Treatment of Foreign Law in Israel
Treatment of Foreign Law: Dynamics towards Convergence?” ed. by Yuko Nishitani, Springer, (2016) Forthcoming
18 Pages Posted: 19 Apr 2016
Date Written: April 1, 2016
The application of foreign law by a national court, for whatever reason, is a challenging endeavor. The court is required to decide legal issues as if it were a court of the foreign state. Yet, a national judge can neither be expected nor required to be familiar with the foreign legal system as he is with his own. If the application of foreign law is not to be invariably frustrated, then such application should only be conditioned upon the judge acquiring reasonable understanding of the solution which that foreign system might have for the problem at hand.
The paper analyzes critically the rules prevailing in Israel at present, concluding that the present situation, concerning the ascertainment and proof of foreign law, is confusing and expensive, and hence burdensome to both the parties and the courts. It proposes a reform of the Israeli law rules, pointing out however that the only way to cope well with the ever growing need to apply foreign law requires a special kind of legal education. Top students should be encouraged to learn foreign languages and specialize in at least one major foreign legal system in that foreign country. Comparative law courses, in which the differences and similarities between the approaches of legal systems to the solution of similar problems are critically analysed, should play an important role in legal education. In each country, at least one university library should hold foreign legal texts – statutes, commentaries and textbooks, in the respective foreign languages. Even if those are made available on electronic databases in the future, access to these databases will still require an investment of substantial resources. There can be no shortcuts or substitution to expertise, earned through intensive hard work, in short a challenge for long distance runners.
Keywords: proof of foreign law, Israeli law, comparative law, international civil procedure, international litigation, legal education, private international law
JEL Classification: K33, K40, K41
Suggested Citation: Suggested Citation