FOREIGN LAW
AND ITS PERSPECTIVES FOR THE FUTURE
AT THE EUROPEAN LEVEL
JLS/2009/JCIV/PR/0005/E4
PART III
RECOMMENDATIONS
Avis 09-184
Lausanne, 11 July 2011
Dorigny CH-1015 Lausanne. Tél. +41 (0)21 692 49 11, Fax +41 (0)21 692 49 49, www.isdc.ch
R e c o m m e n d a t i o n s
RECOMMENDATIONS
The purpose of this Part IV of the present study is that of formulating
recommendations on the
subject of the status and treatment of foreign law within the European Union. Adopting essential y
the same structure which underlies the national contributions and has been fol owed in the summary
of Part I, the present Part will address each of the following six topics in turn:
1.
The
scope of any European Union initiative;
2.
The
introduction of foreign law into legal proceedings, referring essentially to the manner in
which the applicability of foreign law is determined;
3.
The establishment of the
substance of the applicable foreign law
;
4.
The
consequences of impossibility of establishment of that substance;
5.
Review
by
superior instances of the correct application of foreign law and;
6.
The most appropriate approach to these issues when choice of law rules, as well as the
foreign laws which they designate as being applicable, fall to be applied by a non-judicial
authority.
In respect of each of the topics numbered 2 to 6, it would then be necessary to consider whether the
European Union, under the current Treaty on the Functioning of the European Union, has the
necessary powers to intervene and, if so, which form and direction such an intervention should take.
At the present, relatively early, stage of experience with Community instruments laying down rules
for the identification of applicable law, we will limit ourselves to the formulation, under a point 7, of
some conclusions as to the views currently prevailing in Europe and some tentative suggestions of
clearly appropriate improvements to the currently available means of accessing and applying foreign
law within the European Union. To those suggestions, we wil add, under a point 8, the gist of the
suggestions most frequently made by the legal professionals who responded to the questionnaire
which was circulated to them, as well as some proposals which we consider to be appropriate in the
light of the entire empirical analysis conducted (Part II of the present Study).]
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
Community or
non-Community law
(national law or an
international convention). There are currently seven
Community instruments containing provisions
on applicable law, which we will refer to as
“Community conflict of law rules.” The instruments in
question are:
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R e c o m m e nd a t i o ns
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Four Regulations currently in force (as of 15 May 2011): Regulation 1346/2000 of 29 May
2000 on insolvency proceedings
1; Regulation 593/2008 on the law applicable to contractual
obligations (the “Rome I Regulation”)
2; Regulation 864/2007 on the law applicable to non-
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 2007
5 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
Community 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 – Community or non-Community 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:
1
Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.
2
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the
law applicable to contractual obligations.
3
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.
4
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.
5
Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, Convention No. 39
of the Hague Conference on Private International Law.
6
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.
7
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.
8
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}.
9
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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R e c o m m e nd a t i o ns
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to all conflict rules, whether of Community or non-Community origin, which are in effect in the
Member State forum, regardless of whether the designated law is that of a Member State or
an non-member State (
“first option”);
-
to all conflict rules, whether of Community or non-Community 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 Community 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 Community 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 Community treatment of conflict rules and
rules governing applicable law is justifiable only with respect to rules which are themselves
Community rules and, for that reason, uniform.
The arguments likely to be advanced in support of European Union intervention – the Community
law principles of “
effet utile,”
foreseeability and legal certainty that underlie Community conflict
rules, the principle of
protection of vested legal rights under Community 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
Community law, in this case,
Community 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 Community 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 a Com-
munity conflict rule. As a result, the principal of equal protection of vested legal rights by
Community law and internal law may not be invoked;
-
Second, the imposition of uniformity upon the Italian and English
national conflict rules
concerning applicable law by a
Community instrument would not result in increased
fore-
seeability and legal certainty for the couple concerned; the applicable law, in any event, is
not the same in the two countries.
-
Consequently, a Community 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 potential y 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
Community conflict rules and the law that they designate. We must then determine whether an
additional restriction should be introduced depending on whether the law designated is that of a
Member State or a third party state.
1.3. Choice Between the Third and the Fourth Option
With respect to the choice between the third option that targets Community 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 Community 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 universal y,
i.e. regardless
of whether the state whose law is designated is a Member State. Even if the instrument were
to apply only to Community conflict rules, it must apply to all
Community conflict rules and,
more specifically to
al 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 Community 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
Community 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.
Even if we were to exclude non-Community 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 Community 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 equal y
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 Community
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
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R e c o m m e nd a t i o ns
necessitated by the specificities of new areas). It is equal y 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 wel as in the other Community instruments, hereafter referred to as “Community
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.
3. Unless otherwise provided, this instrument applies even where the Community conflict rule
designates as applicable the law of a third party State.
2.
Introduction of Foreign Law into Legal Proceedings
It is apparent from the 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
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.
Most Community conflict of law rules permit parties to reach enforceable agreements in the form of
choices of applicable 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. Some conclusions
as to the desirability of
uniform resolution of these questions wil then be advanced.
2.1. Choice of the law of the forum
One of the peculiar characteristics of Community 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 subjects, 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 general y subjected to important limits and even in respect of subjects such as
divorce or
judicial separation, for which that power is practically nil
. The Rome I I Regulation is em-
blematic 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
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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.
There remains the question of whether, under the Community 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 Community 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 upon which the jurisdiction of the forum is founded. The Rome II 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 Community conflict of law rules
and the relevant Community 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.
2.2. Possibility of choice after proceedings have been instituted
This issue can be divided into
two subsidiary questions: do the
Community conflict of law rules deal
with a choice made during the course of proceedings? If not, how is the issue to be dealt with?
It is unclear whether the relevant provisions of the Rome I and Rome II Regulations extend in scope
to a
choice made during the course of proceedings. On the contrary, a choice during proceedings is
expressly envisaged by two other instruments: the Rome II Regulation and the Maintenance
Regulation.
The former 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. The distinction is of a procedural nature. The expression, « procedural accord», may be
derived from Art. 7 of the Hague Conference’s
Protocol of 23 November 2007 on applicable law,
according to which “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”. If the agreement is concluded before the commencement of proceedings,
it must take a
particular form: “A designation made before the institution of such proceedings shal
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.”
10 The form required of
an agreement reached after the commencement of proceedings, while they are afoot, is left to the
law of the forum.
One finds a broad
consensus that, when a conflict of law rule permits a choice of the law of the
forum, that choice may be made both
before and after the commencement of legal proceedings.
There is indeed no reason to prevent parties from doing during proceedings what they could do
before the proceedings. The reasons which justify party autonomy (foreseeability, familiarity with
one law, material interests)
support the extension of the right of making a choice into the procedural
phase.
10
Art. 7, par. 2.
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There is accordingly no need, for present purposes, to deal with the second subsidiary question of
how the issue should be dealt with outside the scope of the Regulations.
2.3. Form of choice
It seems perfectly possible to conclude that, in the extent to which the Community conflict of law
rules permit choice and to which a choice of the law of the forum is always admissible, the question
of whether a judge must apply foreign law
ex officio, including in cases where this thwarts the
intention of the parties,
loses a great deal of its importance. In choosing the law of the forum, in
conformity with a Community conflict of law rule which gives them the power to do so, the parties
are able to avoid the application of foreign law just as effectively as when employing some
procedural tactic which renders the whole body of private international law irrelevant to the case.
The question of the required form of such a choice then becomes of considerable importance. It is in
particular interesting to consider whether a procedural choice must fulfil conditions different from
those which are imposed for a choice made before the commencement of litigation.
3. 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 wil use the two terms interchangeably in the fol owing discussion.
It should be noted that Community conflict of law rules sometimes foresee that
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. Taking the examples of
contracts of employment and consumer contracts, before one can tell whether the law – in our
hypothesis, a foreign law – of the habitual residence or the place of employment is applicable in
place of another law chosen by the parties – in our hypothesis, the law of the forum –, it is necessary
to establish the content of the foreign law and check whether it may be more favourable to the
employee or the consumer than the law of the forum. The former is applicable only if it is more
protective; if it isn’t, it won’t be applied and the judge will be able to decide according to the law of
the forum. The same is true of Community conflict of law rules as to formal validity: if, according to
the law of the forum applicable to the question of substantive validity, an act was not done in a valid
form, then this issue will be decided according to the foreign law applying at the place where the act
was done.
Another preliminary point to note is that Community conflict of law rules may designate the
law of a
Member State or that of a Non-Member State; that is the effect of the principle of universal or
erga
omnes application. It may nevertheless be important to keep the distinction in mind, especially in
respect of the onus and the methods of proof, but also in what concerns cost and perhaps even at
the stage of correction by superior instances.
The process of establishing foreign law can be broken down into several elements. First, there is the
division of labour between judges and parties, then there are the methods of proving foreign law and
finally, there are costs involved.
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3.1. Respective roles of judge and parties
A principle recognised in every country is that the parties are free to
help the judge determine the
content of foreign law, exactly as they do in respect of
domestic law. This principle should certainly
be maintained. There is no reason to think that the parties should be reduced to a lesser role than
that which they play in respect of domestic law.
3.2. Methods of proving foreign law
The weight of opinion favours continued acceptance of the principle of
free choice of the methods of
proof, whether used by parties or used by judges. The judge retains the power, as in other respects,
to attribute to each piece of evidence the degree of importance which he considers appropriate.
3.2.1. Freedom of choice of methods of proof
The national contributions to Part I of the present study show that both judges and parties actual y
use
different methods of proving the content of foreign law
: experts (including specialised
institutions such as the
Max Planck Institut 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 of foreign affairs; embassies and consular networks; personal acquaintances of the judge.
The plurality of methods exists not only within the European Union, but also within each Member
States, although the number and exact form of admissible methods varies between them. The
national contributions indicate that none of the legal systems of Member States contain rules which
oblige judges to utilise one method of proof to the exclusion of al others. In other words, there exists
a largely
free choice of methods of proof.
The
margin of appreciation left to the individual judge in this respect forms part of his core
responsibilities and certainly needs to be preserved. To oblige judges to adopt a particular method of
proof of foreign law, would be to render them dependent upon the persons involved in applying the
method and thus to make the advancement of the proceedings depend upon those persons. The
only obligation which could properly be imposed upon a judicial officer in respect of foreign law
would be to consult a judicial officer of the foreign country concerned. The practical question is then
whether it would be feasible to oblige, for example, a judge of the English Commercial Court to pass
through the European Judicial Network in order to obtain the opinion of, for example, a judge of a
Lithuanian Regional Court on a question to which Lithuanian law is applicable. It is not difficult to
imagine cases in which that procedure would introduce an unacceptable degree of delay and
incomprehension into the English proceedings, which could in turn undermine the attractiveness of
the Commercial Court as a dispute resolution forum. While there are certainly other types of cases in
which cooperation through the European Judicial Network could be extremely helpful, it must be left
up to individual judges to identify such cases.
Another question which logically arises is that of whether certain
methods of proof should be
entirely excluded. There is currently no reason to think that this step needs to be taken and even if
there were, the problem of the need for a legal basis would arise. Whether the European Union
currently has the power to imperatively prescribe one method of proof or prohibit another one, is
doubtful.
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Any initiative to be taken should therefore aim at
providing additional facilities to judges and
perhaps also to parties, of which the judges or parties may or may not decide to make use. Rather
than restricting currently existing procedural options (the civil procedure laws of Member States
rarely list the admissible means of proof, by the way), steps should be taken to enlarge the gambit of
possibilities.
3.2.2. Some methods
a)
London Convention
The 1968 London Convention is general y welcomed by commentators, but hardly used in practice.
The principal complaints made about it are that it is little known and works too slowly. Regrettable is
also that it cannot be directly used by notaries or by legal representatives of parties to litigation. 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 do their best to work efficiently. Further improvements at the level of the Convention’s
Member States are conceivable, but it appears easier and more effective to reinforce the European
Judicial Network which is already in place throughout the European Union.
b)
European Judicial Network
There is a general feeling that the European Judicial Network has enormous potential and that that
potential is far from fully realised at the present day. The Network permits a judge in one Member
State to help a judge of another Member State. It is interesting that this mechanism is not expressly
envisaged by international treaties, which arrange for information about foreign law to be supplied
by authorities which have no responsibility for its application. Direct, inter-judicial contact has many
advantages. The disadvantages fal within the scope of the responsibility of judges and can be
managed by them.
An inexorable prerequisite to the responsibility of judges is the margin of appreciation left open to
them. Questions of law and questions of fact are very closely linked to each other, so it is hardly
advisable to bind a judge to an opinion given by an expert, even if that expert is a judge of the
country the law of which is being applied. Judicial policy has a major role to play and then there is the
issue of the division of costs generated by the provision of judicial legal opinions.
Some degree of judicial “further education” is probably also required. The preparation of respectable
translations of the principal Codes and Laws of each Member State into English and French could be
encouraged, made available to all judicial officers and serve as one of the bases of training in
comparative law.
c)
European Centres of Expertise
An alternative possibility is the creation of a European Centre of Expertise. It would employ legal
experts trained in the Member States the laws of which they will be called upon to apply. Authorities,
both judicial and non-judicial, of all Member States would be entitled to call upon the Centre’s
services. Depending upon the number of opinions requested, which will obviously increase over
time, it should become possible and even advisable for the Centre to employ more than one legal
expert from each Member State, permitting them to specialise in particular areas of law. The
establishment and functioning of the Centre would be financed either by the European Union, or by
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R e c o m m e nd a t i o ns
the Member States. The
Swiss Institute of Comparé Law in Lausanne, Switzerland is apparently the
only existing institution which functions in that manner and thus represents a useful model for the
future EU institution. Legal opinions given by the Centre wil not be binding upon the judges who
request them, but will enjoy a high degree of prestige in the light of the independence and
competence of the institution which has prepared them.
Another option would be that of the certification of institutions (like the
Max Planck Institut at
Hamburg and the five French
Centres de Recherches, d’Information et de Documentation Notariales)
already existing in Member States, according to pre-defined certification criteria and under the
condition that they treat enquiries from authorities of other Member States in exactly the same
manner as national enquiries. The services provided by the institutions could be directly invoiced to
the judicial and other authorities which use them.
3.3. Costs
There is a certain degree of
convergence amongst the different legal systems within the European
Union to the effect that the cost of a foreign legal opinion prepared at the request of a party is
generally
to be borne by that party, in the same manner as the party’s costs of establishing the
content of domestic law. Legal aid is again generally available to cover the necessary expenses of
obtaining such an opinion. One could imagine that it is realistic to envisage
higher expenses in cases
involving the application of foreign law, given the need of each party to be represented not only by a
lawyer with expertise in the law of the forum, even if only for procedural purposes, but also by a
(normally different) lawyer with expertise in the issues which are governed by foreign law. It appears
that the existing Community instruments on the subject of legal aid can be interpreted to that effect.
Various legal orders have divergent approaches to the costs of steps taken by judges. The costs of
research conducted by or at the request of judges are often added to the court fees which parties to
litigation are required to pay. As a matter of principle, in terms of the cost of obtaining justice, it is
certainly correct to say that court fees should not discourage applications to the courts or encourage
parties to make applications to foreign courts rather than those near their homes. The fact that
foreign law is applicable, instead of the law of the forum, should therefore have no effect upon the
level of the court fees which are charged to the parties. It is not impossible to imagine that the costs
of applying foreign law will be borne in the first instance by the forum (i.e. the Member State in the
courts of which the foreign law is applied) and that a system can be developed to subsequently share
those costs between the forum State and the Member State the law of which was applied.
4.
Consequences of impossibility of establishment of foreign law
A relatively clear consensus exists among the Member States as to the normal consequence of a
failure to determine the content of the foreign law applicable to a legal issue: the
law of the forum is
applied to resolve that issue. That rather practical reaction cannot be criticised in point of principle,
given the frequency with which Community conflict of law rules include the law of the forum within
the circle of potentially applicable laws.
At the same time, it is legitimate to ask (and the question is indeed often posed) whether a
claim
based on foreign law should not simply be rejected if the claimant is unable to meet his onus 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 avoiding
the application of foreign law, just as much as would a principle of the conflict of laws.
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The only effective manner in which this dilemma can be resolved it that of avoidance: it should be
practically possible, amongst the Member States of the European Union, to ensure the possibility of
establishing every aspect of the law of each Member State before the courts of any of the Member
States. The
essential recommendation of the present Study in this respect is to
improve access to
intra-EU law, to a point where the dilemma of how to proceed in case of a failure to prove the
content of the law of another Member State will no longer arise.
There remains the question of whether a uniform rule in this respect should be imposed upon
Member States in the short term, while the means of access to their laws in other Member States are
being improved. Such imposition does not seem advisable. The interests of justice demand that
judges retain the power to have recourse to other solutions than an application of the law of the
forum in individual cases where such application would lead to an inequitable result.
5. Correction by superior instances
For the purposes of discussion, it is useful to distinguish two situations: first, where a judge has
applied the law of the forum instead of the applicable foreign law (or some other foreign law instead
of the applicable foreign law); secondly, where a judge has incorrectly established the content of the
applicable foreign law. The present context does not require discussion of a third variation, namely
where a judge has applied foreign law instead of the correctly applicable law of the forum.
5.1. Application of the law of the forum instead of the applicable foreign law
A failure to apply a correctly applicable law may have one of three causes, which are not always
clearly distinguished: a) the judge applied the law of the forum because he didn’t consider that
option, which was not discussed during the proceedings; b) the judge applied the law of the forum
because he incorrectly interpreted the relevant principle of the conflict of laws; c) the judge applied
the law of the forum because he was unable to establish the content of the applicable foreign law.
5.1.1. Foreign law not pleaded
There would be little point is discussing the largely hypothetical question of whether parties should
be somehow obliged to plead issues of foreign law in all cases in which they arise. At least in so far as
civil litigation is adversarial in nature, judges are normally not in a position to be able to determine
that cases involved foreign aspects which parties did not wish to raise. The issue is actually dealt with
in jurisprudence, although it has not yet been addressed by Community conflict of law rules, when a
party wishes to rely upon foreign law for the first time at the appellate level. A uniform solution to
that problem can apparently not be envisaged at the present time, even if the diversity of
approaches taken by national courts certainly reduces legal certainty.
5.1.2. Erroneous interpretation of conflict of law rules
The juridical issue here is that of the last moment at which the error of private international law can
be relied upon and in which context. The legal systems of the Member States general y agree that
this is open to parties to litigation even at the second instance of appeal, given that the error is
uniformly regarded as an error of law. Major differences exist, on the other hand, as to whether the
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appellate court can rectify the error by itself applying the correct system of foreign law to the facts
found at first instance, or must return the case to the judge of first instance for a (relatively costly
and lengthy) retrial.
5.1.3. Content of foreign law not established
In cases in which the content of foreign law could not be satisfactorily established, it is sometimes
said that the judge did not make sufficient efforts to discover the relevant foreign rules or to
encourage the parties to discover them. This is even a ground of appeal in certain legal systems. It
presupposes that there are established standards of how and how far research into foreign law is to
be conducted. These are effectively standards of proof and cannot be uniformly formulated for all
cases. They depend upon both the exact issue to be solved and the nature of the applicable foreign
law. Even within national legal orders, this is often a disputed matter of judicial policy, largely
determined by the personalities and interests of leading judges. The question must be left to the
national legal orders of the Member States, although the European Union may have an interest in
encouraging them to gradually harmonise their rules.
5.2. Incorrect application of foreign law
A majority of the Member States permit appellate courts to correct mistakes made at first instance in
respect of the content of foreign law and its application to the facts. It is interesting to note that this
possibility exists even within those legal systems which leave it to the parties to take the initiative of
raising foreign legal issues if they so desire. Among the legal systems which provide a
second level of
appeal, normally only on point of law, there is a great deal of divergence on the issue of whether
points of foreign law can qualify for review.
This matter lies near the heart of each national judicial order and any changes are likely to be
extremely difficult to introduce. It is also difficult to justify Community interference to this extent. A
supposed principle of equal treatment of foreign law and domestic law amongst Member States
might be imagined in order to ensure the equal protection of the law of each Member State for the
benefit of persons whose affairs are governed by the law of that State and for those whose affairs
are governed by the law of a different Member State. This would mean that the “foreign” character
of the applicable rules of law should not impact upon the quality of their application, which in turn
would require correction of errors of foreign law on the same bases as the correction of errors of the
forum’s own law. An alternative principle would be that of correction of errors of foreign law
according to the rules of review in force in the relevant foreign country. That would be extremely
complicated however, and it is possible that some of the means of review foreseen in individual
Member States are completely inconsistent with the judicial structures of other Member States. It is
better to leave it up to each national legal system to fix the methods and criteria of correction of
judicial errors. Differences in the treatment of judicial errors under the forum’s procedures as
compared to the procedures of a relevant foreign system are rarely so important as to practically
impact upon substantive rights. Faced with difficult questions under foreign law, national courts at all
levels should be strongly encouraged to accept the solutions proposed by the courts of the foreign
country concerned, rather than to elucidate their own solutions. It must also be accepted that laws
cannot be absolutely perfectly clear, especially in their application to unexpected types of cases,
which tend to arise more frequently abroad than at home, so that there will always be plenty of
scope to argue that errors of foreign law have been committed, no matter how carefully and
advisedly the judge proceeded.
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A reasonable conclusion is probably that judgments applying foreign law should be reviewable on the
same grounds as those which apply domestic law. Unification of the methods of review or of the
means or consequences of correction of judicial errors would not appear desirable and in any case
probably lacks any legal basis under European Law, given that errors of foreign law do not impact
upon the functioning of the Internal Market to such a degree as would justify Community
intervention.
6. Application by non-judicial authorities
Attention will be paid here to national authorities which act in a constructive manner in order to
create legal rights or a legal status. They normally act in non-litigious cases. A good example is that of
a notary who becomes involved in a client’s affairs in order to make a will or other testamentary
instrument, to liquidate a deceased estate, to execute a matrimonial property agreement or to effect
a transfer of real property.
An initially relevant question is that of whether parties should be encouraged to select a notary who
will execute documents according to the formal requirements of the law which is applicable to the
substance of the transaction or situation. Notaries are certainly free to advise parties to consult a
notary in the Member State the law of which is applicable to questions of substantive validity. If the
parties insist on proceeding with the notary initially consulted, he wil however, in most countries, be
unable to escape from his duty to perform the acts required of him. As a kind of public officer, a
notary is usually unable to refuse to act in cases where his act would be formally admissible, as such
a refusal would amount to a denial of justice.
That position gives rise to a series of further questions: Should notaries be obliged to inform clients
that their circumstances give rise to issues of conflict of law and depending upon the view taken in
the Member State by which the notary was appointed, that they can choose to ignore those issues?
Must he make his own determination of whether a foreign law is applicable? If so, how should he go
about establishing its content? These questions are conceptual y difficult, in that a notary is
simultaneously an agent of the legal system which gives him certain powers and a representative of
the persons who engage his services.
6.1. Introduction of foreign law
A common denominator among the rules governing the notaries of Member States is that notaries
are obliged to learn the rules of conflict of laws and to understand the options which those rules
leave open to their clients, so that they can properly advise their clients as to the likely consequences
of the legal y highly significant acts which the clients propose to undertake. 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 ap-
plicable 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 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
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rules of conflict of laws, so as to effectively choose the law of the forum, is effectively the same as
that of judges.
6.2. Establishment of the content of foreign law
To the extent that notaries may be required, by law or by their professional standards, to at least
consider the contents of foreign law, there is no doubt that they could benefit enormously from the
facilities offered by the
European Judicial Network. The matters which clients bring before notaries
are often very delicate and where they involve foreign elements, can often be properly and
confidentially dealt with only by legal professionals who hold the same position in the relevant
foreign country as does the local notary. Probably mainly for that reason, notaries around the globe
have already established interest and contact networks, which appear to be quite heavily utilised. It
might nevertheless be useful to establish a specifically European institution, managed by notaries
according to the principles of cooperation among EU Member States. The French CRIDON could serve
as a model in this respect.
7.
Conclusions Concerning the Legal Framework
7.1. Introduction of Foreign Law into the Proceedings
The issue of whether Community conflict of law rules should be applied
ex officio, regardless of the
wishes of the parties, is much
less acute than it would appear at first sight, given that the relevant
Community instruments mostly permit the parties to choose the law of the forum as the applicable
law.
A Community instrument could specify that parties have the
right to make a choice of applicable law
during the course of proceedings. Those instruments which currently refer to the issue indicate that
it is to be determined according to the law of the forum. This
renvoi creates a risk of uncertainty and
inconsistency of choice of applicable law.
Community conflict of law rules are less liberal in certain cases, notably where one of the parties is
considered “weaker” than the other, or where mandatory rules of a Third State seek to apply. In
these limited cases, if the possible relevance of Community conflict of law rules appears from the
facts pleaded by the parties, then the principle of the “effet utile” of Community law should require
judges to at least
draw the attention of the parties to those rules
ex officio.
7.2. Establishment of the Content of Applicable Foreign law
The
freedom of the parties to assist the judge in establishing the content of foreign law, as is the
case with the content of domestic law, should be maintained. The right of the judge to require the
parties to give assistance does not need to be the subject of uniform regulation. The principle of free
choice of methods of proof should also be retained.
The
costs of the application of foreign law could be
borne by the Member States, so as not to
discourage parties from raising issues of foreign law where they are applicable. For other factual
measures to facilitate access to foreign law, see below (2.).
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7.3. Consequences of impossibility of establishment of foreign law
The logical consequence of failure to establish the content of the applicable foreign law is the
application of the law of the forum. It should nevertheless be open to individual Member States to
provide for
alternative consequences in particular cases, for example where the validity of a formal
document executed according to foreign law has not been proven. Judges could also retain the
power to devise alternative solutions, such as striking out a claim, in individual cases in which the
application of the law of the forum would lead to injustice.
7.4. Correction by superior instances
One option to increase control on foreign law would imply that judgments applying foreign law be
reviewable on the same grounds as those which apply domestic law. As this measure would go very
far, already an increased willingness (or duty) to intervene on the application of foreign law if it is
unreasonable might be an option.
7.5. Application by non-judicial authorities
Ideally, notaries in each Member State should
ex officio draw to the attention of their clients any
potential conflict between the notarisation requirements of the forum and those of the Member
State the law of which is applicable to the client’s situation or transaction and then proceed to carry
out their notarial duties in conformity with that applicable law. This manner of proceeding should not
impact upon the costs to be borne by the clients.
To the degree that the laws of the Member States concerning the functions of notaries can be
rendered less divergent over time, it will become gradually less onerous for notaries to conform to
the previous recommendation.
8.
Recommendation on Facilitating Access to Foreign Law
A large number of respondents in the empirical study proposed the creation of a generally
accessible
electronic database of foreign law, with information in English or translated into all official
languages. This proposal seems worthy to be pursued further. 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 of the existing possibilities. In
fact, it would appear reasonable to
improve the quality of official information on the internet and to
improve systems of national legal information by adding information on foreign law (libraries,
databases). In a second step, these could be combined into 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 effectively.
Propositions for
improved 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. An option would consist
in
establishing a European Centre of Expertise. It would be highly desirable, in order to ensure the
quality of the opinions given by it, that the Centre employ jurists who have been trained in the
Member States upon the laws of which they advise. Ideally, users would not have to bear the costs of
use of these mechanisms.
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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
networks (judicial and notarial) and make them better known among the legal professions; others
proposed that 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. In fact, it appears a valid option to effectively reinforce the
European Judicial Network. There is certainly benefit in permitting a judge of one Member State to
consult a judge of another Member State, particularly on a subject in which the latter, but not
necessarily the former is specialised. Responsibility for deciding the issue must nevertheless remain
with the requesting judge, who is free to accept or reject the advice which the requested judge
provides.
The last proposal that was mentioned by several respondent concerns
education and training in
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.
Gian Paulo Romano
Martin Sychold
Lukas Heckendorn Urscheler
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