8%
(1 of 26)
Poland
(1 of 26)
4%
(1 of 25)
Portugal
Romania
15.4%
15.4%
(2 of 13)
15.4%
(2 of 13)
15.4%
(2 of 13)
(2 of 13)
Slovak
Republic
Slovenia
Spain
6.7%
6.7%
-
-
-
4%
Sweden
United
Kingdom
-
-
-
-
(1 of 15)
(1 of 15)
(1 of 25)
3
Please note that respondents could give more than one positive answer for this question.
58
Empirical Summary
4.3.
The Shortcomings of the London Convention in Particular
The vast majority of practitioners in the 27 Member States indicate not to resort to the mechanism
established by the European Convention of 7 June 1968 in the field of information on foreign law
(London Convention). Only (but still), 8 % of the respondents have resort to the Convention between
from time to time to most frequently; the percentage is slightly higher (between 10 and 15%) in
Austria, Bulgaria, Cyprus, Denmark, Lithuania and Slovenia, and considerably higher (between 20 and
25%) in Spain, Romania, Slovakia, and the Czech Republic, while over 40% of the respondents from
Luxembourg seem to use the convention at least from time to time. However, the fact that 21% of
the Irish respondents indicate to use the Convention is surprising, to say the least, as Ireland has not
ratified the Convention.
The reasons for not using the convention (a part from it not being ratified) are threefold, according
to the respondents: first, there seems to be a lack of awareness of the Convention. Respondents in
Bulgaria, Greece, Malta, and the Netherlands indicated awareness to be a problem, and the silence
of many respondents on the Convention could also indicated that the mechanism is simply not
known. Second, the length of the mechanism established by the London Convention seems to be a
problem according to respondents in most member states (except for France, Ireland, Italy, Malta,
and Portugal, where no respondents mentioned that reason): 37% of the respondents indicating a
reason for the problems related to the Convention indicated the length to be the main issue, no
other reason was mentioned with a similar or higher frequency. Finally, several respondents
indicated reasons relating to the substance of the London Convention as reasons for it not being
applied. 16% of the respondents indicating a specific problem saw the unavailability of the
Convention for their profession as a problem. This confirms what was already mentioned in the legal
study (see 2.3. General Summary): the fact that the London Convention only provides a tool for the
judge is a problem. Finally, according to a few German respondents, the fact that the Convention
allows only submitting abstract questions was perceived as problematic.
Doctrinal writing and secondary sources on the London Convention bring about similar problems as
the ones mentioned in the empirical analysis, though with some variations especially regarding the
actual functioning. First, several authors confirm, sometimes with the help of ad hoc established
empirical data on the number of requests, that the Convention is relatively rarely used4 (e.g. roughly
30 requests between 1999 and 2000 by German courts5, compared to roughly 30 annual requests in
1982 and 19836; in 1993 to 1995, less than 10 annual requests transmitted in Austria, Cyprus, France,
Hungary, Italy (22 in 9 years), the Netherlands, Sweden, the United Kingdom, and considerably more
in Greece and Spain7). Second, authors do not share the same opinion as regards the duration of
obtaining information according to the Convention: while some authors regret the length and costs
(without giving any examples)8, others state that information is generally provided fast9 and in a cost-
4
5
6
7
8
F. Melin, La convention européenne dans le domaine de l’information sur le droit étranger: constat
d’un échec, Petites affices 1999 / 192, p. 9 ; JurisClasseur Civil Code, Art. 3, Fascicule 62, 1 mars 2011.
S. Jastrow, Zur Ermittlung ausländischen Rechts: Was leistet das Londoner Auskunftsübereinkommen
in der Praxis, IPrax 2004, p. 402 seq., p. 403.
G. Otto, Die gerichtliche Praxis und ihre Erfahrungen mit dem Europäischen Übereinkommen vom 7. 6.
1968 betr. Auskünfte über ausländisches Recht in D. Heinrich & B. von Hoffmann (ed.), Festschrift für
Karl Firsching zum 70. Geburtstag, Munich 1985, p. 209 seq, p. 223.
J. Van Doorn & B. J. Rodger, Proof of foreign law: the impact of the London Convention, ICLQ 1997
(46), 151 seq,, p. 167.
Van Doorn & Rodger, op. cit., p. 165;
59
Empirical Summary
efficient manner10. According to a best practice survey conducted by the European Committee on
Legal Cooperation (CDJC) and covering the UK, Germany and Slovakia, it takes around six to eight
weeks in average for the information to be provided11. Compared to expert opinions, there is
probably no substantial difference, and depending on the circumstances, the duration can be
regarded as quick or long. A third problem raised by several authors is language and the complexities
of translation.12 This can lead to increased costs, in the best case, or to difficulties in understanding
and / or formulating requests, and therefore be a de facto discouraging factor. Finally, mainly
German doctrinal writing considers the fact that abstract questions have to be submitted, and
information is given without knowledge of the details of the specific case or without knowledge of
the German legal system as a disadvantage, mainly when compared to Expert opinions established
by German institutions.13
Overall, it seems reasonable to conclude that the London Convention is a mechanism used relatively
rarely when needing to ascertain foreign law, though several authors and respondents indicate that
it plays an important role in that process. The main reason for this might lie in the fact that judges
and parties are too often not aware of the mechanisms. In addition, doubts (though they do not
necessarily correspond to reality) on the duration and the costs might prevent judges and parties to
request the application of the duration. All these factors might be addressed with more transparency
and publicity for the Convention. Other factors such as language and accessibility lie in the
Convention itself and should be taken into account when reforming the Convention or when
proposing alternate measures.
4.4.
The Need in Improvement of System of Access to Information on Foreign Law
The majority of respondents (almost 60%) sense a need to improve the access to foreign law. About
35%, and in several countries (Czech Republic, Finland, Ireland, Malta, the Netherlands, Slovakia,
Slovenia, the UK) at least half of the respondents do not consider a reform necessary. Within the big
variety of proposals put forward by different respondents, it is possible to identify four core areas.
The first one is electronic access to foreign law, the second one are institutional mechanisms, the
third one training on foreign law, and the fourth one strengthening and creation of networks.
9
10
11
12
13
Melin, op. cit.; Jastrow, op. cit., p. 403, who indicates an average treatment time-span of two to four
months; according to Otto, op. cit., p. 223, the average time-span amounts to two months.
Jastrow, op. cit., p. 403; see also CDJC, Best Practices Survey of the European Convention on
Information on Foreign Law (ETS No. 62, London, 7 June 1968), document prepared by E. Desch,
available at
http://www.coe.int/t/dghl/standardsetting/cdcj/2002/cdcj15%20e%202002.pdf (05.07.2011), p. 8.
CDJC, Best Practices Survey of the European Convention on Information on Foreign Law (ETS No. 62,
London, 7 June 1968), document prepared by E. Desch, available at
http://www.coe.int/t/dghl/standardsetting/cdcj/2002/cdcj15%20e%202002.pdf (05.07.2011), p. 7.
G. Otto, Die gerichtliche Praxis und ihre Erfahrungen mit dem Europäischen Übereinkommen vom 7. 6.
1968 betr. Auskünfte über ausländisches Recht in D. Heinrich & B. von Hoffmann (ed.), Festschrift für
Karl Firsching zum 70. Geburtstag, Munich 1985, p. 209 seq, 224; J. Van Doorn & B. J. Rodger, Proof of
foreign law: the impact oft he London Convention, ICLQ 1997 (46), 151 seq, p. 166; S. Jastrow, Zur
Ermittlung ausländischen Rechts: Was leistet das Londoner Auskunftsübereinkommen in der Praxis,
IPrax 2004, 402 seq., p. 405.
Otto, op. cit., p. 217, with references ; R. Hüsstege, Zur Ermittlung ausländischen Rechts: Wie man in
den Wald hineinruft, so hallt es auch zurück, IPRax2002, 292 seq.
60
Empirical Summary
As to electronic access to foreign law, a large number of respondents proposed the creation of a
generally accessible database on foreign law, with information in English or translated in all
languages. Ideally, such a database should also contain references to case law. In fact, language was
an important aspect mentioned in the context of the creation of a database. Within the same line of
thought, others proposed simply the creation of an overview with links to official websites or
increased awareness about the existing possibilities.
The propositions for institutional mechanisms ranged from making authorities (especially the
ministry of justice or foreign affairs) more responsive or more open to requests from individuals to
the creation of an independent institution giving information on foreign law. Ideally, these measures
were thought to be free of costs.
Several respondents did not go so far as to require the creation of new institutions, but limited themselves to the idea of networks. Several respondents mentioned the need to improve the existing
network (judicial and notaries) and make them better known among the legal professions; others
proposed the existing networks become more active. Other respondents again proposed to create a
network of independent experts on foreign law or just expressed the wish to have better links with
their foreign colleagues.
The last proposal that was mentioned by several respondent concerns education and training on
foreign law. While some respondents stressed the need to open up legal education in general in
order to include foreign law, others just pointed towards the need for training of lawyers and judges
active in international cases.
Overall, it seems that many valuable proposals were made. However, it also needs to be borne in
mind, as some respondents pointed out, that it will always remain difficult for lawyers to apply
foreign law. Therefore, expert opinions will probably keep an important place in the future. This fact
should however not prevent implementing measures on the European level that will make access to
foreign law easier.
In view of the indicated habits and the recognized problems with the different means, it is possible to
recommend the following actions in order to render access to foreign law easier: as a first step, it
would appear reasonable to improve the quality of official information on the internet and to
improve systems of national legal information with information on foreign law (libraries, databases).
In a second step, this could be combined to a European database with relevant information
(legislation and case-law) on all legal systems. This appears to be a huge, daunting task, but it would
reduce costs and facilitate access to foreign law by means that are already widely used today. It
might also be possible to develop institutions along these lines. In addition, the strengthening and
extension of existing networks for judges, notaries and lawyers is a very valuable enterprise that
should be continued. Thereby, sensibility for the application of foreign law will equally rise. On a
longer term, internationalizing legal education would without doubt also lead to increased
awareness of foreign law. In brief, it seems that all axes proposed by the respondents give room for
valuable and important further measures.
Lukas Heckendorn Urscheler
Swiss Institute of Comparative Law
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Recommendations
RECOMMENDATIONS
The purpose of this Part IV is to formulate recommendations as to the feasibility of a potential legal
instrument governing the nature and implementation of conflict of laws rules in the European Union
and of the foreign laws that those rules designate. In particular, it addresses whether the European
Union(hereinafter referred to as “EU”) as it currently functions under the TFUE treaty is competent
to intervene in that domain and, if so, the breadth and depth of any such intervention.
We must first examine the limits of the EU’s power to be proactive in this way (1). Next, we must
study successively the five domains that provide the framework for interaction of the various
national legal systems with each other: the binding EU conflict of laws rules (sometimes referred to
as “the procedural application of the conflict rule”) whereby a foreign law gets introduced into a
proceeding (2); the determination of the content of the foreign law in question (3); the
consequences of an inability to make that determination (4); and the review by higher courts of
applications of foreign law (5). Points 3 to 5 form the core of what we often call “the procedural
treatment of foreign law”. The recommendations set forth herein for establishing the substance of a
foreign law (3) take into account the findings of the empirical analysis.
Each section concludes with a draft proposal of legislative text, which, in light of the complexity of
the subject and the dearth of relevant scholarship in Europe until now, aims to furnish only a basis
for discussion. Certain alternative options which could be considered by the European legislature and
the respective merits of which were previously discussed in the body of the text, appear in brackets
and italics after the principal proposal.
1.
Scope
It is most often the judicial authorities of a Member State – “Member State of the judge seized” or
“Forum State” – who must take into consideration foreign law through the application of provisions
generally known as “provisions concerning applicable law” or “conflict of law rules.” We will first
examine the four main options open to the legislator (1.1), of which we will immediately exclude two
(1.2) and indicate our preference for the third option but not without conceding several points in
favour of the fourth option (1.3)
1.1.
Four Options
The conflict of law rule can be based on EU or non-EU law (national law or an international
convention). There are currently seven EU instruments containing provisions on applicable law,
which we will refer to as “EU conflict of law rules.” The instruments in question are:
-
Four Regulations currently in force (as of 15 May 2011): Regulation 1346/2000 of 29 May
2000 on insolvency proceedings1; Regulation 593/2008 on the law applicable to contractual
obligations (the “Rome I Regulation”)2; Regulation 864/2007 on the law applicable to non-
1
Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the
law applicable to contractual obligations.
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Recommendations
contractual obligations (the “Rome II Regulation”)3; Regulation 4/2009 on the law applicable
to maintenance obligations (the “Maintenance Regulation”)4, which, on the question of
applicable law, refers back to the Protocol on the law applicable to maintenance obligations
which was signed on 23 November 20075 in the framework of the Hague Conference on
Private International Law and has not yet come into force .
-
One regulation which has been adopted but not yet entered into force (it should become
effective on 1 July 2012): Regulation n° 1259/2010 on the law applicable to divorce and
judicial separation (the “Rome III Regulation”)6;
-
Three proposals for additional regulations: Proposed Regulation on jurisdiction, applicable
law and recognition and enforcement in the field of successions (hereinafter referred to as
the “Proposed Succession Regulation”)7; Proposed Regulation on jurisdiction, applicable law
and recognition and enforcement in the field of matrimonial property (the “Proposed
Matrimonial Property Regulation”)8; Proposed Regulation on jurisdiction, applicable law and
recognition and enforcement in the field of property of registered partners (the “Proposed
Registered Partners’ Property Regulation”)9
EU conflict rules may designate the law of a Member State or a non-member State (third party
State): this is the principle of their universal or erga omnes application that one finds in all of the
eight instruments cited above.
Depending on the two factors discussed – EU or non-EU source of the relevant conflict law, on the
one hand, and whether the designated law is that of a Member State or a non-member State, on the
other hand – the European legislator has four options concerning the scope of any instrument
contemplated in this domain. Indeed, such an instrument could apply:
3
4
5
6
7
8
9
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law
applicable to non-contractual obligations.
Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition
and enforcement of decisions and cooperation in matters relating to maintenance obligations.
Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, Convention No. 39
of the Hague Conference on Private International Law.
Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in
the area of the law applicable to divorce and legal separation.
Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable
law, recognition and enforcement of decisions and authentic instruments in matters of succession and
the creation of a European Certificate of Succession, COM(2009) 154.
Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement
of decisions in matters of matrimonial property regimes, {COM(2011) 125}, {COM(2011) 127,}
{SEC(2011) 327}, {SEC(2011) 328}.
Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement
of decisions on the property consequences of registered partnerships, {COM(2011) 125}, {COM(2011),
126}, {SEC(2011) 327}, {SEC(2011) 328}.
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-
to all conflict rules, whether of EU or non-EU origin, which are in effect in the Member State
forum, regardless of whether the designated law is that of a Member State or an nonmember State (“first option”);
-
to all conflict rules, whether of EU or non-EU origin, which are in effect in the Member State
forum, but only when the designated law is that of a Member State (second option”);
-
only to EU conflict rules that are in effect in the Member State Forum regardless of whether
they designate the law of a Member State or a non-member State (“third option”);
-
only to EU conflict rules that are in effect in the Member State Forum and only where the law
designated is that of a Member State (“fourth option”).
1.2.
Exclusion of the First and Second Options
The European Union appears not to have the competence necessary for either the first or the
second option. Indeed, it would appear that a uniform EU treatment of conflict rules and rules
governing applicable law is justifiable only with respect to rules which are themselves EU rules and,
for that reason, uniform.
The arguments likely to be advanced in support of European Union intervention – the EU law
principles of “effet utile”, foreseeability and legal certainty that underlie EU conflict rules, the
principle of protection of vested legal rights under EU law and protection of vested legal rights
under internal law, an effective internal market and the creation of an area of liberty, security and
justice --presuppose specifically the context of EU law, in this case, EU conflict of law rules, and that
it is precisely such rules and the applicable law such rules designate – which rules and laws are
already applicable as a matter of principle in all the Member States -- that must be executed. This is
illustrated by Hypothetical n°1 below:
Hypothetical n° 1. Two German citizens domiciled in England were married in London and settled in
Italy several months after their marriage without losing their United Kingdom domicile as that term is
defined under English law. The wife wishes to obtain an annulment of the marriage to her husband.
She hesitates between an English forum and an Italian forum. In the absence of EU conflict rules on the
subject, in the present case, the annulment of the marriage in Italy is governed by German law and in
the U.K, by English law.
-
First, this hypothetical does not concern a legal situation created or sanctioned by an EU
conflict rule. As a result, the principal of equal protection of vested legal rights by EU law and
internal law may not be invoked;
-
Secondly, the imposition, by an EU instrument, of uniformity upon the Italian and English
national conflict rules concerning applicable law would not result in increased foreseeability
and legal certainty for the couple concerned; the applicable law, in any event, is not the
same in the two countries.
-
Consequently, an EU initiative concerning uniform treatment of a conflict rule which itself is
not uniform – and concerning the uniform treatment of applicable law that can differ from
one country to another – will not result in a reduction in forum shopping (the grounds for
annulment being potentially different depending on the forum seized).
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-
Finally, for the same reasons, it is difficult to see how such an initiative could be justified
based on the goal of an effective internal market and the creation of an area of liberty,
justice and security.
It appears, then, that the scope of any potential European Union initiative should be limited to EU
conflict rules and the law that they designate. The displacement of national conflict rules reflects the
approach adopted by the Council Decision of 28 May 2001 (modified by decision of 18 June 2009 by
the European Parliament and the Council)10. The role of the European Judicial Network regarding
cooperation in the establishment of foreign law – to be discussed later on11 – takes effect only when
the foreign law is “applicable in a Member State] by virtue of an EU act or of an international
instrument”12.
When it comes to a conflict rule found in an “international instrument” that binds some but not all
Member States, it seems preferable to leave it up to the Member States’ discretion whether to apply
the EU instrument. We could even go so far as to invoke applicable law provisions found in
international legal instruments where they overlap with EU regulations that expressly reserve their
own application13.
1.3.
Choice Between the Third and the Fourth Options
With respect to the choice between the third option that targets EU conflict rules independently of
whether the law they designate is, or is not, that of a Member State, and the fourth option that
ultimately limits the scope of the proposed instrument to those EU conflict rules that designate the
law of a Member State, we must distinguish between the treatment of a conflict rule and the
treatment of the law such rule designates as applicable.
-
With respect to the treatment of the conflict rule, in order to reflect and respect the principle
of universal application, the instrument in question must also apply universally, i.e.
regardless of whether the state whose law is designated is a Member State. Even if the
instrument were to apply only to EU conflict rules, it must apply to all EU conflict rules and,
more specifically to all cases to which they apply. It is therefore the third option that we
must choose.
-
With respect to the treatment of the law designated by the EU conflict rule, it would appear
that the relevant principle should also be that of application of the instrument regardless of
whether the law designated is that of a Member State. In choosing the third option, we
should nonetheless make important concessions to the fourth option in the event that the
common provisions envisioned are based on the existence of EU judicial cooperation
mechanisms (such as the “European Judicial Network”) or contemplate the creation of other
mechanisms which would apply only among Member States. This is particularly the case for
research methods which might be used and efforts likely to be made in order to establish the
content of the designated law, some of which are only applicable with respect to Member
State laws.
10
Council Decision 2001/470/EC of 28 May 2001, establishing a European Judicial Network in civil and
commercial matters.
Refer below, to point 3.2.1.3.b. of these Recommendations.
Art. 5 par. 2 lit. c of Decision 2001/470/CE ; compare Art. 2 par. 2 lit. b.
Refer for example to Art. 28 of the Rome II Regulation.
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11
12
13
Recommendations
This corresponds to the relevant competencies assigned to the European Judicial Network: it is only
when the applicable law is that of a Member State that the forum State can consult the Network in
order to obtain the information it needs14.
Even if we were to exclude non-EU conflict rules and the law that such rules designate, even where
the designated law is that of a Member State, the scope of the instrument proposed remains
important and is certainly destined to be expanded.
-
On the one hand, those areas that are currently subject to EU conflict rules already affect a
considerable part of people’s legal lives; these areas concern at once a person’s finances
(contractual and non-contractual obligations, support obligations) as well as non-financial
aspects of their lives (divorce and separation); in particular, they concern equally areas in
which Member States’ legal systems allow a large degree of party autonomy (contractual
obligations); those in which the degree of party autonomy allowed varies from one Member
State to another or depending on the relevant point in time (support obligations, contracts
with a “weak” party/adhesion contracts, successions), and those for which there is little or no
party autonomy (divorce and separation).
-
On the other hand, it is clear that any principle proposed is likely to apply to EU conflict rules
that may be adopted in the future in other areas and to the foreign law that they designate
(although we cannot exclude the possibility of adopting some adjustments necessitated by
the specificities of new areas). It is equally clear that these principles may be extended by
Member States to national conflict rules.
Article 1 – Scope
1. This instrument applies to the treatment of provisions concerning applicable law included in the
Regulations as well as in the other EU instruments, hereafter referred to as “EU conflict rules,” and
to the treatment of the law that these instruments designate as the applicable law when such law is
foreign to the judge of the Member State who is seized of the matter.
2. This instrument is not intended to affect the treatment of provisions concerning applicable law of
national law or as agreed to by the relevant parties or those of the law that is designated as the
applicable law. [Il s’applique toutefois aux dispositions sur la loi applicable contenues dans des
instruments internationaux qui concernent des matières réglées par des règlements
communautaires et dont l’application est réservée par ceux-ci].
3.
2.
Unless otherwise provided, this instrument applies even where the EU conflict rule designates as
applicable the law of a third party State.
Binding Power of the EU Conflict-of-Law Rules
It is apparent from the General Summary of Part I of the present study that foreign law can be
introduced into litigation by different means. First, it is possible to place the onus of invoking the
application of foreign law exclusively upon the interested party. Secondly, it is possible to oblige the
judge to determine ex officio the question of the applicability of foreign law and then to actually
apply it, again ex officio, even when that contradicts an agreement reached between the parties for
the purpose of ensuring application of the law of the forum. Thirdly and by way of compromise, one
could oblige the judge to determine ex officio the question of the applicability of foreign law, which is
14
Refer also to Art. 2 par. 2 lit. b and Art. 5 par. 2 lit. c of Decision 2001/470/CE.
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to say that he must draw the applicability of a foreign law to the attention of the parties, while
leaving the parties the option of agreeing upon its exclusion in favour of the law of the forum. Each
of these solutions will subsequently lead to its own problems. However, when choosing the best
approach for the purposes of EU conflict rules, we recognize that the very nature of those rules
makes the problem somewhat less acute.
In fact, most EU conflict of law rules permit parties to reach enforceable agreements in the form of
choice of applicable law (2.1.). This renders the entire corpus of the EU conflict-of law rules
facultative in nature, that is, utterly dependent on the wishes of the parties with regard to the
applicable law. This circumstance orients the scope of our analysis to question of the role of the
parties in the process of application of foreign law. This raises the questions of whether such
agreements are also possible after the institution of proceedings and of the forms which such
agreements may take, which leads in turn to the question of the significance to be attributed to
silence on the point. In rare situations where the EU conflict rule does not expressly give to the
parties a choice of applicable law, the question of its applicability remains pertinent (2.2).
2.1.
Choice of the Law of the Forum
The EU rules of conflict largely give parties the freedom to designate the applicable law (2.1.1). If
such a designation is quasi-systematically likely to turn on the law of the forum (2.1.2), then the
ability of the parties to designate a law during the proceedings remains deliberately unregulated by
EU law, with the exception of the Alimony and Maintenance Obligations Regulation, which expressly
allows it (2.1.3). It is advisable to consider extending this solution to other pertinent EU regulations
and/or to codify the power to designate the law of the forum during the course of legal proceedings
(2.1.4.).
2.2.1. Party freedom to designate the law applicable in general
One of the peculiar characteristics of EU conflict of law rules is the wide room which they leave for
party autonomy. The parties are logically accorded the right to designate the applicable law on
subjects the material regulation of which is generally, or at least to a significant degree, left to the
free will of the parties. These subjects include both contractual and non-contractual obligations. The
right is however, also accorded in respect of matters, such as successions and matrimonial property,
for which the power of parties to themselves determine, at the « material » level, the nature of their
legal relations is generally subjected to important limits and even in respect of matters such as
divorce or judicial separation, for which that power is practically nil. The Rome III Regulation is emblematic in this respect; the subject with which it deals is of a non-property nature and is not open
to party choice under the legal systems of all the Member States which have opted in. Unlike certain
non-European legal systems, notably those influenced by Islamic law, these uniformly prohibit
spouses, from the moment at which they marry and until that at which they divorce or obtain a
judicial separation, from effectively abandoning, modifying or adding to the grounds for divorce or
separation. The power to choose the applicable law is nevertheless given to spouses by the
Regulation.
However, there are two exceptions to the broad autonomy enjoyed by parties thanks to the EU rules
of conflict.
-
The Registered Partnerships Proposition does not allow partners to designate the applicable
law. However, it is for now uncertain whether that exclusion will exist in the finally adopted
version of the legislation.
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-
If the Successions Proposal grants such a freedom, it would be available only to the
decedent. The question remains whether the parties disputing over the distribution of an
estate (especially the alleged heirs, successors or other stakeholders) can agree upon an
applicable law other than what would usually apply, such as the law of the forum.
Despite these exceptions, the freedom of parties to choose their applicable law still finds very broad
support in the EU conflict rules. Therefore, it is only natural to wonder to what extent that freedom
can lead to the designation of the law of the forum.
2.1.2. Party freedom to designate the law of the forum in particular
There remains the question of whether, under the EU conflict of law rules which permit party
autonomy, the law of the forum systematically appears within the circle of “eligible” laws. The response is affirmative concerning the EU conflict of law rules which the Rome I and Rome II
Regulations lay down in respect of contractual and non-contractual obligations: these conflict rules
effectively permit a choice of any law, including that of the forum, whatever may be the connecting
factor tying the case to the forum. The Rome III Regulation and the Maintenance Regulation
systematically allow a choice of the law of the forum, subject to certain remarks which will be made
below. The Proposed Matrimonial Property Regulation does not list the law of the forum among the
eligible laws, but the combination of the EU conflict of law rules and the relevant EU jurisdiction rules
inevitably leads to that result; the jurisdiction of the forum can only be founded upon the habitual
residence or the nationality of at least one of the spouses, which is to say in the courts of a State the
law of which may be chosen by the spouses at any time after the celebration of their marriage.
If the law of the forum practically always finds its way into the category of laws declared eligible by
the EU conflict rules, then we must establish whether its designation can occur after the
commencement of litigious proceedings.
2.1.3. Possibility of Choice after Proceedings Have Been Instituted: absence of EU rules
This issue can be divided into two subsidiary inquiries: 1) whether the EU conflict of laws rules deal
with the litigants’ choice of law made during the conduct of proceedings, and 2) if not, how to deal
with such a choice. The Rome I and Rome II Regulations and the Matrimonial Regimes Proposal do
not address this issue, as do the Divorce and Separation Regulation and the Alimony and
Maintenance Obligations Regulation. It is important to examine the reasons of the silence of EU texts
on this topic.
2.1.3.1. An issue not dealt with by the Rome I and II Regulations, or the Matrimonial
Regimes Proposal
These three instruments expressly state that party designations of applicable law can occur or be
modified at any time – or after the dispute arises, under Rome II. Thus, there is no doubt that the
choice of law can be made up until the moment immediately preceding the commencement of trial.
Whether the instruments in question also intend to regulate – and to authorise – party choice of law
after the commencement of proceedings remains, under Rome I and Rome II, an unanswered
question, as confirmed with regard to contractual obligations by the Giuliano-Lagarde Report on the
Rome Convention of 1980. The Matrimonial Regimes Proposition does not take a stance on this
question.
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2.1.3.2.
An issue envisaged by the Divorce and Separation Regulation and the Maintenance
Regulation
On the contrary, a choice during proceedings is expressly envisaged by two other instruments: (a)
the Rome III Regulation and (b) the Maintenance Regulation which “communitarised” the Protocol
du 23 November 2007 on the law applicable to maintenance obligations.
a)
Divorce and Separation Regulation
The Rome III Regulation (Art. 5 pars. 2 and 3) permits a choice until the moment at which a particular
court is actually seized of jurisdiction, after which a choice is possible in the form (if any) foreseen by
the law of the forum:
“2.[...A]n agreement designating the applicable law may be concluded and modified at any
time, but at the latest at the time the court is seized.
3. If the law of the forum so provides, the spouses may also designate the law applicable
before the court during the course of the proceeding. In that event, such designation shall be
recorded in court in accordance with the law of the forum”.
b)
Maintenance Obligations Regulation
The Protocol of 23 November 2007 on the law applicable to maintenance obligations, to which the
Maintenance Obligations Regulation refers, adopts elaborate and very interesting solutions
concerning party freedom to designate the applicable law. Notably, it distinguishes between the
applicable law designated at any moment and independently of a proceeding (Art. 8) and the
applicable law designated “for the purpose of a particular proceeding” (Art. 7).
Article 8 grants parties the freedom to designate the applicable law within a limited spectrum of laws
having strong ties to one or both parties. That freedom, however, is accompanied by important
limitations. Article 7 allows litigants to designate the law of the State in which the proceedings take
place. The text provides:
“1) [...] The maintenance creditor and debtor for the purpose only of a particular proceeding
in a given State may expressly designate the law of that State as applicable to a maintenance
obligation.
(2) A designation made before the institution of such proceedings shall be in an agreement,
signed by both parties, in writing or recorded in any medium, the information contained in
which is accessible so as to be usable for subsequent reference.”
This provision accepts the parties’ freedom to designate the law of the forum, no matter what ties
exist between the case and the forum: that principle forms the basis of the procedural agreement.
We note the possibility that the forum state could face a situation, especially with respect to the
parties, where none of the Protocol article 8 connecting factors are sufficiently strong. As for the
manner of the designation, Article 7 distinguishes two situations according to whether the
agreement is concluded before or after the commencement of proceedings:
-
if it is concluded prior to the proceedings, it must take the form prescribed by Article 7, that
is, result from a mutual “agreement signed by both parties, in writing or recorded in any
medium, the information contained in which is accessible so as to be usable for subsequent
reference.”
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-
if it is concluded after the commencement of proceedings, it seems that the form of that
agreement, much like in the case of a divorce or separation, is governed by the law of the
forum. The regulation stipulates, however, that it must consist of an “express designation”.
The report established by Professor Andrea Bonomi agrees with this idea.
2.1.3.3. Hesitations regarding the designation of applicable law during the conduct of proceedings
In their current state, the EU texts are rather reserved when it comes to the choice of applicable law,
and especially the law of the forum, when made by the litigants during the proceedings. The reason
is that this question falls within the domain of civil procedure, which remains under the exclusive
control of the Member States. That is why, for example, the Divorce and Separation Regulation
foresees the problem but refers to the law of the seized Member State for its resolution. It is no
accident that the most courageous legal instrument to broach this subject, the Hague Protocol, is the
only one to have been elaborated outside the framework of the European Union, even if in close
collaboration with the latter. That text requires its signatory States to recognise law-of-the-forum
agreements concluded “for the needs of a particular proceeding”, even if concluded during the
conduct of proceedings, whatever the invariably express form of that agreement.
Having charted a path regarding alimony and maintenance obligations, one wonders whether we
might pursue that same path on other matters ripe for an EU action in the conflict of laws debate.
2.1.4. Feasibility of an EU regulation on designations made during the conduct of
proceedings
When a conflict of law rule permits party designation of the law of the State of the judge seized, the
fact that the designation is made during the course of legal proceedings does not appear to arouse
serious concern (2.1.4.1). Therefore, the European Union‘s power to adopt a uniform rule expressly
codifying that principle becomes even less problematic (2.1.4.2.). More delicate is the task of
establishing a legal regime for such a principle (2.1.4.3.).
2.1.4.1. Consensus favouring the admissibility of designations made during the course of proceedings
Where the conflict rule permits a choice of law, including the law of the forum, that can be exercised
at any time, the we see a broad consensus among scholars and judges of Member States favouring
the admissibility of law-of-the-forum designations made subsequent to the commencement of legal
proceedings. Furthermore, it is hard to see why parties should be prevented from concluding an
agreement during the proceedings if they would have been allowed to do so beforehand. The
majority of the arguments raised in support of party autonomy over the conflict rule—legal certainty
flowing from foreseeability, the law best understood by the parties or better suited to their interests,
and minimizing conflict—lean in favour of extending that freedom of designation even after the
commencement of proceedings. Still other arguments—such as reduced expenses, time, and risk of
judicial error—arise when the choice of law includes the law of the judge seized.
2.1.4.2. Legitimacy of an EU regulation
In support of a European Union initiative in this regard, one can argue that it does nothing more than
fill the gaps that were left, more or less deliberately, by a number of other EU instruments, and that
it brings greater precision to the choice of law regime already established by them. One could argue
that if the European Union is competent to adopt the freedom of choice of law, and that this
freedom can be invoked at any time, then the Union is likewise competent to permit the choice of
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law even after the commencement of proceedings. One can also draw support from the fact that at
least one regulatory text – the Maintenance Obligations Regulation – already takes a step in that
direction. If the EU has the power to grant admissibility of the parties’ preference for the law of the
forum during the conduct of proceedings in the area of maintenance obligations, one can assume
that it has that same power in other areas where it has issued conflicts rules.
Is there a risk of encroachment upon civil procedure? If so, this would not be a new phenomenon.
Aside from the Maintenance Obligations Regulation, such an encroachment occurs in the Brussels
Regulations I and II, and II-bis: these texts allow for the choice of forum during the proceedings,
deducible from the seizure of the forum by the plaintiff and the tacit acceptance of the seized judge’s
competence by the defendant. Admittedly, that scenario concerns rules of jurisdictional competence
whereas our concern is the conflict rules. But the attendant invasion of the realm of procedural
freedom does not appear to be substantially different.
2.1.4.3. Substance of an EU norm
An acceptance of the freedom of choice over the law of the forum during the conduct of proceedings
requires looking into the manner of making that choice (a), the role of the judge in that event (b),
and the weight to be given to that choice (c).
a)
The manner of invoking a choice of law
EU instruments contain provisions governing the form that a choice of law must take if made prior to
the commencement of proceedings (1). Drawing inspiration from those provisions, one finds support
for the freedom to make such an express choice even amidst legal proceedings (2). Nevertheless,
some uncertainty remains as to whether an express choice of law designation should be required in
all cases (3).
1° Provisions on the manner of designating a governing law prior to commencement of proceedings
-
Aside from an express choice, the Rome Regulations I and II allow for a tacit choice of law:
they require that the designation be “made expressly or clearly demonstrated by the terms
of the contract or the circumstances of the case”. The Rome II Regulation recognises a choice
that is “expressed or demonstrated with reasonable certainty by the circumstances of the
case and shall not prejudice the rights of third parties”.
-
As for the Matrimonial Regimes Proposition, the Divorce and Separation Regulation, and the
three other Regulations, the choice of law designation must be express, reduced to writing,
dated, and signed by the parties.
-
Under the Maintenance Obligations Regulation, a designation made prior to the
commencement of proceedings must result from a mutual agreement “in writing or recorded
in any medium, the information contained in which is accessible so as to be usable for
subsequent reference,” which rule also applies to a designation made outside of any legal
proceeding (Article 8, paragraph 2). The report authored by A. Bonomi finds that, “in the
minds of the delegates to the Diplomatic Session, this provision requires only a minimal
formality reflecting the agreement; it is left up to the States to require more, such as that the
agreement between the parties be mutual and adequately clear (including access to legal
counsel before signing the agreement).”
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2° Desirability of a principle that choice made during the course of proceedings must be express
As stated above, the Divorce and Separation and Maintenance Obligations Regulations defer to the
law of state of the seized judge for determining the form that the choice of applicable law must take
when made during legal proceedings. There is no apparent need for a novel form requirement. To
require writing would be dangerous because it would ignore agreements concluded and
communicated before the judge, even if incorporated in the transcript.
As for the requirement of an express form for every choice of applicable law, an expansion of the
method used by the Maintenance Obligations Regulation would help solve the question of what
weight to give to consistencies and discrepancies between the parties’ findings, or their silence. The
hypothetical is where both parties make reference in their written pleadings to the law of the forum
in the absence of an express agreement in favour of that law. The risk is that such similarity results
from nothing more than the ignorance of the parties – or from the ignorance of only one of them
being taken advantage of by the other – regarding the conflict of laws and the potential applicability
of a foreign law. To minimise this risk, there could be a uniform rule requiring an express designation
during the proceedings, for which the Maintenance Obligations Regulation could serve as the model.
3° Limitation of the requirement of express choice to cases where designations made prior to
proceedings must take that form?
An alternative would impose form requirements for designations made during the legal proceedings
that mimic those required for pre-trial designations. It is worth asking whether we should limit the
need for an express in-court designation only to those disputes where a pre-trial designation must
meet that same requirement. That is the status quo for divorces and separations, matrimonial
regimes and maintenance obligations, but not for contractual and non-contractual obligations. Is it
really reasonable to impose more stringent requirements – and especially a higher degree of
awareness and clarity – when the designation occurs during the conduct of legal proceedings
between litigants than when it occurs before the proceedings between parties to a non-litigious
relationship? Of course, the requirement of an express designation would guarantee that the
litigants have opted in favour of the law of the forum with knowledge of the dispute, after having
compared the effect of the forum law to that of the foreign law that would normally apply. Note
however, that knowledge of the dispute, the degree of awareness and lack of ambiguity are not
required in the area of contract and tort obligations when concluding choice of law agreements prior
to the existence of a dispute.
b)
The judge’s ability to raise the issue of the application of foreign law
To the extent that we would impose a form requirement upon choice of law elections made during
the conduct of proceedings, we might as well require the judge to take notice sua sponte of the
applicability of a foreign law while still inviting the litigants to declare a mutual preference for the
law of the forum instead. In order to minimise encroachment upon national procedural rules, a
“compatibility clause” can be inserted. Such a clause could contemplate that the judge will take that
initiative only where this manner of proceeding is not incompatible with his State’s procedural rules.
Whether the judge has the power or duty to search for the connecting factors set forth by the
relevant EU conflict-of-law rule, or whether he is bound by the assertions of the parties’ pleadings, is
regulated by the law of the Member State of the judge seized.
c)
Impact of the choice of law
The question here is whether a designation made during the course of court proceedings applies only
for the needs of trial, or whether it extends to every dispute arising out of the underlying
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relationship. We find it more judicious to err in favour of the former, derogating in favour of the
latter only where the litigants have unequivocally expressed such a desire.
Article 2 – Designation of the law of the forum during the course of legal proceedings
1. Where an EU conflict-of-law rule gives parties the freedom to designate the law applicable
and the law of the forum is one of the eligible laws, the designation of the law of the forum
can also occur after the commencement of judicial proceedings.
2. A designation of the law of the forum occurring after the commencement of proceedings
must be expressly made. [, but only to the extent that a designation made prior to the
commencement of proceedings must, according to the relevant provisions of the governing
EU instrument, take that form. In such a case,] [T]he applicable law cannot simply be
deduced from the mere concordance or silence of party pleadings on that point. The law of
the Member State of the seized judge shall regulate the proper manner of making that
designation.
3. A designation of the law of the forum occurring after the commencement of the proceedings
is limited to the ongoing proceeding unless it results from the unequivocal desire of the
parties to extend the applicability of that law to any and all disputes arising from their legal
relationship.
4. In cases in which the parties submissions are concordant or do not dispute the point, the
judge[, if the procedural law of the forum permits it,] shall make a sua sponte determination
as to the applicability of a foreign law by operation of the EU conflict rule, while inviting the
parties to declare any mutual preference for the application of the law of the forum. The law
of the Member State of the judge seized regulates the manner of making that declaration, as
it regulates the time available for making it and the form of the designation.
5. Whether the judge has the power or duty to conduct his search for the connecting factors set
forth by the relevant EU conflict rule, or whether he is bound by the assertions of the parties’
pleadings, is regulated by the law of the Member State of the judge seized.
2.2.
Mandatory provisions and exclusions of the right to choose the law of the
forum
Although uncommon, situations in which an EU conflict rule does not give parties the power to
designate the applicable law – or at least prohibits the designation of the law of the forum – are
certainly not negligible (2.2.1.). Certain EU conflict rules, while allowing parties to choose the
applicable law (including the law of the forum), nevertheless specify that this choice can have no
prejudicial impact on any relevant mandatory provisions of law (whether foreign or deriving from the
law of the forum) (2.2.2.).
2.2.1. EU conflict rules excluding application of the forum law: applicability of the foreign
law ex officio or by procedural agreement?
Under the Succession Proposal, the freedom to choose the applicable law is expressly granted to the
decedent but not to persons likely to become parties (heirs, successors, or others with presumptive
rights). Likewise, under the current language of the Registered Partnerships Proposition, partners
cannot designate the applicable law with respect to their joint assets
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Hypothetical no. 2. A French national having his habitual residence in Turkey dies without invoking a
professio iuris in favor of French law. The law applicable to the succession of his estate, according to
the Succession Proposal, will be Turkish law (the place of habitual residence at the moment of the
demise). The surviving spouse and heirs commence probate proceedings in France where they all
reside and where a substantial part of the estate is located. The French judge brings to their
attention the applicability of Turkish law. Nevertheless, the heirs declare by common agreement that
the law of the forum (French law) shall govern the distribution. Does their common agreement
govern the distribution?
Hypothetical no. 3. An Anglo-Belgian homosexual couple obtains a PACS in France, the country of
their primary residence. The couple then moves to England where they live for several years. In an
open proceeding following their separation, the partners habitually make reference to English law,
being the law of the forum. The English judge draws their attention to the applicability of French law
but they nevertheless wish the judge to apply English law with respect to their assets and their
partnership without prejudice to the interests of third parties. Must the English judge respect their
mutual agreement?
The question posed by these hypothetical disputes concerns the weight to be given to party
procedural agreements in favour of the law of the forum. By “procedural agreement” we mean the
litigants’ joint designation of the law of the forum although that law is not one of the applicable laws
that the parties can choose by virtue of the EU conflict rule. The only regulation that takes an express
position on this question is the Maintenance Obligations Regulation. That regulation distinguishes
the choice of applicable law, which is the freedom of the parties to choose from among a limited set
of laws closely linked to the dispute (Art. 8), from the parties’ right to designate the law of the forum
with respect to a particular proceeding by means of a “procedural agreement” (Art. 7).
According to several commentators, the European legislature could, and even should, intervene by
imposing the ex officio application of the foreign law, even where the litigants expressly and
unequivocally agree to have the matter adjudicated under the law of the forum15. Let us first
examine the arguments raised in support of such a position (2.2.1.1). Because these arguments are
not entirely convincing, we will examine the merits of the procedural agreement as an alternative
solution (2.2.1.2) as well as the most workable legal regime for such an agreement (2.2.1.3.).
2.2.1.1. Arguments favouring the ex officio application of the foreign law
The arguments raised in support of the ex officio application of foreign law include the useful effect
of the EU conflict rule or of its mandatory effect (a), the foreseeability and legal security that it
provides (b), the deterrent effect against forum shopping, (c) and its furtherance of the smooth
functioning of the internal market, creation of a zone of freedom, security, and justice as
fundamental objectives of EU private international law (d).
a)
The useful effect and mandatory force of the EU conflict rule
The reference to the principle of effet utile and the mandatory nature of the EU conflict rule is more
rhetorical than real. The EU conflict rule is without doubt mandatory law, but it must be said that an
eventual EU rule codifying the validity of a procedural agreement would also be one. When the EU
rules of conflict designate a foreign law, but also give parties the freedom to mutually agree upon the
application of the law of the forum, the effet utile of that rule is inconsistent with the automatic
15
Refer to C. Esplugues, J. Luis Iglesias & G. Palao Moreno (eds.), Application of Foreign Law, Munich,
2011.
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application of the foreign law over the contrary will of the parties. Therefore, in such a situation, it is
precisely with a view to respect the mandatory and useful effect of EU law – and especially of the EU
rule that permits choice of applicable law – that the judge should respect the procedural agreement.
b)
Foreseeability and legal certainty
The arguments of foreseeability and certainty are not entirely persuasive as justification for the ex
officio application of foreign law.
In the first place, it seems obvious that by spontaneously pleading in favour of the law of the forum,
the parties are demonstrating that they had not foreseen the application of the foreign law, nor
altered their expectations or behaviour in anticipation of the application of a foreign law16. The
application of that law can even come as a surprise and end up frustrating their expectations, which
might be oriented in favour of the law of the forum.
In the second place, we generally hold that party autonomy in international private law is granted to
parties in order to guarantee greater certainty and predictability; for, to choose is to predict! Thus, it
is paradoxical to hear these same arguments invoked in opposition to the admissibility of a
procedural agreement, which gives parties greater autonomy.
Thirdly, if under the Maintenance Obligations Regulation the European Union has come around to
giving parties the freedom to agree upon application of the law of the forum, to the detriment of the
applicable foreign law, then that provision also gives parties the legal certainty that they seek.
c)
Prevention of forum shopping
For the same reasons, it would be difficult to rely on the EU law goal of curbing forum shopping. The
forum shopping to be avoided is that which ends up permitting one party to choose the applicable
law to the detriment of the other party. This phenomenon masks the unwanted unilateral choice of
law made by means of a unilateral choice of forum. A bilateral designation of the law of the forum
(whether or not it is called a bilateral forum designation) circumvents this defect. Moreover, the
possibility of bilateral designation is permissible under the Maintenance Obligations Regulation.
d)
The internal market and the zone of freedom, security, and justice
It is hard to see how the admission of procedural agreements would undermine the smooth
functioning of the internal market and the creation of a zone of freedom, security, and justice. As for
“freedom”, if this term is understood to mean the free circulation of persons, it is not apparent how
this freedom would be negatively affected by giving new freedom to parties when designating the
law of the forum in the procedural context, to the extent that a decision handed down by the forum
would be recognized in the other Member States. The same goes for “security” if by that we also
mean legal certainty, for the aforementioned reasons. This leaves only the requirement of “justice”
that the admissibility of procedural agreements must meet.
2.2.1.2. Arguments in favour of the permitting procedural agreements
Several reasons seem to weigh in favour of admitting strictly controlled procedural agreements: the
quasi-systematically patrimonial nature of the legal situations affected by the EU rules of conflict,
and particularly the largely permissive nature of the rights that they bring to bear and during
proceedings (a), the parties’ potential interest in avoiding costs and delays inherent in determining
the substance of a foreign law whose applicability they had not anticipated (b) and finally, for the
16
Refer to point 1.1.4. of the Summary Legal Analysis which appears above, as the second part of this
Synthesis Report.
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same reasons, the friction between the ex officio application of a given law and the current practice
of the Member States (c).
a)
The patrimonial nature of legal situations and the permissiveness of rights
As shown in hypotheticals 2 and 3 above, the current EU rules of conflict apply most often to
situations involving personal assets, with the exception of the Separation and Divorce Regulation,
which expressly grants litigants the freedom to choose the law of the forum. Thus, subjective rights
relating to one’s personal assets – inheritance rights and personal effect of the sort mentioned in
hypotheticals 2 and 3 – can generally be subject to transactional agreements and even renunciations
in the event of litigation.
Today, party agreements as to applicable law still face difficulties gaining acceptance by one part of
the doctrine in matters where the free will of the parties is excluded by virtue of the subject matter.
Does the act of choosing a different law in substitution of the law normally applicable amount to
exercising subjective rights afforded by the chosen law that the default law either restricts or affords
less liberally? To begin with, we note that the EU’s international private law, under the Separation
and Divorce Regulation, has called into question the soundness of that equivocation. Secondly, we
also note the frequency with which certain subjective rights, under the regime of one or more of the
eligible laws and especially under the default applicable law, which are unavailable at the beginning
of the legal relationship, spring into existence under that same law at some subsequent moment,
especially after the commencement of litigious proceedings. This kind of “generation”, at the
moment of and during the course of a proceeding, of formerly unavailable subjective rights can be
seen in several areas of the EU’s international private law.
-
This is the case, for example, with respect to maintenance rights: according to several legislations one can renounce one’s rights to overdue alimony and maintenance payments;
-
Likewise, in the area of inheritance rights, under several legislations prohibiting so-called
“abdicative” inheritance pacts, one cannot renounce these rights so long as distribution of
the estate has not yet begun. But, one can renounce practically everything thereafter, during
legal proceedings.
-
Finally, the same is true for patrimonial rights flowing from a contractual relationship
involving a disadvantaged party such as an employee or consumer who, under several
legislations, can validly renounce their rights after the commencement of a dispute or, in any
event, during the conduct of legal proceedings.
In the result, when the unavailability of a right is due to a need to protect a party, that unavailability
is no longer justified after the commencement of proceedings.
b)
Legitimate avoidance of costs and delays inherent in determining the foreign law
A foreign law whose applicability the parties did not predict and that has not shaped their
expectations or behaviour prior to the commencement of proceedings, can be burdensome to
establish during the proceedings. The litigants can hope to minimise the costs associated with the
determination of a law with which they are not familiar and place their confidence in the application
of the law of the forum for the protections of their respective rights and obligations. This goal seems
worthy of consideration.
c)
Tension between ex officio application and current practices of the Member States
As stated in the General Summary above, it appears that the systematic ex officio application of a
conflict rule would run contrary not only to the current Anglo-Saxon approach—which honours the
initiative of the parties—but also the practices of France and certain Scandinavian countries. To the
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extent that litigious rights are available, France, Sweden, and Denmark permit parties to designate
procedurally the law of the forum.17
2.2.1.3. Managing the procedural agreement
Even if it is to be admitted as a matter of principle, the EU procedural agreement must nevertheless
be strictly regimented. Thus, it must be subject to requirements as to both form (a) and substance
(b), the non-fulfilment of which binds the judge to apply the foreign law designated by the EU conflict
rule.
a)
Formal Requirements
As for formal requirements, we think it sufficient to borrow those required for the designation of the
law of the forum during the conduct of proceedings. Thus, the procedural agreement must be
express. In cases of party agreement or silence, the judge must nevertheless make his own
determination on the applicability of the foreign law designated by the EU conflict rule while inviting
the parties to declare their preference for the law of the forum. The form of that declaration, much
like the timeframe and form of the party agreement, should remain under the control of the law of
the Member State of the judge seized.
b)
Content Requirements
As for substance, we imagine four types of restrictions: the existence of a significant connection with
the forum state (1); a verification of the ripeness of the alleged cause of action (2); the possibility for
the ultimate ruling to be recognized in the State whose law is designated (and displaced by the
procedural agreement), or the express reservations of law and order under EU law (3); and finally the
protection of third party legal interests (4).
1. Significant ties with the forum state. A preference for the law of the forum to decide the dispute is
even more legitimate when the dispute has a significant link to that forum (as in hypotheticals 2 and
3). That link will most often derive from the objective contacts that led to the seizure of that forum’s
judge. In effect, those domains in which the parties can choose a forum that lacks ties to the dispute
are the same domains in which party autonomy to designate the applicable law imposes no
limitations upon the laws eligible.
2. The nature of the rights at stake. Next, we could mandate that the litigious rights subject to the
procedural agreement be “available” (or waivable). Once we start down that road, it can be helpful
to specify the law applicable to determine the available or unavailable status of those rights. Three
alternatives are imaginable: foreign law (i), the law of the forum (ii), or a combination of the two (iii).
-
(i) To submit the question of the nature of the rights at stake to the applicable foreign law by
default would have the affect of preserving a limited amount of that law’s control. In effect,
the judge should ascertain the contents of that law in order to determine whether or not the
rights it affords have become available.
-
(ii) A more radical solution—to completely trump the foreign law—would mean the
categorical application of the law of the forum.
-
(iii) Finally, a flexible legal disposition would allow the judge to rule according to the foreign
law unless, in light of the circumstances and ties to the forum state, he feels inclined to rule
in accordance with the law of the forum.
17
Refer to point 1.2.1.3. of the Summary Legal Analysis which appears above, as the second part of this
Synthesis Report.
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3. Recognition in the foreign State whose law is applicable, or honouring its public policies. Another
limitation of the procedural order would accept that the foreign State whose law was set aside can
deny recognition of the decision rendered by the forum State’s judge. This would require stipulating
that the mandate of foreign recognition should apply only if it is foreseeable that the forum judge’s
decision will need execution in the foreign state. Such a provision would risk undermining the
principle of mutual recognition, especially if the applicable law is that of a Member State. A
preferable approach would be to expressly reserve the “mandatory provisions” (lois de police)18 of
the foreign state whose law is designated applicable under the conflict rule.
4. Protection of third party interests. The parties’ preference for the law of the forum can under no
circumstances prejudicially affect the rights of third parties. This principle is expressly set forth in
certain provisions granting parties the right to choose the applicable law – notably the Rome II
Regulation and the Matrimonial Regimes Proposition – but should be considered implicit in any
situation where the will of the parties is admittedly at play. An express provision safeguarding the
rights of the third parties in case of a procedural agreement thus seems particularly appropriate.
Article 3 — Procedural Agreement
1.
Where an EU conflict rule does not expressly vest parties with the freedom to designate the
law of the forum as contemplated by Article 2, and where they nevertheless prefer such law
during the proceedings, their procedural agreement to that effect is valid insofar as the dispute
concerns rights that are available at the time of the proceedings, [which can be validly
renounced before the court] [provided that sufficient ties to the forum state are present.]
2.
The foreign law normally applicable shall determine at the time of the proceedings whether
and to what extent the rights at stake may be freely disposed of by the parties, [and whether
and to what extent the parties can validly renounce litigious rights], unless, in light of the
circumstances and the parties’ ties to the Member State of the seized judge, it appears that a
ruling can be made under the law of the forum state.
[3.
The judge will refuse to give effect to the procedural agreement where it is foreseeable that his
decision under the law of the forum risks being unenforceable on public policy grounds in the
foreign state whose law would normally have been designated applicable, if the decision must
be executed in that State.] [The procedural agreement cannot negatively impact the public
policy of the State whose law is designated by the EU conflict rule].
3.[4.] The provisions of Article 2 concerning the form requirements for choice of law designations
made during proceedings shall apply to the procedural agreement.
4.[5.] The procedural agreement binds the parties only for the pertinent proceedings. It can in no
way prejudice the rights of third parties.
5.[6.] In the absence of a valid procedural agreement, the judge will apply the foreign law in accordance with the provisions of the following articles.
2.2.2. Mandatory Provisions
The EU regulations recognize several types of mandatory law: those of state origin whose mandatory
nature is founded upon the protection of disadvantaged parties (2.2.2.1); those of state origin
designed to protect the interests of the general public of that state (2.2.2.2.); the mandatory
18
The definition and rationale of which will be considered below, under point 2.2.2. of these Recommendations.
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provisions of EU law (2.2.2.3); and finally those provisions regulating safety and behavior, often of an
administrative nature, the violation of which can have an impact on matters of private law (2.2.2.4.).
In each of these cases, the forum must determine the weight to give to these provisions when they
derive from a foreign law.
2.2.2.1. Mandatory provisions protecting a disadvantaged party
Certain EU rules of conflict, even while giving parties the freedom to designate the applicable law,
stipulate that this choice can have no negative affect on provisions of the law that would normally
apply. These laws often have to do with consumer and labour contracts. Under Article 6 and 8 of the
Rome I Regulation, parties can designate the law applicable to the contract. That designation
“… may not, however, have the result of depriving the consumer or the worker of the
protection afforded to him by provisions that cannot be derogated from by agreement by
virtue of the law which [would have been applicable] in the absence of choice …”
Assuming that the law chosen is the law of the forum and that a foreign law would be applicable in
the absence of such a choice, can we allow the interested party to forfeit the application of
mandatory provisions that offer stronger protections of that party’s interests than the law of the
forum?
Hypothetical no. 4. An Italian employer concludes a labour contract with an Italian employee. Under
the contract, the employee will perform the work in Germany. The parties have chosen Italian law to
govern the contractual relationship. That choice can in no way have a negative impact on the
application of mandatory provisions of German law. After a dispute arises, the employee accepts the
jurisdiction of an Italian judge in accordance with the Brussels I Regulation. The employee does not
invoke the mandatory provisions of German law. The judge draws the employee’s attention to the
more protective mandatory German legal provisions (ignoring, for now, that the determination and
assessment thereof can be difficult and time consuming), but the employee expressly forfeits the
superior German protections as he is content with those afforded by Italian law. Must the Italian
judge uphold mandatory provisions of German law, notwithstanding the employee’s renunciation?
One can argue that the weaker party is sufficiently protected once the judge takes the initiative to
mention the applicability of mandatory provisions of foreign law while leaving that party to either
invoke or forfeit its effective application. The overriding application of mandatory provisions in
contradiction of the clear will of the party they are designed to protect seems to undermine the
widely accepted principle that the rights of the employee or consumer flowing from a labour or
consumer contract, if not “available” at the conclusion of the contract, become such when the
dispute arises, notably by way of the transactional agreement. Furthermore, we note that the
employee and the consumer have not renounced their rights but are satisfied with the version of
justice afforded by the law designated by the parties, in this case the law of the forum and its
mandatory provisions.
So, we can propose solutions similar to those contemplated for the procedural agreement, with the
proviso that here again we have a procedural renunciation (a unilateral act) rather than a procedural
agreement (a bilateral act): (i) the clear and express renunciation by a weaker party should be
admissible if made during the proceedings, at least where there is a substantial connection between
the dispute (or the weaker party) and the instant forum; (ii) if the party pleaded in accordance with
the law of the forum without expressly renouncing the application of the more favourable foreign
law, the judge will point out its applicability and request that the party make its own election of that
law’s control (the form and manner being regulated by the law of the State of the judge seized); (iii)
finally, the court must verify the party’s right to renounce litigious mandatory foreign provisions, in
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which case the determination of the law applicable to the availability of those rights can be made in
light of the principles mentioned above.
2.2.2.2. Mandatory provisions that protect the public interest (public policy)
These are essentially “mandatory provisions (lois de police)”. A definition of “public policy” is
provided in Article 9 paragraph 1 of the Rome I Regulation, according to which:
“Overriding mandatory provisions are provisions the respect for which is regarded as
crucial by a country for safeguarding its public interests, such as its political, social or
economic organisation, to such an extent that they are applicable to any situation falling
within their scope, irrespective of the law otherwise applicable to the contract under this
Regulation.”
The judge seized of jurisdiction can always apply the mandatory provisions of his own State (Article 9,
paragraph 2). There is no problem with applying it, because it concerns the forum State. Thus, it is up
to each State to establish conditions for applying its mandatory provisions, the manner in which they
must be pleaded before that State’s judges, as well as the grounds for appealing their application to
higher courts.
What concerns us here are the mandatory provisions of a foreign State and notably of a State whose
law is not designated by the EU conflict rule19. As for the applicability of these policies by the judge of
a Member State, Article 9 paragraph 3 of the Rome I Regulation provides:
“Effect may be given to the overriding mandatory provisions of the law of the country
where the obligations arising out of the contract have to be or have been performed, in
so far as those overriding mandatory provisions render the performance of the contract
unlawful. In considering whether to give effect to those provisions, regard shall be had to
their nature and purpose and to the consequences of their application or nonapplication”.
The predecessor to this provision, Article 7 paragraph 2 of the Rome Convention, was almost never
applied. In the majority of cases where it could apply, a party will seek to avoid the contract by
claiming its invalidity under the public policy of the foreign State of execution. One might as well as
say that the problem of procedurally applying the public policies of a foreign country should arise
extremely rarely. If one supports the idea of adopting a new EU rule, one wonders whether the
judge’s sua sponte invocation of a foreign State’s mandatory provisions falls within the discretion to
be vested in Member State judges when “deciding whether to give effect” to a given public policy. In
our estimation, we see no incompatibility and hold that it is in fact preferable to permit the judge by
his own initiative to invoke the foreign mandatory provisions while stipulating that it shall not harm
his discretionary power to decide whether force must be given to the relevant mandatory provisions.
2.2.2.3. Mandatory provisions of EU law
The EU’s international private law regime provides a growing measure of protection to the
application “of EU legal dispositions, implemented by the forum Member States, from which parties
cannot derogate by agreement”. These dispositions undermine the application of the law of a nonMember State. The question of how to apply such dispositions falls outside the scope of the
contemplated EU instrument because, as EU laws, they are a part of the law of the forum Member
State.
19
In the context of a procedural agreement, they are likely to be mandatory rules of the foreign State
the law of which is designated as applicable.
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2.2.2.4. Taking into account foreign rules of safety and conduct
The EU international private law regime at times allows for the consideration of certain foreign
provisions, often concerning the public law of either the forum or a foreign state, as necessary to the
application of private law. This is the case with tort obligations relating to rules of security and
conduct that govern in a foreign State. Article 17 of the Rome II Regulation provides that
“In assessing the conduct of the person claimed to be liable, account shall be taken, as a
matter of fact and in so far as is appropriate, of the rules of safety and conduct which were
in force at the place and time of the event giving rise to the liability.”.
Hypothetical no. 5. A traffic accident occurs in Egypt between two Lithuanian citizens. As the common place of habitual residence, Lithuanian law governs their relationship. During litigation, a
question arises concerning the insurer’s responsibility to pay monies due to the victim. Must the
judge, upon his own initiative, consider the Egyptian traffic rules prohibiting a foreigner from driving
without an Egyptian driver’s license, or must he consider those rules only if invoked by the parties?
Since the contemplated EU rule stipulates that rules of security and conduct must be given
consideration as “questions of fact”, it seems reasonable that such consideration should receive the
treatment prescribed for “facts” under the law of the State of the judge seized.
Must we extend this principle to all cases where the (forum or foreign) law designated by the EU
conflict rule commands that consideration be given to a rule emanating from a different foreign
State, regardless of whether that rule derives from public or private law (administrative, penal, fiscal,
etc)? We cannot fully know the risks of such a broad rule. The act of “taking into consideration” a
foreign rule has not yet been adequately explored for us to draw conclusions as to its general validity
when it comes to its procedural implication. Therefore, we must contemplate either the
enforcement of security and conduct rules expressly set forth by EU legal dispositions (especially the
Rome II Regulation), or other cases where foreign laws receive due consideration, while allowing for
an exception to the equal treatment of facts taken under consideration in cases where their
treatment turns out to be inequitable or in appropriate in light of the circumstances of the case and
in the interest of justice.
Article 4—Mandatory provisions [public policy, security, and behavior]
1.
When an EU conflict rule prevents the parties’ choice of applicable law from negatively
impacting the mandatory provisions of a foreign law aimed at protecting one of the parties, the
judge must invoke sua sponte the potential applicability of those foreign dispositions in
accordance with Article 2, paragraphs 4 and 5 of the present instrument.
2.
The interested party [alternative drafting: “who, once proceedings have commenced, has a
cause of action under the law indicated by Article 3, paragraph 2 et.”] can renounce his right to
the application of these mandatory provisions by means of an express declaration whose form,
content, and timeframe requirements shall be governed by the law of the Member State of the
judge seized.
[3.
When a “mandatory provision” (loi de police) as understood by EU international private law
applies to the dispute and emanates from a foreign State, the judge must upon his own
initiative announce the applicability of such law in accordance with Article 2 paragraphs 4 and
5, without prejudice to his power to decide whether to give effect to that provision under the EU
disposition that contemplated it.]
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[4.
3.
When an EU disposition calls for the consideration of security or behavior rules of a foreign
State as a factual inquiry, the treatment of such a disposition shall follow the relevant legal
regime of the law of the Member State of the judge seized.] [This principle applies for all cases
where application of the foreign or forum law designated by the EU conflict rule commands
giving due consideration to the dispositions of a different foreign State, unless those
dispositions prove inequitable or inappropriate in light of the circumstances of the case and in
the interests of justice.]
Establishment of the Content of Applicable Foreign Law
Once the applicability of foreign law is clear, it is necessary to establish its content. The term,
“establishment”, seems preferable to that of “proof”, in that the latter is naturally indicative of an
activity of the parties – the judge doesn’t “prove” anything – and is therefore not entirely neutral.
Subject to that caveat, we will use the two terms interchangeably in the following discussion.
We note that EU conflict of laws rules sometimes foresee the establishment of the content of
foreign law before its applicability has been determined, precisely in order to be able to determine
whether it is applicable or inapplicable to the case at hand. Take, for example, labor and consumer
contracts. Before one can know whether the hypothetical law of the forum can replace the
hypothetical foreign law of the habitual residence or place of employment, one must establish the
whether the foreign law is more or less favourable to the employee or consumer than the law of the
forum. The foreign law applies only where it is more favourable, failing which the judge cannot rule
in accordance with the law of the forum. The same is true of EU conflict of laws rules as to formal
validity: if, under the forum law applicable to the question of substantive validity, an obligation was
not validly performed, then this question will be decided according to the foreign law at the place of
performance.
Another preliminary point is that EU conflict of laws rules may designate the law of a Member State
or Non-Member State—the principle of universal or erga omnes application. Nevertheless, the
distinction is important to keep in mind with respect not only to the burden and methods of proof,
but to the costs and possibility of appeal.
The issue of establishing the content of the foreign law breaks down into several sub-issues: the
respective rights and duties of the parties and the judge (3.1.), the methods of discovery that one or
more of the parties has the power or even the duty to use (3.2.), and the distribution of costs
associate therewith (3.3).
3.1.
Respective Roles of Judge and Parties
Every country recognizes the freedom of parties to help the judge to determine the content of a
foreign law, just as they do with domestic law (3.1.1.). This practice must continue. There is no
reason to constrain the parties to a more limited role with foreign law than they play with domestic
law. We should also maintain the judge’s ability to ask for the parties’ participation (3.1.2.). The next
question concerns the steps that the judge can and must take (3.1.3.) followed by the methods of
interpretation and application of foreign law (3.1.4.).
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3.1.1. Party participation in the analysis of the content of the foreign law
According to a principle widely accepted in European Member States, litigants have the right and the
power to participate in the debate over the identification and interpretation of the legal rules
(domestic or foreign) applicable to their dispute. This right derives from the broader right to be heard
honoured in every Member State; it is part and parcel to one’s access to justice as interpreted by the
European Court of Human Rights and integrated in to the EU legal order. It would be inconceivable
for the parties to a dispute governed by a foreign law to have a reduced and inferior right to be heard
than they would have if their dispute arose under domestic law.
We think it useful to codify, in any future uniform EU rule, the right of the parties to participate in the
establishment of the content of applicable foreign law.
3.1.2. Assistance of the parties requested by the judge
An EU provision expressly authorising the judge to call for the parties’ assistance does not seem
inconceivable. Such cooperation is already legislatively prescribed in certain legal systems and
accepted in others by case-law or commentators.
If the EU were to adopt such a rule, we propose to complement it in two ways. On the one hand, we
could insert a compatibility clause with regard to the procedural regime of the forum so as to avoid
unnecessary friction with Member State procedural norms. On the other hand, party cooperation
could be called for namely from the party invoking the foreign law in order to reduce the number of
cases where the foreign law is invoked for purely dilatory reasons, or in cases where the foreign law
applies because the parties chose it, in which case they are better positioned to know it.
Need we also stipulate the consequence of a failure to cooperate? We would want to avoid
situations where the judge dismisses a party’s request on the ground that it did not comply with his
invitation to assist the court. For, a failure to assist could result from the complexity of the research
into foreign law and it would be undesirable for that failure to harm what could be the
disadvantaged party. The behaviour of the parties should be taken into consideration only upon the
judge’s finding of a party’s reasonable inability to establish the content of the foreign law—an
appreciation to be gained “in light of the circumstances”20. However, it is uncertain whether such an
express provision to that effect is necessary for the contemplated EU instrument.
3.1.3. The judge’s initiative
The Empirical study finds that in every country the judge has a responsibility for the application of
foreign law, in accordance with internal law. To expressly codify such a principle within an EU legal
disposition seems useful and should not raise serious opposition. The same goes for those legal
systems where the judge is bound by the evidence brought before him by the parties, such as in
England, Cypress, Ireland, and Malta. In effect, where one party’s interpretation of the legal
framework, and of the consequences of its application, contradicts the other party’s interpretation of
the same, judges in those countries have the duty to rule on the conflicting interpretations thus
expressing agreement with one or the other. Even where only one party argues in accordance with
the foreign law, the judge is not relieved of his duty to verify the credibility of that party’s sources
and arguments.
The visibly more complex question concerns the scope of the judge’s initiative. Can or must he
progress independently? With respect to EU rules of conflict, this question is much less problematic
20
Refer below, to point 4. of these Recommendations.
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than at first glance; for, as discussed above, a foreign law is most often applicable only by virtue of
one party’s invocation thereof, including the evidence that the party brings forth. The role of the
judge will thus consist of examining the evidence and, if necessary, requiring still more evidence
thereafter. A new rule prescribing the “duty to research ex officio” the content of the foreign law
seems unnecessary. The language of such a provision might well be ambiguous and not entirely
compatible with the procedural laws of certain countries.
3.1.4. Interpretation and application of the foreign law
We can agree that the judge should make every effort to apply and interpret the foreign law just as
would a judge in the State from which that law emanates. Whereas only certain legal systems
expressly codify such a principle, the others do not appear to contest it. The requirement of
uniformity applies across Europe by virtue of the requirement of the uniform treatment of applicable
law throughout the European judicial area, which stands alone in its guarantee of the certainty and
predictability of the rule of law aspired to by the EU rules of conflict. The goal is to avoid situations in
which Member State judges rule differently when seized of the same questions of law, or at least to
limit that phenomenon to situations caused by gaps in the law and outlier case law. This is why we
would recommend the express codification of a uniform rule of interpretation and application
conforming to what happens in the courts of the State from which the applicable law emanates.
3.2.
Methods of Ascertainment of Foreign Law
The weight of opinion favours the continued acceptance of free choice of the methods of proof,
whether used by parties or judges (3.2.1). The judge should retain the power, as in other respects, to
attribute to each piece of evidence the degree of importance that he considers appropriate. In the
event of future EU action, we must address whether the Union European should nevertheless
exclude certain methods of proof (3.2.2.) and, most importantly, if it can enhance the efficacy of
existing instruments while creating new ones (3.2.3.).
3.2.1. Freedom of choice of methods of proof
The national contributions to Part I of the present study show that judges and parties currently use
different methods of proving the content of foreign law including: recognized experts (such as
specialized institutions such as the Max Planck Institute at Hamburg, A CRIDON in France, and the
Swiss Institute of comparative Law which provides services to judges both in Switzerland and
abroad), ministries of justice and foreign affairs, embassies and consular networks, and the personal
knowledge of the judge. This plurality of methods exists not only within the European Union, but
also within each Member State, although the number and exact form of admissible methods varies
between them. The national contributions indicate that none of the Member State legal systems
contain rules that oblige judges to utilize one method of proof to the exclusion of all others. In other
words, there exists a largely free choice of methods of proof.
An individual judge’s margin of discretion in this respect is core to his responsibilities and should
certainly be preserved. To require that judges adopt a particular method of proving foreign law
would render judges and their proceedings too dependent upon the individuals involved in applying
those methods. The only duty that can be appropriately imposed upon judges would be that of
consulting a judicial office of the foreign country concerned. The question then becomes whether it
is practically feasible to require, for example, an English Commercial Court to make use of the
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European Judicial Network in order to obtain the opinion of a Lithuanian Regional Court judge on a
question of Lithuanian law that arises in a English court. It is not hard to imagine cases in which such
a duty would introduce an unacceptable degree of delay and confusion into the English proceedings,
which in turn could undermine the attractiveness of the Commercial Court. Although we can
certainly imagine situations in which using European Judicial Network would be extremely helpful,
the discretion to do so should remain with the individual judge.
3.2.2. Preservation of existing legal instruments
Another logical question is whether certain methods of proof should be entirely excluded. As it
stands, there is no apparent need to take such a step. Even if there were, the legal power to do so
appears uncertain; whether the European Union has the power to mandate or prohibit a given
method of proof is doubtful. In any case, any European Union instrument regulating the methods for
establishing foreign law should preserve the power of Member States and their judges to continue to
utilise the methods of proof that are currently in use.
3.2.3. Enhancement of existing instruments and creation of new ones
The fruit of interstate cooperation, the London Convention of 1968 could be revitalized (a). Likewise,
the European Judicial Network could be better exploited to furnish the framework for a certain
number of EU initiatives (formation, database development, etc.) (b). We could also imagine the
creation of one or more centres of expertise in foreign law financed by the European Union (c) or to
vest natural or legal persons with the power to issue “ European certificates of custom” (d).
a)
London Convention of 1968
Commentators generally praise the 1968 London Convention, though it is hardly used in practice. The
convention’s primary critiques are that it is little known and works too slowly, and that it cannot be
used directly by notaries or by the legal representatives of disputing parties. On the other hand, the
system of Central Authorities or Contact Points foreseen by the Convention has proved very effective
in other treaty frameworks. The London Convention Contact Points meet regularly and make every
effort to work efficiently. Further improvements within the legal systems of the Convention’s
Member states are conceivable:
-
In terms of form, when it comes to a treaty open for signature by non-Member States, those
improvements can be made through an EU disposition that makes reference to the treaty
accompanied by certain dispositions that make adjustments destined for application only
with respect to cooperation between Member States. The manner in which Article 11 of the
Brussels II-bis Regulation integrates the 1980 Hague Convention on Child Abductions and
makes changes to how Member States interact can serve as a model in this regard.
-
In terms of content, these adjustments could consist of, for example: 1) imposing a strict
response deadline that applies in all but exception cases (Article 12 of the Convention is not
adequately precise and binding); 2) allowing for direct contact between the requesting judge
and the person or organization empowered by Article 6 of the Convention; 3) permitting the
contact between the requesting judge and the empowered organization to occur by any
appropriate means; 4) including non-judicial authorities among those empowered to make
the request under Article 3 of the Convention; 5) permitting the translation of the request
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and response under Article 14 of the Convention to be made with access to a “Centre for
Legal Translations” to be set up, or to the translation services of the EU institutions.
b)
The European Judicial Network
There is a general feeling among professionals who participated in the survey that the European
Judicial Network has enormous potential that has yet to be fulfilled. Created by Council Decision
2001/470/CE of 28 May 2001, and modified by decision 568/2009/CE of the European Parliament
and the Council on 18 June 2009, it is a considerable resource that is not yet being fully exploited.
The Report of the Commission of 16 May 2006 on the Application of the Decision reached that
conclusion, among others, in its Article 19, which states that the Network “is still far from having
developed its full potential”. This observation seems equally valid for the role the network plays in
the application of foreign law. We must analyze the relevant dispositions expressly pronounced by
landmark decisions (1) before sketching certain perspectives on its evolution (2).
1. The legal framework today
Decision 2001/470/CE carves out the function we contemplate here (i), stipulates the actors
empowered to provide answers about foreign law (ii) and the deadline for responding (iii) and,
concerning the weight to be given to it, preserves the discretionary powers of the requesting judge
(iv). In force since 1 January 2001, Decision 568/2009/CE requires States to satisfy themselves of the
reliability of the methods employed (v).
-
(i) Function. Article 3 of Decision 2001/470/CE named for the “tasks and activities of the
network” sets forth in subpart 2 that the network shall conduct its activities in furtherance of
“the effective and practical application of EU instruments or conventions in force between
two or more Member States”. In particular, the instrument foresees that when the law of
another Member State is applicable, the jurisdictions and authorities seized can access the
network in order to obtain information as to the substance of that law. Consequently, a
request for information on the substance of a Member State’s law is without a doubt a
“request for judicial cooperation” as understood by Decision 2001/470.
-
(ii) Actors. Responding to such a request constitutes one of the tasks of “contact points”.
Article 5, part c, speaks of furnishing “all information facilitating the application of the law of
another Member state that applies by virtue of an EU act or international instrument”. To
that effect, the authority of the point of contact to whom a request is addressed can be
founded upon any other authority of the Member State bestowed by Article 2 for the
furnishing of the requested information”. Thus, it is referring to authorities which are part of
the network.
-
(iii) Deadline for Responding. As for the “processing of requests for judicial cooperation”,
Article 8 paragraph 1 orders the contact points “respond to all requests submitted to them
without delay and at the latest within fifteen days of receipt thereof”. However, no deadline
is imposed where the request asks the contact point not to respond himself but to contact
another member of the Network seeking information about another Member State.
-
(iv) Discretionary use of the response. “The information contained in the reply shall not be
binding on the contact point, the authorities consulted or the authority which made the
request.” The requesting judge enjoys discretion (also found in Article 8 of the London
Convention).
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-
(v) Adequate means. Article 2, part 2-bis was added by Decision 568/2009/CE instructing
Member States “to ensure that the contact points have sufficient and appropriate facilities in
terms of staff, resources and modern means of communication to adequately fulfil their tasks
as contact points”.
2. Perspectives on Evolution
We would be remiss not to note that the European Union already has a structure that, at least on
paper, appears well adapted for this task. It seems intuitive that to provide assistance to the judges
of Member States in the reciprocal application of their laws fulfills a natural vocation of the European
Judicial Network. In arguing that it only needs more time to prove its suitability to this function, one
might also call for giving it greater visibility (i). We should pay as much attention to the mechanism
whereby the Network organizes dialogue between state judges (ii), which would bring about some
adjustments as to its constitution (iii). We shall also discuss the notion of adding to the
responsibilities of judicial authorities in the state whose law is applicable elsewhere (iv). Finally, the
development of the Network’s database and the continued training of judges who use it would
appear, if indirectly, to strengthen the cooperation between judges during the foreign application of
their laws (v).
-
(i) Better visibility. Among the Network’s other attributes, the sharing of information on
foreign law seems to be of secondary importance, judging from the Decision that instituted
it. Such a mission does not appear in the Decision’s list of “considerations” or in its
“Synthesis” found on the website of the Commission. The Report issued by the Commission
in 2006 does not mention it in any specific manner in its statement of objectives. We would
add that specialists are often unaware of the existence of that capacity.
-
(ii) Enhancement of dialogue between jurisdictions. The originality of the Network lies in the
assistance it provides to the judges of a Member State in consulting authorities of the legal
system of the foreign State whose law is applicable. Interestingly, this mechanism is not
expressly envisioned by international treaties, which arrange for authorities with no
responsibility for its application to supply information about foreign law. By contrast, direct
inter-judicial contact has many advantages. Any disadvantages fall to the expertise of judges,
who can manage them. That originality is particularly well adapted to the function explored
by the present study. In effect, if we can agree that an applicable foreign law should be
applied by the judge seized as it would be applied by a judge of the State from which it
emanates, then it seems only reasonable that the judge seized should be able, at the very
least, to contact a judge of that foreign State (who theoretically could have been seized of
the same dispute, and could be seized in the future of a related dispute in light of the
connecting factors and legal questions it poses). This mechanism for “inter-jurisdictional
dialogue”, the potential for which reaches across Europe, will be increasingly valuable
between States engaged in the reciprocal application of their national laws.
-
(iii) Expanding the membership of the Network. In order to achieve this goal, it would perhaps
be useful to ensure that the “members of the Network” are indeed active judicial authorities.
We envision a legal disposition allowing for the membership of “any judicial or administrative
authority with responsibilities furthering judicial cooperation in civil and commercial matters
and whose contribution is deemed useful by the Member State employing that authority”.
However, we note that the “contact point” can be someone other than a “judge”, although
Article 2, part 2, provides that in such a case the concerned Member State “shall establish
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effective ties with the judicial authorities”. A complementary measure would consist of the
creation or reinforcement of comparable professional networks21.
-
(iv) Expanding the responsibilities of the requested judge. The current system offers certain
advantages by giving the seized judge exclusive control over the foreign law question put
before him, while at the same time ensuring his total freedom of discretion over the weight
to give to the response furnished to him by his foreign colleague: speed and simplicity; the
questions of law and of fact are so closely linked that it would be difficult to divide
responsibility between two different authorities. A system that expands the duty of the
requested judge would have certain merits: the response that he provides would in general
be better “targeted”, more exhaustive, and more exploitable. The establishment of a
mechanism for “pre-decisional requests” in which the adjudicating judge remains responsible
for the factual analysis and the identification of relevant legal questions (as well as for ruling
on any question invoking the law of the forum), while a foreign judge sitting in the State of
the applicable law is responsible for the question of law submitted to him, does not seem
technically out of reach. But it is uncertain whether the need for it will justify the inevitable
costs that it would impose.
-
(v) Database and continuing education. We encourage the development of a database to be
maintained by the Network. Each Member State should bear the responsibility of updating
the database it as needed. In fact, a large number of participants in the empirical study
suggested the creation of a generally accessible electronic database of foreign law, with
information in English or translated into every official language. This proposal seems worthy
of further pursuit. Ideally, such a database should also contain references to case law.
Reliable translations in English and French of the primary codes and laws of each Member
State should be encouraged and made available to all judicial authorities, the training for
which should be integrated to studies in comparative law. The Commission could assist the
Network in that effort (compare Art. 17). In that same vein, other survey participants
proposed the creation of a mere overview with links to official State websites that will
increase awareness of those resources that already exist. In fact, it seems reasonable to
refine the official information currently available on the Internet and to improve national
systems of legal research by adding information on foreign law (libraries, databases, etc.). In
a second step, these resources could be combined into a European database with
information, including statutes and case law, on all legal systems. This would appear to be a
huge and daunting task, but it would reduce costs and facilitate greater access. In addition,
the Network could foster or require the continuing education and training of jurists in
matters of comparative and foreign law.
c)
The creation of European centres of foreign law, or the appeal of existing centres
In an effort to foster cooperation in accessing information on the law of foreign Member States, one
can even imagine the creation of a European Centre or Institute of Comparative Law whose
institutional task would be to assist judges (and non-judicial authorities) in Member States who must
grapple with applying the law of another State. All the States would contribute one or more
representatives trained in their laws eventually designated by the Member States themselves. Access
could be either limited to jurisdictions and their non-judicial authorities or extended to the parties
and anyone else interested. The opinions rendered would not bind the requesting authority but
would enjoy certain credibility. The Swiss Institute of Comparative Law in Lausanne seems to be the
only institute that functions in this manner and thus offers a useful model for inspiration.
21
Refer below, to point 6.2.2. of these Recommendations.
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d)
Organisations empowered to issue “Certificates of European Custom”
Finally, we could vest certain persons (natural or legal, private or public) or professional associations
within the Member States with the power to issue opinions on foreign law, akin to “European
certificates of custom”. The appointment of such persons or associations could be entrusted to each
Member State but on the basis of minimal conditions established by a European instrument. Certain
existing organizations and institutes merit such an appointment (the Hamburg MPI, the Swiss
Institute of Comparative Law in Lausanne, the Asser Institute or CRIDON), which judges and other
States could consult as well.
Article 5 – The roles of the judge and the parties in the establishment of a foreign law
1.
The parties [at all times] have the ability to collaborate with the judge in establishing the
content of the foreign law designated by the EU rule of the conflict, in accordance with the
right to be heard as understood and applied in the Member State of the seized judge and in EU
Law. [The methods, forms, and deadlines for that collaboration are established by the law of
the Member State of the seized judge; or The methods, forms, and deadlines for that
collaboration shall mimic those of the law of the Member State of the judge seized that apply to
disputing parties under domestic law.]
2.
The judge bears the responsibility of implementing the foreign law [designated by the EU
conflict rule]. Insofar as the law of the forum State permits, the judge can seek the
collaboration of the parties, especially of the party invoking application of the foreign law or of
the parties that contracted for the applicability of the foreign law to the dispute. [The law of
the Member State of the judge seized shall determine the manner of party collaboration with
the judge and their respective individual powers.]
3.
Notwithstanding the preceding paragraphs, the judge seized shall interpret and apply the
foreign law as would a judge in the foreign State from which the applicable law emanates [with
due regard for uniformity of treatment]. The public nature of a foreign law is no obstacle to its
implementation [or consideration] by the judge seized.
Article 6 – Methods for determining the content of the foreign law
1.
When determining the content of the foreign law, the judge is free to use any method that he
deems appropriate in light of the circumstances, according to the law of his forum.
2.
When the applicable law is that of a Member State, the judge seized can resort to the
European Judicial Network, created by Council Decision 2001/470/CE of 28 May 2001, as
modified by Decision 568/2009/CE of the European Parliament and Council on 18 June 2009
and any other tool of cooperation supported by EU statute. [By way of derogation from Article
2 of the present instrument, recourse to the European Judicial Network is possible whether the
conflict rule designating the law of a Member State applies by operation of law or party
agreement.]
3.3.
Costs
We distinguish litigation costs generated by the actions of the parties (3.3.1.) from those that result
from actions taken or ordered by the judge (3.3.2.)
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3.3.1. Costs generated by the parties
There is a certain degree of convergence amongst the different legal systems within the European
Union to the effect that the party requesting the preparation of a foreign legal opinion shall bear the
costs associated therewith, as they do when establishing the content of domestic law. Given the
wide acceptance of that principle, it seems unnecessary to codify it with a uniform legal disposition
that could cause friction with the procedural autonomy of Member States.
By contrast, it seems prudent to recommend that legal aid can generally cover the costs borne by a
party participating in the ascertainment of a foreign law. We do not see why the tool of legal aid
should be unavailable to cover or lessen the costs of steps taken by a party collaborating to identify
and clarify relevant provisions of foreign law if the same steps taken with respect to domestic law
would have the benefit of that tool. The task of determining the content of the applicable law,
whether domestic or foreign, flows as much from the right to be heard as from the right of access to
justice.
The subject of legal aid has already been targeted by the European legislature, such as Council
Directive 2002/8/CE of 27 January 2003, which aimed to enhance access to justice in cross-border
affairs. It seems that as soon as a foreign law is applicable, we are involved in a “cross-border
dispute” (Article 2 of the Directive), which refers to any dispute “where the party applying for legal
aid in the context of this Directive is domiciled or habitually resident in a Member State other than the
Member State where the court is sitting or where the decision is to be enforced”. To eliminate any
doubt, we could modify the language by including within the definition of cross-border “any dispute
that is governed, at least in part, by a foreign law”. It would also be appropriate to stipulate that the
costs associated with the application of foreign law should be considered as costs tied to the crossborder character of the proceeding as understood by Article 7 and as included within the notion of
legal aid within the meaning of Article 3.
3.3.2. Costs generated by the judge
We distinguish the use of general resources, essentially the judge’s own personal research (3.3.2.1),
and the use of specific resources requiring the assistance of other persons (3.3.2.2).
3.3.2.1. General Resources
As highlighted in the General Summary of Part I of this Study22, the costs of the judge’s personal
research fall within the general expenses of operating the judicial system, which is financed in large
part by the taxes paid into the State treasury. The portion of these costs that falls to the litigants in
the form of court costs within a given State can depend upon a number of variables (sum at stake,
positions of the parties, etc.). The foreignness of the law that the judge must apply to all or part of
the dispute is not expressly included as one of those variables. The various legal systems have
divergent approaches to the payment of costs generated by judges. They are often added to the
court fees paid by the parties. As a matter principle, court fees should not be so steep as to
effectively deter parties from seeking justice or cause them to shop around for a less expensive
forum than the one in which they live. The fact that foreign law is applicable instead of the law of the
forum should have no effect upon the amount of court fees charged to the parties.
22
Refer to point 2.4.1. of the Summary Legal Analysis which appears above, as the second part of this
Synthesis Report.
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However, some statutes provide that the amount can change according to the “difficulty of the
action”, which leaves a wide margin of judicial discretion. This is why a EU provision stipulating that
court costs cannot be increased due merely to the foreign nature of the applicable law is worthy of
consideration. It finds adequate justification in the goal of avoiding discriminating between actions
brought under internal law versus those brought under a foreign law.
3.3.2.2. Special Resources
We also draw a distinction between costs associated with consulting an authority or expert on a
foreign law (a) and the use of both existing tools of cooperation, the European Judicial Network and
the London Convention (b).
a)
Expertise solicited from a private person or public authority
As mentioned in the General Summary, positions taken by Member State legal systems on sharing
the costs of research ordered by judges can vary from one country to the next. The question is
especially relevant to the fees charged by the individuals appointed by judges to conduct that
research. Must the parties cover the fees paid to private experts and public institutions, such as the
cost of expert witnesses called by the judge in order to establish the facts? Or should the state cover
these costs, on the initiative of the judge responsible for implementing the law?
Yet, one could argue that any system that burdens the litigants with the costs of using resources
necessary for the judge’s identification and clarification of the applicable law is hardly compatible
with the European principle of unhindered access to justice, and of the equal protection of domestic
legal proceedings and those governed by EU law, and by the foreign law it designates. As currently
upheld, these principles aspire to eliminate any differences between the treatment of disputes
arising under internal law and those arising under foreign law.
However, we cannot be sure whether the instrument we now contemplate is the most appropriate
way to usher in the codification of such a principle. Because such an instrument would essentially
address the States, an ad hoc directive would be more appropriate in our opinion. Whatever form
such an instrument would take (regulation, directive, or other), if we were to adopt such a principle
then it would be advisable to attach a compatibility clause regarding the most fundamental aspects
of the procedural law of forum State.
b)
European Judicial Network, and the London Convention
Decision 2001/470/CE that created the European Judicial Network is rather conservative on the
question of the sharing of its operating costs. The only pertinent provision is Article 2, part 2-bis,
which requires Member States to verify that their foreign points of contact have adequate and
appropriate personnel and resources. The sharing of costs associated with requesting judicial
assistance is not expressly mentioned.
We can fill this gap by prescribing that when a State makes a request for information under Article 3,
part 2, section b, the State receiving the request shall bear the costs generated by the Network
authorities that handle the request. This approach complies with the general principle followed by
multilateral and bilateral mutual assistance instruments, as well as by the London Convention of
1968, Article 15 of which stipulates that “the reply shall not entail payment of any charges or
expenses except those referred to in Article 6, paragraph 3, which shall be borne by the State from
which the request emanates”. An exception to that rule applies where the receiving office in turn
engages a third qualified organization or expert, in which case the costs shall accrue to the State
making the request, and not to the responding State. But what makes the European Judicial Network
special is precisely the fact that it is composed of offices, individuals, and authorities who serve a
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public function, so that they cannot in turn engage the services of “private organizations and
qualified jurists” external to the Network.23
It seems reasonable and appropriate for the system to require that both the Member State of the
seized judge and the Member State whose law applies to the dispute should share in financing the
costs of adjudication. On the one hand it encourages a wider use of the European Judicial Network,
and on the other hand it acts in recognition of the fact that, when a dispute is governed by the law of
a Member State other than the forum State, then there is a direct enough involvement of that State,
especially when the applicability of its law derives from objective connecting factors, and not merely
from the parties’ agreement. Yet, where the dispute invokes two legal orders, meaning two States, it
is not unreasonable for the costs to be distributed between those two States, at least when the
Network is consulted.
Article 7 – Costs attributable to the application of the foreign law
1.
The costs associated with applying a foreign law are considered to be directly related to the
cross-border nature of a dispute as understood by Council Directive 2002/8/CE of 27 January
2003 aimed at enhancing access to justice in cross-border matter through the establishment of
minimal common rules regarding judicial assistance granted in the context of such matters.
2.
[When the applicable law is that of a Member State, the court fees borne by the parties cannot
be increased due solely to the foreignness of the applicable law.]
3.
[Costs associated with steps taken by the judge, on his own initiative or at the request of a party,
in an effort to clarify the content of the law of a Member State may be imposed upon the parties
as court fees only insofar as required by the fundamental principles of the procedural law of the
State of the judge seized.]
4.
Costs associated with the activities of the members of the European Judicial Network taken
when responding to a request for information by virtue of Article 3, part 2, section b, of Decision
2001/470/CE are to be borne by the requesting Member State.
4.
When the Foreign Law Cannot Be Established
There are times when the content of the foreign law designated by an EU conflict rule cannot
adequately be determined. Several questions arise in such a situation, each one requiring us to ask
anew whether an EU solution would be feasible and what would be the envisioned substance
thereof. First, we must decide at what moment the judge can consider the “evidence” of a foreign
law’s applicability to have been adequately pleaded; this is what we sometimes call the “standard of
proof” of foreign law (4.1); next we must decide at what moment the judge can be satisfied of the
impossibility of establishing a foreign law after efforts to do so have failed (4.2); finally, we must
consider the consequences of that impossibility (4.3).
4.1.
The “standard of proof” of foreign law
As mentioned in the General Summary and the National Reports, the question of when the judge can
consider the content of the foreign law to have been adequately established has a variable answer,
not from Member State to the next, but also from one judge to the next within the same Member
23
Refer to Art. 2 of Decision 2001/470/CE.
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State. Yet, we must not overlook that such a divergence can occur between judges of a single
Member State even when applying their own law in a purely domestic proceeding.
Therefore, there is no reason to respond with a uniform EU rule, which Member State rules of
procedure do not expressly accommodate, and for which it is doubtful that the European Union has
adequate power. Moreover, we could stipulate that a judge should apply a foreign law only after its
content has been proven to a “reasonable certitude”.
4.2.
Effort and timeframe for proof
More delicate is the question regarding the depth and quality of efforts to be made when clarifying
the content of a foreign law. Certain statutes stipulate in effect that these efforts must be
“reasonable”. We can also imagine inserting such an expression into the uniform regulation that we
are now contemplating, thereby attaching to it a requirement that the reasonableness of the efforts
be determined “in light of the circumstances”. These circumstances can include, in addition to the
amount in controversy, the behaviour of the parties, and especially that of the party invoking the
foreign law. To date, none of the States sanction the failure of the parties to collaborate in proving
the foreign law. However, where a party formally invokes a foreign law without pleading the
elements thereof (except in cases of an objective absence of means to do so), that party is
demonstrating its lacks of interest in having the matter adjudicated under that law.
In certain countries the practice has evolved towards requiring the judge to indicate in his opinion
the steps he took in ascertaining the foreign law. The reason for this is to preserve the possibility of
appealing to a higher court as to the reasonableness of those efforts. It is hard to imagine the
codification of such a provision within an EU instrument because it too directly and profoundly
encroaches upon the structure of judicial decision making.
Yet, one wonders whether it should be necessary, where the EU conflict rule designates the law of a
Member State, for the judge of any other Member state to undertake particular efforts that would
practically eliminate situations where the content of a Member State’s law is impossible to establish.
Notably, we could stipulate that the judge must consult the European Judicial Network before
finding it impossible to establish the content of a Member State’s law.
A useful EU regulation could mandate that the “timeframe” within which to establish the content of
a foreign law should be “reasonable”.
4.3.
When the foreign law cannot be applied
Is it necessary that, on account of the objectives of the EU rules of conflict, all Member States must
pursue the same solution when not able to establish the content of the law that those rules
designate, and that the solution be prescribed by an EU rule? The answer to that question is less
evident than it seems at first glance (4.3.1). If we answer in the affirmative, we would need to put in
place a solution free of excessive rigidity (4.3.2).
4.3.1. Legitimacy of an EU Regulation
A relatively clear consensus exists among Member States as to the consequences of a failure to
determine the content of the foreign law applicable to a legal question: the law of the forum applies
to that question. The principle of this rather practical solution is unimpeachable given the frequency
with which EU conflict of laws rules include the law of the forum among the potentially applicable
laws.
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Although very widely practiced and largely accepted in the various national laws, this solution has
many flaws. It is hard to invoke in defence thereof the goals of legal security and the prevention of
forum shopping. To begin with, the choice of one forum over another is hardly influenced by the
foreseeability of consequences associated with the impossibility of establishing the content of the
applicable law. Secondly, the stated goals, assuming they play a role here, should logically lead to the
adoption of a subsidiary solution resulting in “the application of the same law whatever the forum
seized.”24 Such would be the case if this Ersatz consisted for example of applying the “law of the
country more strongly connected to the dispute”. If instead we require of the judge the pure and
simple application of his own law as the law of the forum, the applicable law will depend on the
forum seized thus favouring a tendency toward the kind of forum shopping that we say we want to
combat.
At the same time, it is legitimately and quite frequently asked why a claim based on foreign law
should not simply be rejected where the claimant is unable to meet his burden of establishing the
foreign law to the satisfaction of the judge. This might be considered a question of procedure rather
than a point of private international law, but it would have the effect of displacing the application of
foreign law as much as would a conflict of laws rule. The right to be heard and the right of access to
justice appear to prevent systematically rejecting the request due to mere fact of the impossibility of
proving the foreign law. Such a systematic rejection, however, is not seen in any of the Member
States.
Under these conditions, in order to justify adopting a new EU instrument in this domain, we need
only point out the EU nature of the conflict rule, paralyzed by the impossibility of establishing the
content of the law that it designates. At such a moment, it seems reasonable that the subsidiary
solution should derive from the same source and be equally uniform as the primary solution that
first failed.
4.3.2. The possible content of an EU norm
The large majority of Member States have adopted the solution of applying the law of the forum. If
this is the right approach, then it must nevertheless be relaxed in certain ways.
-
Like certain national legislations, it would be appropriate that when the EU conflict rule
adopts other jurisdictional criteria that designate another foreign law, the judge must apply
the other foreign law provided that he can establish its content. This approach offers the
advantage of designating the same law regardless of the forum seized.
-
If the EU rule that is the source of the conflict rule contains an escape clause—such as Article
4 paragraph 3 of the Rome II Regulation—it seems reasonable for the clause to remain in
effect. Thus, the law of the forum should apply as a substitute for a foreign law whose
content could not be established only if no other foreign law is applicable by virtue of and
under conditions set forth by the clause.
-
It would be desireable for the judge to be able to override the application of his State’s law
when it would lead to an inequitable outcome. The judge’s power to do so would allow for
consideration of other adopted or contemplated solutions: reference to other neighboring
legal regimes (the classic scenario being that of Islamic law, although we could also imagine
24
Except the country, the law of which is designated, if that country is a Member State. It has nevertheless been explained above that situations in which the law of one Member State cannot be
determined by judges of another one should be quite exceptional.
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the law of a Commonwealth country) and consideration of the law of a State have close ties
to the instant dispute where an escape clause is not at play, or where the prerequisites for its
application are not fulfilled. The substitution of the foreign law with the law of the forum can
also be superficial at times; we should question the validity of expressing a preference for a
foreign law whose content the judge can manage to establish or for foreign dispositions in
general that have a public or administrative character. If it would be inappropriate for a lack
of proof of a foreign law to result in the automatic rejection of the request, such an outcome
should not be impossible in light of the circumstances and of the behaviour of the parties.
Article 8 – The inability to establish the content of the foreign law
1.
When the content of the foreign law designated by the EU conflict rule cannot be established [to
a degree of adequate certainty] within reasonable time [and despite reasonable efforts], the
judge will apply the law of the forum, except where the circumstances reveal that it would be
[manifestly] inequitable for the issue in dispute to be decided in accordance with that law. In
that case, the judge will adopt an equitable solution taking into account other relevant
information about the foreign law.
2.
If the EU conflict rule requires subsidiary connecting factors that, in effect, designate a different
foreign law, that law will apply to the extent that its content can be established in accordance
with the present provision. An exception shall apply if provided by the EU regulation that
imposes the conflict rule favouring the law of the State having the closest ties to the instant
dispute.
3.
When the applicable law is that of a Member State, before determining that its content is
impossible to establish, the judge seized shall research that law making use of the European
Judicial Network except where it would appear unreasonable under the circumstances to do so.
5.
Review by Higher Courts
Although the statutes and practices of Member States are not homogenous when it comes to
appealing the implementation of a conflict rule and of the foreign law that it designates, certain
indications of convergence are visible. We must first discuss whether the European Union has the
power to issue uniform rules governing appeals of the EU conflict rule and, if so, would be the
substance of such a rule. It is customary within the Member State case law and doctrine to
distinguish whether an appeal affects the application of the conflict rule (5.1) or of the foreign law
per se (5.2) and it seems reasonable for the EU conflict rule to adhere to that same distinction.
5.1.
Appellate review of the application of conflict rules
First we will set out the obstacles that can result from the adoption of an EU conflict rule (5.1.1), in
order to better appreciate the legitimacy of an EU legal disposition governing the possibility of
appealing such a decision (5.1.2).
5.1.1. Anticipated obstacles
Judicial error can occur either in the trial judge’s failure to apply the EU conflict rule (5.1.1.1) or his
erroneous application of it (5.1.1.2).
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5.1.1.1. Failure to apply the EU conflict rule
Insofar as the EU conflict rule permits the designation of the law of the forum, instances of the
judge’s erroneous application of that law will be rare.
-
If we allow designations of the law of the forum during the proceedings and, in the absence
of pertinent pleadings, require the judge upon his own initiative to raise a foreign law’s
applicability while inviting the parties to move for the designation of the law of the forum,
then it would effectively be wrong for a judge to apply the law of the forum without
proceeding in this manner.
-
However, in cases where the tacit designation of the law of the forum during proceedings
would be valid, then a complaint that the judge failed to apply the foreign law no longer
stands.
Finally, it is possible for the judge to apply the national conflict rule instead of the EU conflict rule.
5.1.1.2. Misapplication of the EU conflict rule
An erroneous application of the EU conflict rule occurs where the parties do not agree as to the
applicable law. Following their respective arguments, three scenarios could arise: 1) the judge finds
that the EU conflict rule designates the law of the forum although, according to the appellant, it
designates a foreign law; 2) the judge finds that the EU conflict rule designates a foreign law when in
fact it designates the law of the forum; and 3) the judge finds that the EU conflict rule designates a
foreign law although it designates a different foreign law.
5.1.2. Legitimacy and content of an EU regulation
If codification of even the possibility of appealing the EU conflict rule is inconceivable (5.1.2.1.), then
the regulation of criteria and procedures seems impossible to justify and carry out (5.1.2.2).
5.1.2.1. Possibility of appellate review
All the Member States allow appellate review of the application of a conflict rule.
The codification of that right within an EU legal disposition does not appear incompatible with the
division of power between the Union and the Member States. In support of such a disposition we
invoke the principle of equal protection of situations arising under EU vis-à-vis disputes arising under
domestic law. If, in a purely domestic dispute, a decision handed down by a Member State’s court of
first instance can be appealed on grounds of the exactness with which the national judge identified,
interpreted, and implemented the pertinent legal rules, then the same should go for a dispute that
happens to have ties to several States and be governed by the EU private international law.
In other respects, the duty of Member State supreme courts to submit questions of interpretation of
EU conflict rules to the European Court of Justice, prior to handing down their final decisions, works
in favour of the right to appeal.
5.1.2.2. Criteria and procedures of appellate review
If we accept the possibility of appellate review per the EU conflict rule, it seems consistent with the
aforementioned principle of equal treatment that we also stipulate that the conditions for appeal be
the same as those established in a Member State for appeals on questions of its own national law.
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At present, Member States’ review regimes regarding the application of EU law generally are neither
uniform nor harmonious. EU-derived rules of law are not subject to identical regimes for review in
the Member States, but only to the same standards that apply to internal law. The diversity of appeal
regimes that Member State appellate courts impose on the implementation of EU law, and notably
on the law derived therefrom, is considered compatible with the objectives of EU law. Accordingly, it
should not be any different for EU international private law. Otherwise, current differences between
the Member State regimes for review of the application of the conflict rule do not seem to create a
risk of forum shopping so great as to give one party an advantage over the other.
One could reasonably conclude that decisions applying foreign law should be subject to review on
the same grounds as decisions applying domestic law. To impose uniform means, consequences, and
method of appellate review of those decisions appears undesirable and lacking in legal basis under
European Law, given that mistakes made in interpreting foreign law do not impact the functioning of
the Internal Market to a degree that justifies EU intervention.25
5.2.
Review of the Application of Foreign Law
In other situations, the applicable foreign law may have been properly identified, but improperly
applied. The misapplication of a foreign law can result from the poor identification of the pertinent
rules of law or of the misinterpretation or misapplication of those rules to the case at hand. What
first comes to mind in this regard is the situation where the judge erroneously finds that the content
of the foreign applicable law could not be established, which means that he did not employ all efforts
and resources available to him in order to establish it. Because this scenario does not automatically
require a different treatment, it is appropriate to examine the validity of a conceivable EU norm
imposing that type of uniform rule (5.2.1), in order to set forth the content we would hope to find in
such a regulation (5.2.2).
5.2.1. Legitimacy of an EU norm
In support of new European Union regulatory action, here again we invoke the support of the
principle of equal treatment in the amount of protection afforded by the Member States to matters
regulated by the EU law and those regulated by domestic law. In effect, if a Member State were free
to restrict any appellate review of the application of the foreign law that the EU conflict rule
designate while permitting such review under the domestic regime, then the situation governed by
the designated foreign law would enjoy a lesser protection than f regulated by domestic law.
Moreover, securing access to justice and creating a zone of justice should guarantee that the
“foreign” character of the law applied by the judge has no impact upon the possibility of appellate
review.
25
An EU provision regulating the grounds for appeal would not be without precedent. See Article 38, and
those that follow, of the Brussels I Regulation.
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5.2.2. The potential content of an EU norm
The National Reports reveal a trend towards permitting the appellate review of applications of
foreign law (5.2.2.1). More delicate is the question of review conducted by Supreme Courts,
especially when that review is limited to errors of law (5.2.2.2).
5.2.2.1. Review by appellate courts
The procedural question here is until when, and in what context, can an error of private international
law be relied upon. Member State legal systems generally leave that question up to the litigating
parties even as late as on appeal, including those countries in which the applicability of a foreign law
gets determined upon the initiative of the parties, (such as England, Cyprus, Ireland, and Malta) given
that such errors are considered to be errors of law. Major differences exist, on the other hand, as to
whether the appellate court can rectify the error by applying the foreign law correctly to the facts
revealed to the court below, or must remand the matter to the trial judge with instructions to be
administered in a (relatively more costly and lengthy) retrial.
The permissibility of appellate review of the application of a foreign law could be expressly codified
in a law stipulating that the regime for review of a foreign law mimic the regime imposed by each
Member State for its own law.
5.2.2.2. Review by Supreme Courts
Within the Member States, we observe significant differences in the review by Supreme Courts of
applications of foreign law, ranging from the express radical restriction of such review to the express
unconditional codification of review. Still other positions fall between these two extremes. The
traditional reasons that cited for restricting or limiting the appellate review of foreign law before a
Supreme Court fall essentially into two categories. On the one hand, it is outside the mission of the
Supreme Court to ensure the uniformity of application of the foreign law but only of domestic law
(a). On the other hand, there is the risk that a Supreme Court will interpret and apply a foreign law
differently than the Supreme Court of State from the law emanates (b). Yet, these reasons seem to
lose a large part of their relevance when the question arises with the European judicial space.
a)
Uniformity within the forum
One could argue that the requirement of uniform application of the applicable law within each
Member State flows from the requirement of uniform application of law throughout the European
judicial space. The objective of this Space, and that of the EU rules of conflict, is to guarantee that the
outcomes of important legal disputes do not vary according to the forum seized, which would
perpetuate the uncertainty and unforeseeability of law and injustice.
One has to admit that, in the light of the described objectives, the Supreme Courts should be vested
with a duty to promote the uniform application within their Member States of the law designated by
the EU conflict rule, whatever the origin of that law (domestic or foreign). Similarly, the task
incumbent upon Supreme Courts to guarantee the uniform application of foreign law also derives
directly from the EU goals.
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b)
Uniformity across the European Judicial Space
Again, it is vital that a supreme court’s application of foreign law provide the same uniformity within
that Member State as the foreign law would receive outside of that Member State, especially in the
Member State from which the foreign law in question emanates.
Moreover, to avoid the risk of divergent application or interpretation of foreign law, it is not
impossible to imagine a process of subjecting the question of foreign law to the review of the
Supreme Court of the State from which it emanates26. That amount of cooperation between supreme
courts may at first appear more complex and innovative than realistic. Nevertheless, it is not
unimaginable, due to the “inter-jurisdictional dialogue” increasingly promoted and enhanced by the
EU private international law.
-
In effect, it is already anticipated—for example in the Brussels II-bis Regulation—that judges
in two different States with close ties to the same dispute should enter into “discussions”
with each other in an effort to reach a mutually acceptable solution, especially on questions
of jurisdiction.
-
Also, it is the European Judicial Network that organizes cooperation between judges, including, as we have seen, when determining the content of a foreign law.
We need not conceive of an entirely analogous system for dialogue between supreme courts. The
supreme court of the forum state seized of an appeal claiming the misapplication of the law of
another Member State could refer to or seek the assistance of that Member State’s supreme court.
The conditions, means, effects, and costs generated by such cooperation remain as yet
undetermined, and fall outside the scope of this study. In our opinion, an ad hoc instrument or even
a modification of the normative instruments that currently regulated the European Judicial Network
could offer the best options.
The main obstacles to adopting a regime for the review by one supreme court of another supreme
court’s interpretation of law are not insurmountable. To adopt such a system of review appears
legitimate in light of the principle of equal treatment of EU and domestic legal disputes, and of the
uniform application demanded by the creation of a zone of freedom, security, and justice. However,
it is better to leave it up to each national legal system to determine the methods and criteria for the
review of judicial errors. Procedural differences in how the forum state handles appeals versus how a
foreign Member State handles appeals are rarely significant enough to have an appreciable impact
upon the parties’ substantive rights. When facing difficult questions of foreign law, national courts at
all levels should be encouraged to borrow from the courts of the country whose law is at play rather
than articulate their own rationales. We must also accept that no law is entirely clear and applies
perfectly to every novel situation, which is more likely to occur abroad. So, there will always be room
to argue that errors of foreign law have been committed, no matter how prudently and advisedly the
judge proceeded.
Therefore, an EU legal disposition should codify the review by Supreme Courts of the interpretation
of their laws by foreign courts. It will be important to include in it a compatibility clause regarding the
procedural law of the foreign court.
26
In particular when the relevant question is particularly complex or even hitherto unconsidered within
the legal order of the Member State the law of which has to be applied.
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Article 9 – Review
1.
2.
[3.
4.
6.
Application of the EU conflict rule by a Member State court of first instance will be subject to
the review of that State’s higher courts. [“The grounds for appeal can be the non-application or
misapplication of the EU conflict rule, the judge’s failure to raise the applicability of a foreign
law upon his own initiative in cases governed by Article 3, and the incompatibility of the
procedural agreement with the terms of the Article 4.”] The law of the forum state shall govern
the conditions, means, and effects of the appeal.
The application of a foreign law by a court of first instance is subject to review by appellate
courts in accordance with the law of the forum state. The grounds for appeal shall be the same
as those made available in the Member State governing appeals on questions of domestic law.
Articles 6 and 7 on the establishment of the content of the foreign law apply by analogy.
The disposition of the preceding paragraph applies in cases where the complaint alleges the
failure to use reasonable efforts to establish the content of the foreign law].
An appeal to the highest court of a Member State is possible to the extent allowed by and
compatible with the domestic law of the seized forum state. [When the applicable law is that
of a foreign Member State, the highest court in the State seized can, where necessary in light of
the complexity or novelty of the question, seek the cooperation of the highest court of the
Member State of the applicable law according to the provisions of the instrument governing
such cooperation.]
Application by Non-judicial Authorities
Much as they facilitate the implementation of private law, non-judicial authorities can also facilitate
the implementation of private international law and foreign law27. In this section we devote attention
to the national authorities that play a role in the creation of legal rights or legal status, normally in
non-litigious matters: civil employees, probate authorities, notaries public, and authorities appointed
to registries (real property, commerce, corporate, matrimonial, etc.). A good example is the notary
who becomes involved in making a client’s will or other testamentary document, liquidating an
estate, executing a matrimonial property agreement, or facilitating the transfer of real property.
Whereas the adjudicatory functions and attributes of judges are essentially the same from one
Member State to the next, the legal systems of Member States differ considerably when it comes to
the nature, roles, jurisdictions, and powers of non-judicial authorities. A summary of these
differences is outside the scope of this study. Nevertheless, it is useful for our purposes to
conceptualize two categories. The first groups together non-judicial authorities that exert
jurisdictional functions. In certain countries, this includes the mutual pronouncement of divorce or
an agreement as to maintenance obligations. The second category includes non-judicial authorities
that exert non-jurisdictional functions, such as notaries and, in practically all countries, non-judicial
authorities appointed to maintain public registries.
The contemplated EU instrument could furnish a definition for “non-judicial authority” and more
precisely of “non-jurisdictional function”. An adequately broad and acceptable definition could
center on the notion of “decision” as understood by existing EU Regulations.28 Accordingly, “nonjurisdictional” would refer to any function whose exercise by a non-judicial authority does not lead to
a “decision” as used by EU international private law—an act that settles a dispute and is eligible for
27
28
The term, “implementation“, seems preferable to that of “application”, as the latter tends to be
associated with judicial use of law resulting in a decision capable of attaining the status of res judicata.
See Art. 32 Brussels I Regulation.
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enforcement. The exercise of a non-jurisdictional function could lead to an “act” that is as “public” as
the authority who carries it out. EU international private law also defines and uses this concept,
under the term of “authentic instrument”29.
In order to evaluate the legitimacy of an EU regulation governing questions arising from the
implementation of EU rules of conflict by a non-judicial authority, we must consider the treatment of
the EU conflict rule (6.1), the establishment of the foreign law (6.2), the consequences of an inability
to establish the same (6.3), and the appellate review of implementations of the conflict rule and of
the foreign law (6.4).
6.1.
The Introduction of a Foreign Law
The first question is whether, under conflict rule, interested parties can designate the law of the
State of the non-judicial authority (6.2.1.) and whether they may do so by procedural agreement
(6.2.2).
6.1.1. Freedom to designate the national law of the authority
The domains in which a non-judicial authority is likely to play a role are often the same as those in
which the EU conflict rule offers the parties a choice of applicable law. Such is the case with
contracts, successions, matrimonial regimes, etc. However, the absence of uniform rules in that
regard results in situations where, under the EU conflict rule, the parties do not have the option of
designating the law of the authority. This is notably the case in matters of succession where, before
the court, the parties exercise free choice of law whereas, before non-judicial authority, that choice
is usually the prerogative of the deceased. An initially relevant question is whether the parties
should be encouraged to choose a notary who will execute documents according to the formal
requirements of the law applicable to the substance of the transaction or occurrence of events.
Notaries are certainly free to advise parties to consult a notary in the Member State whose law
applies to questions of substantive validity. If the parties insist on their first choice of notary, that
notary will in most countries be unable to escape certain duties required of him. As a public officer, a
notary is usually unable to turn down cases in which his actions would be admissible in a court of
law; such a refusal would amount to a denial of justice.
That duty gives rise to a series of still more questions: Should notaries have a duty to inform clients
that their circumstances pose a conflict of laws which they may be able to ignore depending on the
disposition of the Member State that employs the notary? Must the notary make his own
determination as to the applicability of a foreign law? If so, how should he make that determination.
These questions are conceptually difficult because the notary is both an agent of the State that
empowers him, and a representative of the persons who engage his services.
The conflict of laws rules governing Member State notaries share at least one common denominator:
the duty that notaries understand the options available to their clients well enough to advise
adequately on the legal significance and consequences of the actions that their clients may be
contemplating At the most basic level, the notary must draw the attention of his client to the right of
the latter to make a choice of applicable law, if the rules of conflict of laws so provide. In any case,
he should not hide the fact that the client has the right to choose a foreign applicable law, for fear
that the person might decide not to engage his services and decide instead to consult a notary of the
relevant foreign country. Whether the notary is then required to learn enough about a possibly
applicable foreign law to be able to objectively advise the client of the advantages and disadvantages
29
Particularly the Brussels I Regulation and the Succession Proposition
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of choosing that foreign law, instead of the law of the forum, remains much less clear. In respect of
matters for which no party choice of law is admissible, the position of notaries when their clients
insist on ignoring the rules of conflict of laws, so as to effectively choose the law of the forum, is
effectively the same as that of judges.
When under the law of the State that empowers him the judicial authority has a duty to inform all
interested parties who solicit his services of the options that the law makes available to them for
protecting their respective interests as best they see fit—such as the available matrimonial regimes,
the freedom of the testator, etc.—he should also inform the parties of the options available to them
under the international private law. He should signal to spouses and testators their freedom to
designate the law of one country or another. If the conflict rule in question derives from EU law and
offers the free choice of law, then we can require the notary to do so. We would simply need to
insert a compatibility clause vis-à-vis the powers given to him by his own State’s legal regime.
When the choice available to the parties encompasses the law of the country that empowers the
notary, any problem concerning the application of the foreign law is avoided. Is the same true when
the EU conflict rule does not grant the freedom to designate the law of the authority? One wonders
whether a procedural agreement could agreement work in the non-litigious context.
6.1.2. The Procedural Agreement
As its name indicates, the procedural agreement was developed for the procedural framework and
more specifically for adjudicatory proceedings. It is hard to see its usefulness where an authority acts
in furtherance of the creation of a legal relationship, rather than in the litigious context. For example,
with respect to a will or marriage contract, the procedural agreement would permit the deceased (or
the surviving spouse) to designate a law other than that indicated in the conflict rule. The factors that
weigh in favour of allowing disputing parties to choose the law of the forum are not persuasive here,
or at least not this stage. In effect, those factors are directly linked to the need to regulate the
consequences of a relationship that has already produced if not exhausted its effect, making the
rights at stake “available”. This is not always the case when the judicial authority is called upon. Also,
there the interests of third parties are often more acute. The procedural accord would be dangerous
insofar as the international rules of jurisdiction are not uniform regarding authorities, which means
that the link between the parties and the State of the authority can be quite tenuous. At best, we
could make an exception for judicial transactions.
6.2.
Determining the Content of Foreign Law
Here we distinguish the burden of proof (6.3.1.) from the methods of meeting that burden (6.3.2).
6.2.1. The role of the authority and interested parties
Interested parties must be allowed to cooperate with the non-judicial authority in establishing the
content of the applicable law. The same goes for the authorities’ ability to seek out the collaboration
of the parties. It seems that the non-judicial authority, like the judge, should remain responsible for
the implementation of foreign law, to the extent that it applies, when applying domestic law. If the
EU were to adopt this principle, we would need to insert a compatibility clause with regard to the
functions and powers attributable to the authority by his State; in certain legal systems, the authority
cannot proceed if the parties have not furnished proof of the content of the applicable foreign law.
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6.2.2. Methods of researching the content of the foreign law
The developments set forth above concerning the establishment of the foreign law by judicial
authorities should apply here by analogy. The resources offered by the European Judicial Network
should also be placed at the disposition of non-judicial authorities. One could make the same case for
the London Convention, the only problem being that it applies exclusively to judges. An additional
step could consist of creating auxiliary professional networks or enhancing existing networks. Clients
often bring matters to notaries that are very delicate or involve foreign elements. Often, the notary’s
foreign counterpart could handle such matters in the concerned foreign country. It is likely for this
reason that notaries around the world have established and relied quite heavily upon specialized
contact networks. At the European Union level, the Council of the Notariats of the European Union
has created the European Notarial Network. This and similar initiatives should be encouraged and
supported by the Commission.
6.3.
Impossibility of Establishing the Content of Foreign Law
The analogy to a judge’s application of foreign law seems to end here. It seems inappropriate that a
non-judicial authority (such as a notary) who cannot establish the foreign law be able instead to
systematically carry out legal acts in accordance with the law of the forum. This would make sense
only if we could require any Member State judge subsequently seized of the duty to verify the
validity of the authority’s acts or document registrations, to do so with an understanding of the law
applied by that authority. In our opinion, this approach should be reserved for exceptional cases.
Moreover, we must consider that sometimes the assistance of the authority is facultative and that
the interested parties can proceed differently (without the authority’s help) in order to attain their
goals. When the involvement of the authority is mandatory for executing a legal act, we could
require the authority to verify the parties’ ability to appear before authorities of the State whose law
is applicable, if equivalent authorities exist. Ultimately, this means that when an authority’s refusal to
execute an act under the law of the forum would cause serious inconveniences for the parties, then
the authority of the forum should carry out their request in accordance with the law of the forum. It
would be prudent to stipulate that, in such a case, Member State judges must also adhere to the
application of that law.
6.4.
Review
As set forth in the General Summary, a legal act executed with the assistance of a notary, or the
registration of an act by a non-judicial authority will usually be subject to the review of judicial
authorities of the country that empowers the non-judicial authority. There is, however, one difficulty
to note. Whereas the proper application of a conflict rule or of a foreign law is subject to the review
of appellate judges of the same State, nothing under the current rules of jurisdiction prevents a
litigation concerning an act executed by a notary in a state from being brought before the courts of
another state. We can perhaps adopt a rule of exclusive jurisdiction assigning disputes over the
validity of an act executed by non-judicial authorities to judicial authorities of the same state, thus
following the approach of Article 22 parts 2, 3, and 4 of the Brussels I Regulation on matters of
corporate formation and decision-making, intellectual property rights, and inclusion within public
registries. Such a rule seems excessively restrictive and risks creating problems concerning the
conceptual difference between the validity of an act, and its effects.
When it comes to the review by hierarchically superior non-judicial forums, we could provide
furthermore that these forums may review the implementation of the EU conflict rule and the
foreign law that it designates in the disputes that they accept for review.
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Article 10 – The Application of foreign law by non-judicial authorities
1.
When a Member State entrusts to a non-judicial authority the role of facilitating the
implementation of the law [governing the legal relationships between private parties] [other
than deciding a dispute between them through a ruling to be enforced,] that authority shall
implement the EU conflict rule provided that the conditions for its application are present. [The
authority, in that regard, can solicit from interested parties any useful information in
accordance with the law of the State that empowers that authority.]
2.
The authority must inform interested parties of a right to choose the applicable law made
available to them by the EU conflict rule under the law of the State that empowers the
authority. [The authority shall ensure that the choice of law is made in accordance with the
dispositions of domestic and EU law that govern the validity thereof.]
3.
In circumstances where parties are permitted to conclude procedural agreements within the
meaning of Article 3, the interested parties can conclude such an agreement before a nonjudicial authority within the framework of a transaction.
The provisions of Articles 5 and 6 (part 1) concerning the establishment of a foreign law also
apply to non-judicial authorities. The authority shall have access to the European Judicial
Network [in accordance with changes to be made to the EU instruments that created it and
govern its operation] as well as to any other cooperative instrument set up by EU legislation.
[The law of the Member State that empowers the said authority shall regulate the sharing of
costs generated by research into foreign law.]
When the substance of the foreign law designated by the EU conflict rule cannot be
established by the terms of Article 7, the forum authority shall inform the interested parties of
their right to involve relevant State officials in the foreign state of the applicable law. [The
authority can agree to proceed with applying the law of the forum only when a refusal to do so
would cause a serious inconvenience to the parties.] [The validity of the authority’s act and its
effects shall be reviewable in light of the said law by a judge of that State or of another
Member State subsequently seized to review it.]
4.
5.
[6.
A non-judicial authority’s implementation of the EU conflict rule and of the foreign law that it
designates can be made subject to the review of the hierarchically superior non-judicial
authority as permitted by that authority’s State.]
[7.
For the purposes of the present article, “non-judicial” shall include any authority not belonging
to the judicial system of a Member State and whose function is not to adjudicate disputes by
issuing a “decision” as understood by EU Regulations.]
Gian Paolo Romano
University of Geneva and Swiss Institute of Comparative Law
Daria Solenik
Swiss Institute of Comparative Law
Martin Sychold
Swiss Institute of Comparative Law
Lukas Heckendorn Urscheler
Swiss Institute of Comparative Law
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Appendix
List of Authors Legal Analysis
General Summary
Daria Solenik
Swiss Institute of Comparative Law
Austria
Andreas Foetschl
Swiss Institute of Comparative Law
Belgium
Laetitia Franck et Pascal Schott
Institut suisse de droit comparé
Bulgaria
Daria Solenik
Institut suisse de droit comparé
Cyprus
Konstantinos Rokas
University of Athens, Greece
Czech Republic
Josef Skala
Swiss Institute of Comparative Law
Denmark
René Franz Henschel
Aarhus University, Denmark
Estonia
Karin Sein
University of Tartu
Finland
Katja Karjalainen
University of Helsinki
France
Laetitia Franck
Institut suisse de droit comparé
Germany
Anne Marit Mann
Institut suisse de droit comparé
Greece
Konstantinos Rokas
University of Athens
Hungary
Andras Osztovits
Károli Gáspár University of the Reformed Church in Hungary
Ireland
Martin Sychold
Swiss Institute of Comparative Law
Italy
Gian Paolo Romano
Institut suisse de droit comparé
Latvia
Ilona Ruke
Aizkraukle District Court, Latvia
Daria Solenik
Swiss Institute of Comparative Law
Lithuania
Azuolas Cekanavicius
Mykolas Romeris University, Vilnius
Luxembourg
Laetitia Franck et Pascal Schott
Institut suisse de droit comparé
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Appendix
Malta
Paul Cachia
Cachia Advocates, Malta
Netherlands
Annelot Peters
Swiss Institute of Comparative Law
Poland
Daria Solenik
Institut suisse de droit comparé
Portugal
Alberto Aronovitz
Institut suisse de droit comparé
Romania
Aladar Sebeni
Universities of Neuchâtel, Berne and Fribourg
Slovak Republic
Josef Skala
Swiss Institute of Comparative Law
Slovenia
Josef Skala
Swiss Institute of Comparative Law
Spain
Alberto Aronovitz
Institut suisse de droit comparé
Sweden
Ulf Maunsbach
University of Lund, Sweden
United Kingdom
Martin Sychold
Swiss Institute of Comparative Law
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Appendix
List of Authors Empirical Analysis
Overview
Comparative Analysis
Lukas Heckendorn Urscheler
Swiss Institute of Comparative Law
Austria
Andreas Foetschl
Swiss Institute of Comparative Law
Belgium
Annelot Peters
Swiss Institute of Comparative Law
Bulgaria
Annelot Peters & Daria Solenik
Swiss Institute of Comparative Law
Cyprus
Konstantinos Rokas
University of Athens, Greece
Czech Republic
Josef Skala
Swiss Institute of Comparative Law
Denmark
René Franz Henschel
Aarhus University, Denmark
Estonia
Daria Solenik
Swiss Institute of Comparative Law
Finland
Katja Karjalainen
University of Helsinki
France
Marion Hervier
Institut suisse de droit comparé
Germany
Anne Marit Mann
Swiss Institute of Comparative Law
Greece
Konstantinos Rokas
University of Athens
Hungary
Andras Osztovits
Károli Gáspár University of the Reformed Church in Hungary
Ireland
Martin Sychold
Swiss Institute of Comparative Law
Italy
Concetta Leuzzi & Gian Paolo Romano
Swiss Institute of Comparative Law
Latvia
Concetta Leuzzi &Daria Solenik
Swiss Institute of Comparative Law
Lithuania
Renata Beržanskiene
Attorney-at-law, Sorainen, Vilnius
Vanessa Brigger
Swiss Institute of Comparative Law
Luxembourg
Marion Hervier
Institut suisse de droit comparé
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Appendix
Malta
Clement Mifsud Bonnici
Malta Correspondent
Netherlands
Annelot Peters
Swiss Institute of Comparative Law
Poland
Anne Marit Mann
Swiss Institute of Comparative Law
Portugal
Alberto Aronovitz
Swiss Institute of Comparative Law
Romania
Aladar Sebeni
Universities of Neuchâtel, Berne and Fribourg
Slovak Republic
Josef Skala
Swiss Institute of Comparative Law
Slovenia
Josef Skala
Swiss Institute of Comparative Law
Spain
Alberto Aronovitz
Swiss Institute of Comparative Law
Sweden
Ulf Maunsbach
University of Lund, Sweden
United Kingdom
Martin Sychold
Swiss Institute of Comparative Law
108