Foreign Law in Civil Litigation A Comparative

This work provides an analysis of how foreign law should be pleaded and dealt with in the litigation process of another country. What weight should the trial court give to the relevant foreign law, and how should it decide what the foreign law actually is? The way foreign law is procedurallytreated in court indicates to a certain extent the degree of tolerance of a legal system towards foreign ideas. The book compares how these issues are handled in different national systems, with particular focus upon civil litigation rules in the US, UK, France, Germany, the Netherlands, andBelgium.

Sofie Geeroms is Staff Legal Adviser at the Swiss Institute of Comparative Law. She is a qualified Belgian lawyer and was recently awarded her doctorate at the University of Leuven.

General Editor's Preface

v

Acknowledgements

ix

Abbreviations

xvii

Table of Cases

xxiii

Table of Legislation

xxxiii

General Introduction

Foreign Law in Civil Litigation

1

(5)

A Functional Analysis

6

(5)

A Comparative Analysis

11

(6)

Objectives

17

(5)

Work Plan

22

(3)

Problems of Terminology

25

Part I Foreign Law at the Trial Level

Introduction

The Decision-Making Process in Civil Litigation with Comparative Perspectives

Introduction

1

(3)

Common Law Decision-making Process: The Fact-finder and the Law-finder Distinguished

4

(30)

Questions of Fact

7

(19)

Questions of Law

26

(8)

Civil Law Decision-making Process: The Law-finder and the Fact-finder Unified in One Person

34

(31)

Questions of Fact

35

(9)

Questions of Law

44

(11)

Some Restraints: Guarantees for the Parties

55

(10)

Conclusion

65

The Introduction and Ascertainment of Foreign Law

The Introduction of Foreign Law

Introduction

1

(3)

The Application of Foreign Law

4

(77)

Pleading or Notice of Foreign Law

81

(42)

Conclusion

123

(7)

The Ascertainment of Foreign Law

Introduction

130

(2)

Who Ascertains the Foreign Law?

132

(100)

Means of Ascertainment

232

(124)

The Role of the Trial Judge Regarding Information on Foreign Law

356

(78)

Failure to Ascertain the Foreign Law

434

(56)

Conclusion: Recapitulation

490

Principle and Policy at the Trial Level

Introduction

1

(7)

The Nature of the Judicial Process and of the Choice-of-Law Theories

Introduction

8

(3)

The Nature of the Judicial Process

11

(29)

Choice-of-Law Theories

40

(21)

Conclusion

61

(5)

Pragmatic and Economic Considerations

66

(10)

Pragmatic Considerations

68

(4)

Economic Considerations

72

(4)

Conclusion

76

Part II: Foreign Law at the Review Level

Introduction

Final Review: Cassation, Revision, and Appeal Compared

Introduction

1

(4)

Cassation

The French Cour de Cassation

5

(11)

The Belgian Hof van Cassatie

16

(7)

The Dutch Hoge Raad

23

(8)

Revision: The German Bundesgerichtshof

31

(9)

Appeal

The English Appellate Courts

40

(15)

The United States Appellate Courts

55

(12)

Conclusion

67

The Power to Review Foreign Law

Introduction

1

(2)

Judicial Refusal

France

3

(32)

Judicial Recognition

Belgium

35

(33)

England

68

(20)

The United States

88

(19)

Legislative Refusal

107

(59)

Germany

108

(39)

The Netherlands

147

(19)

Conclusion

166

Principle and Policy at the Review Level

Introduction

1

(2)

The Trial Level's Fact and Law Approaches to Foreign Law

Introduction

3

(2)

Common Law Systems

5

(9)

Civil Law Systems

14

(19)

Conclusion

33

(2)

Functions and Functioning of the Courts of Last Resort

Introduction

35

(2)

Functions of the Courts of Last Resort

37

(18)

Functioning of the Courts of Last Resort

55

(14)

Conclusion

69

(9)

Conclusion

78

Conclusion: Towards a Positive Attitude to Foreign Law

An Ideal Procedural Treatment of Foreign Law

1

(3)

Does the Presence of Foreign Law in Court Justify a Different Treatment from Domestic Law?

4

(391)

Bibliography

395

(14)

Index

409

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Foreign Law in Civil Litigation A Comparative and Functional Analysis

Summary

Author Biography

Table of Contents

Supplemental Materials