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Author Esplugues Mota, Carlos
Title Application of Foreign Law : n.a
Imprint München : Sellier - de Gruyter, 2011
©2011
book jacket
Descript 1 online resource (445 pages)
text txt rdacontent
computer c rdamedia
online resource cr rdacarrier
Note Intro -- Table of Contents -- List of Authors -- Preface: The Project -- List of Abbreviations -- Chapter 1 General Report on the Application of Foreign Law by Judicial and Non-Judicial Authorities in Europe (Project JLS / CJ / 2007-1 / 03) -- I. Introduction -- II. Application of Foreign law by Judicial Authorities in Europe -- 1. Introduction: the factual / legal condition of foreign law before national courts -- a. Legal nature of foreign law -- b. Factual nature of foreign law -- c. Hybrid nature of foreign law -- d. Conclusion: the lack of a valid and effective response -- 2. The introduction of foreign law in the case at stake -- a. The condition granted to choice-of-law rules and the application of foreign law -- b. The pleading of foreign law before national courts -- i) Countries endorsing the legal nature of foreign law -- ii) Countries endorsing the factual nature of foreign law -- iii) Countries endorsing the hybrid nature of foreign law -- iv) Conclusion: inconsistencies exist between the theoretical approach upheld and its practical implementation -- c. Application of foreign law by courts and the "iura novit curia" principle -- i) EU Member States endorsing the factual condition of foreign law -- ii) EU Member States endorsing the hybrid nature of foreign law -- iii) EU Member States endorsing the legal condition of foreign law -- d. The supplementary role played by the parties as regards the pleading of foreign law -- 3. The ascertainment of the content of foreign law -- a. The role played by the court and the parties as regards the ascertainment of the content of foreign law -- i) Countries Endorsing the legal nature of foreign law -- ii) Countries Endorsing the factual nature of foreign law -- iii) Countries Endorsing the hybrid nature of foreign law -- b. The means used to ascertain the content of foreign law
i) EU Member States awarding legal condition to foreign law -- ii) EU Member States awarding factual condition to foreign law -- iii) EU Member States awarding hybrid condition to foreign law -- iv) Some conclusions -- c. Existence and application of bilateral / multilateral conventions as regards foreign law -- d. Proof of the content of foreign law and legal aid -- i) EU Member States awarding legal condition to foreign law -- ii) EU Member States awarding either factual or hybrid condition to foreign law -- e. When is the content of foreign law deemed suffciently ascertained? -- 4. The application of foreign law -- a. How is foreign law applied by the judge? -- b. What happens in those cases the court considers that the content of foreign law has not been ascertained? -- c. Refusal of application of foreign law -- 5. May the application of foreign law be reviewed by the courts? -- III. The Application of Foreign Law by Non-Judicial Authorities in Europe -- 1. Introduction -- 2. The meaning of "non-judicial authorities" regarding the application of foreign law -- 3. Non-judicial authorities and the application of foreign law -- 4. The role played by the parties and non-judicial authorities regarding the application of foreign law -- 5. Consequences of the lack of ascertainment of the content of foreign law -- 6. Some conclusions -- IV. Final Remarks -- "Principles for a Future EU Regulation on the Application of Foreign Law ("The Madrid Principles") -- Chapter 2 -- Austria and Germany -- I. Application of Foreign Law by Judicial Authorities -- 1. Ex offcio ascertainment of foreign law -- a. General rule -- b. Legal reality -- c. Gapflling -- 2. Modifcations of the principle of iura novit curia -- 3. Role of the parties -- 4. Means of ascertainment used by the court -- 5. Suffcient proof
6. In case foreign law cannot be ascertained: application of the lex fori -- 7. Review of judgments rendered on the basis of foreign law -- 8. Costs -- II. Application of Foreign Law by Non-Judicial Authorities -- III. Evaluation of the Austrian / German rule -- 1. Broad acceptance of the ex offcio approach -- 2. Remaining questions -- Baltic Countries -- I. Application of Foreign Law by Judicial Authorities -- 1. General overview -- 2. Nature of foreign law -- 3. The role of the court and parties regarding the pleading and proof of foreign law -- 4. When and how foreign law is deemed proved -- 5. Grounds for rejecting the application of foreign law -- 6. Possibilities to review judgment rendered on the basis of foreign law -- 7. Conventions regarding the application of foreign law -- II. Application of Foreign Law by Non-Judicial Authorities -- Belgium -- I. Application of Foreign Law by Judicial Authorities -- 1. Nature of foreign law in Belgium -- 2. Pleading and proof of foreign law: role of the parties and the judge -- 3. Means of ascertainment of foreign law -- 4. When and how foreign law is deemed established in time? -- 5. How does a court apply foreign law? -- 6. How can gaps be flled and what happens in case of lack of ascertainment of foreign law? -- 7. When and how may the application of foreign law be rejected by the court? -- 8. Review of the judgment rendered on the basis of foreign law -- II. Application of Foreign Law by Non-Judicial authorities -- Bulgaria -- I. Introduction -- II. Legal Rules on Application of Foreign Law -- 1. Code of Private International Law -- 2. International Conventions on proof of foreign law -- III. Application of Foreign Law by Judicial Authorities -- 1. Legal nature of foreign law -- 2. The principle "iura novit curia" -- 3. Pleading and proof of foreign law -- 4. Lack of proof of foreign law
5. Costs for ascertainment of the foreign law -- 6. Appeal based on the insuffcient or incorrect application / interpretation of foreign law -- 7. Rejection of application of foreign law -- IV. Main Features of the Application of Foreign Law by Non-Judicial Authorities -- 1. Non-judicial authorities applying foreign law -- 2. Application of foreign law by non-judicial authorities -- 3. Pleading and proof of foreign law by non-judicial authorities -- V. Conclusion -- Cyprus -- I. General Overview -- II. Pleading Foreign Law -- III. Proving Foreign Law -- IV. The Role of the Trial Judge -- V. Failure to Prove Foreign Law -- VI. The Right to Review Foreign Law -- VII. Review of Foreign Law on Appeal -- VIII. Concluding Remarks -- Czech Republic and Slovak Republic -- I. Application of Foreign Law by Judicial Authorities -- 1. General introduction -- 2. Brief history of legal regulation -- 3. Fundamental principles of the current legal regulation regarding the application of foreign law -- a. Duty to apply foreign law -- b. Foreign law is treated as law -- c. The principle "iura novit curia" and the duty to ascertain the content of foreign law -- d. Application of foreign law -- e. Exceptions -- 4. Ascertaining of the content of foreign law -- 5. Application of the lex fori instead of foreign law -- 6. Review of the judgment rendered on the basis of foreign law -- II. Application of Foreign Law by Non-Judicial Authorities -- 1. General introduction -- 2. Review of the decision rendered on the basis of foreign law -- France -- I. Introduction -- II. The Application of Foreign Law by Judicial Authorities -- 1. The introduction of foreign law in the case -- a. The ubiquitous distinction of available and unavailable rights -- b. The mandatory character of the choice of law rule when unavailable rights are involved
c. The optional application of the choice of law rule when available rights are involved -- 2. The ascertainment of foreign law -- a. The burden of proof -- b. The available modes of proof -- c. The interpretation of foreign sources -- d. Failure to establish foreign law -- 3. The exclusion of foreign law on the ground of public policy -- a. The French doctrine of "ordre public international" -- b. The activation of the public policy mechanism -- 4. Wrongful application of foreign law -- a. The theory of equivalence -- b. The grounds of the review of appellate decisions by the Cour de cassation -- III. The Application of Foreign Law by Non-Judicial Authorities -- 1. The introduction of foreign law in the case -- 2. The ascertainment of foreign law -- 3. The exclusion of foreign law -- Greece -- I. Introduction -- II. Historical Background: The Treatment of Foreign Law Under the Code of Civil Procedure of 1834 -- III. Legal Nature of Foreign Law -- IV. The Judicial Treatment of Foreign Law -- V. Proof of Foreign Law -- VI. The Consequences of the Failure to Prove Foreign Law -- VII. Judicial Control -- VIII. Public Policy -- Hungary -- I. Application of Foreign Law by Judicial Authorities -- 1. General overview -- 2. Legal nature of foreign law in Hungary -- 3. The role played by the judge and by the parties as regards proof of foreign law and the ascertainment of the content of foreign law -- 4. When and how is foreign law deemed proved? -- 5. How is foreign law applied by the court and how are gaps flled? -- 6. When and how may the application of foreign law be rejected by the court? -- 7. Possibilities of reviewing the judgment rendered on the basis of foreign law by upper courts -- 8. Is there any bilateral / multilateral convention as regards the proof of foreign law applicable? How do they work in practice?
II. Application of Foreign Law by Non-Judicial Authorities
During the last decade Europe has undertaken an active and broad process of harmonisation of choice-of-law rules within the EU. However, this drastic movement towards a harmonised system has so far left aside a highly relevant issue: the application by judicial and non-judicial authorities of the foreign law. In full contrast to the little attention so far paid to it in the EU, this issue is said to be the crux of the conflict of laws. It violates legal certainty and contradicts the objective of ensuring full access to justice to all European citizens within the EU. This book provides a comparative study of the existing situation in all EU member states and drafts some basic principles for a future European instrument. It will become a highly useful tool for lawyers, judges, notaries, land registries, academics, prosecutors etc
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Electronic reproduction. Ann Arbor, Michigan : ProQuest Ebook Central, 2020. Available via World Wide Web. Access may be limited to ProQuest Ebook Central affiliated libraries
Link Print version: Esplugues Mota, Carlos Application of Foreign Law : n.a. München : Sellier - de Gruyter,c2011 9783866531550
Subject Neuropsychiatry.;Neurobehavioral disorders -- Etiology
Electronic books
Alt Author Iglesias Buhigues, José Luis
Palao Moreno, Guillermo
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