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RESEARCH PRODUCT

The Application of Foreign Law by Judicial and Non-Judicial Authorities: Any News?

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The treatment of foreign law by judicial and non-judicial authorities constitutes “a crucial issue” for the proper functioning of any Private International Law (PIL) system. Nevertheless, and despite its relevance, international harmonization on this issue is scarce and old –usually, previous to 1980-, and it combines both a limited scope and little application. Thus, the nature granted to foreign law before national authorities, the way to ascertain its content or to consider when it has been sufficiently proved usually vary significantly among jurisdictions and negatively affect the potential application of foreign law. This situation is widespread. And it is even noticeable in a legally integrated area such as the EU, where a growing set of common choice-of-law rules exists but no common rules governing the application of foreign law by EU judicial authorities have been developed. In recent times the absence of international harmonized rules has been accompanied by the emergence of new issues in relation to the application of foreign law. The position maintained in some States in the USA against the application of foreign laws by national authorities or the growing relevance of this issue in the field of International Arbitration are two of them.