The application and interpretation of foreign law in European private international law

still an open question

Abstract

The issue of the application and interpretation of foreign law stands as a general question of private international law so far left untouched by the EU Regulations adopted within the domain of judicial cooperation in civil matters. After having reviewed the various proposals for the adoption of common rules in this respect, put forward by academics and scientific institutions, the present article strives to set out a solution to the said issue, in such terms as would appear more consistent with the principles and goals underlying the growing European system of private international law. In principle, foreign law, as applicable pursuant to the conflict ol laws rules contained in EU regulations, should be applied ex officio by Member States’ courts, strictly following the interpretation which such a law receives in its own legal system. Nonetheless, exceptions ought probably to be contemplated in order to strike a fair balance between ensuring the effectiveness of EU private international law rules and protecting the procedural rights of the parties. Especially, it seems reasonable to concede that, insofar as the parties are granted freeedom to choose the applicable law, they should also be allowed to waive the application of foreign law, in order to save the time and expenses required to ascertain the content of that law and its correct interpretation. It should also reasonably be admitted to release the courts of their duty to apply foreign law in those exceptional circumstances, mostly concerning in practice non-European legal systems, where the ascertainment of the content and correct interpretation of that law would be incompatible with the courts’ duty to ensure a reasonable duration of their proceedings.