When conflict of law rules indicate a foreign law, it is necessary to be able to establish its content in order to complete the reasoning of private international law and provide a substantive solution to the dispute.
Before the judgement, research into the content of foreign law is the responsibility of the judge and/or the parties. Depending on the relevant legal system, it is advisable to verify who bears this burden of proof, in accordance with the applicable rules of private international law.
Means are made available to judges and other legal professionals to access the content of foreign law, but these tools warrant improvement:
- the London Convention on Information on Foreign Law of 7 June 1968 established under the aegis of the Council of Europe
Through this convention, Member States undertake to provide each other with information on the content of their civil and commercial law and on civil and commercial procedure, as well as the rules relating to judicial organisation.
This convention applies to numerous countries: Albania, Aruba, Austria, Azerbaijan, Belarus, Belgium, Bulgaria, Costa Rica, Cyprus, Czech Republic, Denmark, Estonia, Finland, mainland France and the overseas territories, Georgia, Germany, Greece, Hungary, Iceland, Italy, Jersey, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Mexico, Moldova, Norway, the Netherlands, Poland, Portugal, Romania, Russia, Serbia and Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, the United Kingdom and Ukraine.
- Investigative measures: subject to what is provided for by applicable law, the judge may order a consultation or an expert assessment.
- The parties’ support: in this case, the parties are invited to provide the foreign text in a reliable and authentic version accompanied by a translation that also (?) conveys the foreign decisions that may be applicable.
The judge must place these sources within the framework of the hierarchy of norms applicable in the foreign legal system and must supplement them if necessary (by other sources of law such as case law or doctrine?).
In France, the parties may produce a certificate of custom law to prove the content of foreign law. The certificate of custom law is in principle drawn up by a consular authority or a lawyer with excellent knowledge of the foreign law concerned. This makes it possible to establish the content of a foreign law (redundant?). The certificate generally only contains very general information and only partially enables the judge to establish the content of foreign law. When the certificate of custom law is drawn up for remuneration by a lawyer or a university professor, it is often supported by precise case-law references, but this then raises the question of the neutrality of its content.
In this case, the parties are invited to provide the foreign text in a reliable and authentic version accompanied by a translation, as well as any foreign decisions that may be applicable.
The judge must place these sources within the framework of the hierarchy of norms applicable in the foreign legal system and must supplement them if necessary (by other sources of law such as case law or doctrine).
In France, the parties may produce a certificate of custom law to prove the content of foreign law. The certificate of custom law is in principle drawn up by a consular authority or a lawyer with excellent knowledge of the foreign law concerned. This makes it possible to establish the content of a foreign law. The certificate generally only contains very general information and only partially enables the judge to establish the content of foreign law. When the certificate of custom law is drawn up for remuneration by a lawyer or a university professor, it is often supported by precise case-law references, but this then raises the question of the neutrality of its content.