The Application of Foreign Law – Comparative Remarks on the Practical Side of Private International Law
Private International Law in Mainland China, Taiwan and Europe (Materialien zum ausländischen und internationalen Privatrecht, 52), pp. 85-97, Jürgen Basedow and Knut Benjamin Pißler, eds., Mohr Siebeck 2014
14 Pages Posted: 16 Dec 2014
Date Written: August 1, 2014
Abstract
The application of foreign law in practice is often difficult and time-consuming, for a variety of reasons. The increasing codification of private international law raises questions as to how legislators propose to cope with the consequential burdens for the administration of justice. This article provides comparative observations with a view to shedding some light on the practical difficulties that China, with its relatively recent Private International Law Act, may wish to consider. A flexible approach to the ex officio application of foreign law, and renvoi, is encouraged, as well as the use of information-sharing bodies, specialist private international law institutions and specialist judges for the determination of the content of foreign law. Moreover, improvements and greater effort in relation to the supply of foreign legal information, on the international level, can easily be made. In any event, the fallback solution in cases of difficulty – the application of the lex fori – itself is problematic from the perspective of incentivizing the application of foreign law.
Note: This contribution is published in this Research Paper Series with the permission of the rights owner, Mohr Siebeck.
Keywords: Duty to Apply Foreign Law, ex officio Application, European Convention on Information on Foreign Law, Mechanisms for Determining Foreign Law, European Judicial Network, Comparative Practical Application of Foreign Law, Renvoi
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