Foreign Law in Belgian Courts: Ambition vs Reality

Abstract

The treatment afforded to foreign law is a classic question which has always attracted attention from scholars and practitioners. When looking at this question from a Belgian perspective, one is struck by the very ambitious position taken by courts and legislator alike: foreign law is treated as law and as such it falls upon courts to discover its content. Courts must further apply foreign law as it would be applied in the country of origin. In order to guarantee that courts grant foreign law the ambitious treatment it deserves, the Supreme Court has accepted to broaden its mission to include the verification that foreign law was duly applied. This very ambitious position is, however, undermined by the sheer lack of instrument helping courts to identify the content of foreign law. This calls for a reassessment of the position of foreign law in Belgian courts, taking into account the very limited means made available to courts and practitioners alike.

Keywords: Private international law, foreign law, court, iura novit curia

JEL Classification: K10, K40, K41