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Published online by Cambridge University Press: 17 January 2008
This Article aims to examine the implementation of the European Convention on Information on Foreign Law, more commonly known as the London Convention, and assess its impact on the application of foreign law under the rules of private international law which prevail in the signatory States. Basically, the Convention provides a system to assist national courts in determining the application of a foreign law in a case involving the rules of private international law. This analysis is divided into three sections.
1. For earlier and more limited analysis, see D'Oliveira, “De Europese overeenkomstnopens het verstrekken van inlichting over buitenlands recht (1968) en lsquo;Art.48 Rv’”, in Bervoets, Th.M. et al. (Eds), Hoe vreemd is buitenlands recht?—Opstellen over de positie van buitenlands recht in het burgerlijk proces, (1979) pp.87–119Google Scholar; Otto, G., “Die gerichtliche praxis und ihre Erfahrungen mil dem europäischen Übereinkommen” v. 7.6.1968 betr. Auskünfte über ausländisches Recht, (1985). p.209.Google Scholar
2. See the recent article by Lando, “Lex Fori in Foro Proprio” (1995) 2 Maastricht Journal 359–375 in which the author considers the obstacles placed by the method of proof of foreign law in the way of its adequate ascertainment and application. For further reading on the problems and issues pertaining to proof of foreign law see Zajtay, “The Application of Foreign Law: Science and Fictions” (1973) C.I.L.J. S.Africa 245–258; Varady, , “Foreign Law before Domestic Authorities, Realities and Gestures”, in Festschrift für Imre Zajtay (1982), pp.459–508Google Scholar; Jessurun D'Oliveira, H. U., “Foreign Law in Summary Proceedings (kort geding)”, in Sumampouw, et al. (Eds), Law and Reality, Liber amicorum, C. C.A. Voskuil (1992) pp.119–135Google Scholar; Spranking and Lanyi, “Pleading and Proof of Foreign Law in American Courts” (1995) Stan J.I.L. 3–98. Tueller, , “Reaching and Applying Foreign Law in West Germany: A Systematic Study”, idem, pp.99–150Google Scholar and Merryman, , “Foreign Law as a Problem”, idem, pp.151–173; Sass, “Foreign Law in Federal Courts” (1981) 29 A.J.Comp.L. 97–118: Shava, “Proof of Foreign Law in Israel: A Comparative Study” (1984) 16 Int.L. and Pol. 211–233: Fentiman, “Foreign Law in English Courts” (1992) 108 L.Q.R. 142–156.Google Scholar
3. For an excellent and more comprehensive review of the two main approaches and a comparative analysis of their application in various countries see Hartley, “Pleading and Proof of Foreign Law: The Major European Systems Compared” (1996) 45 I.C.Q. 271–292.
4. Referred to by idem, p.285 as the “default rule”. See also e.g. Leslie, “Domestic Law Rules?” (1990) J.L.S.S. 475.
5. Hartley, , idem, pp.284–285.Google Scholar
6. See idem re the English appellate courts' jurisdiction. The position does not appear to be identical in Scotland. In cases initiated in the Court of Session the House of Lords may re-examine findings of fact and place a different interpretation on the evidence on foreign law. In cases initiated in the Sheriff Court, appeals to the House of Lords are permitted only on matters of law and it is unclear whether foreign law is to be treated as a matter of fact or law.
7. See idem, pp.285–289. It is expected that the Scottish courts would follow these exceptions to the default rule. See e.g. Leslie, op. cit. supra n.4 regarding the problem of status and the mandatory application of foreign law.
8. And also to varying degrees in most other continental civil law systems e.g. France and Germany. See Hartley, ibid and also Lando, op. cit. supra n.2, at p.367. See also, infra, Section D3 regarding the Dutch statistics.
9. See Lando, , idem, pp.372–374. where he discusses the realists' and idealists' view on the application of the ex officio rule and its difficulties and limitations, particularly under contract law.Google Scholar
10. See further infra Section D and the table in the Appendix. Unfortunately, no statistics were available from the Dutch authorities as to the number of requests transmitted.
11. An American survey by Professor Max Reinstein revealed that in 40 cases where foreign law was pleaded, it was misapplied by the American court in 32 instances: see Zweigert (1973) 44 Colorado L.Rev. 283.298. However, it could be argued that this would not necessarily be improved under a system which applies foreign law ex officio. See the comments generally of both Hartley and Lando. op. cit. supra nn.3 and 2 respectively.
12. Lando, , idem, p.371.Google Scholar
13. Lando considers, e.g. idem, pp.371 and 373, that courts will resort to covert techniques to avoid application of foreign law, and this may also lead to over-zealous application of public policy or “ordre public” exceptions. See also Hartley, op. cit. supra n.3 generally.
14. Another issue which was not clarified by the responses to our information requests was how the courts which adopt the jus curia novatlex officio approach actually deal with the information received and, further, what role the parties have in formulating any request for information emanating ex officio. These are matters which may be considered in follow-up research.
15. The European Convention on Information on Foreign Law, E.T.S. No.62. UK-E.T.S. No. 117 (1969) (Cmnd.4229). For greater detail on the individual provisions of the Convention, see Council of Europe. Explanatory Report on the Convention on Information on Foreign Law (1978).
16. The Convention entered into force the following year in accordance with the provisions of Art.17, para.2: “This Convention shall enter into force three months after the date of the deposit of the third instrument of ratification or acceptance.”
17. Art.1, para.1.
18. See Appendix for the chart of signatures and ratifications produced by the Council of Europe. Accession of a State which is not a member of the Council of Europe is provided for under Art.18.
19. Additional Protocol to the European Convention on Information on Foreign Law, Cmnd.8431, T.S. No.88 (1981), E.T.S. No.97, signed in Strasbourg, 15 Mar. 1978. (See Council of Europe, op. cit. supra n.15.) This entered into force in the UK on 3 Dec. 1981. Costa Rica, Iceland, Liechtenstein, Malta and Turkey have not signed the Protocol.
20. Protocol, Chap.1.
21. Protocol, Art.3 of Chap.2. Art.3 enables authorities and persons with the task of providing legal aid and advice to make requests for information in order to facilitate their work. It was considered necessary to limit requests to authorities or persons acting with in an official legal aid or advice system on behalf of “persons in an economically weak position”. Cyprus, the Netherlands, Switzerland and the UK have declared themselves not bound by Chap.2.
22. See infra Section D.5 and table in the Appendix.
23. Art.1, para.1.
24. Art.1, para.2. Further, para.3 provides that the addresses of the agency or agencies should be communicated to the Secretary General of the Council of Europe.
25. Art.3, para.1, which also provides that the request may be made only when proceedings have been instituted. (Both these aspects have been extended by the Protocol, Art.2 of Chap.1 of which provides for requests from any judicial authority having jurisdiction to prosecute or execute sentences, including where the institution of proceedings is envisaged. Art.3 of Chap.2 provides for requests from any person acting under an official legal aid/advice system on behalf of an economically weak person, and also includes cases where the institution of proceedings is envisaged.) Art.3, para.2 provides that a contracting State may indicate by declaration which of its authorities it will deem a judicial authority if no transmitting agency is set up or appointed. Para.3 provides that two or more contracting States may agree to extend the ambit of the Convention to authorities other than judicial authorities. See e.g. the Protocol.
26. Per Art.4. para.1. Art.4, para.2 provides that the request must also furnish all the necessary facts to allow an exact and precise reply. By Art.4, para.3 the request may include questions in fields other than in Art.1, para.1, where they relate to the principal questions specified in the request.
27. Art.5. In the UK context it appears unlikely that a request could be made under the provisions of the Convention directly by a judicial authority. Art.3. para.2 is an enabling provision, allowing member States to designate judicial authorities and the absence of such a declaration would be unlikely to lead requested States to reject a direct request from a UK court. However, Art.5 provides for direct requests, in the absence of a transmitting agency, and the UK has designated a transmitting agency, even though no requests have to date been transmitted. See table in the Appendix.
28. Art.14, para.1. Art.14, para.2 provides that two or more contracting States may agree to derogate from this provision.
29. Art.6, para.1. Under Art.6, para.2 the request may in appropriate cases be transmitted to a private body or a qualified lawyer to draw up the reply. If this is likely to involve costs, the requesting authority should be informed as to the private body or lawyer involved and the probable costs and its consent be requested: Art.6, para.3. The costs are to be borne by the requesting State in that event under Art. 15, para.1. Art.6 does not settle either the procedure for payment under this provision or the procedure for the recovery of costs within the requesting State.
30. Art.13.
31. Art.7.
32. Art.15. See Art.6. para.3 supra.
33. Art.9.
34. Art.10.
35. Art. 11 allows the requested State to refuse if its interests are affected by the case or it considers that the reply may prejudice its sovereignty or security.
36. Art.12.
37. Art.8. Cf. the Art. 177 procedure involving the ECJ under EC law.
38. These were advised to us by the Council of Europe, which provided assistance both at the outset of the project and with further information thereafter, although it could not provide us with a full list of appropriate institutions and authorities. This may indeed be partly to blame for the lack of response from certain countries.
39. Italy, Liechtenstein, Lithuania, Slovenia and the Ukraine. We wrote again to each of these countries in Oct. 1995 but have received responses from Italy and Lithuania only.
40. Belgium, Bulgaria, Finland, Lithuania, Poland, Romania and Russia. We encountered particular difficulties in locating the appropriate contact address for these countries and this accounts partly for the delay. We have also received no response with information from Costa Rica.
41. Reproduced in the Appendix.
42. There has been no response from the only non-member State to have signed the Convention—Costa Rica—as Russia and the Ukraine are now member States of the Council of Europe. Further, Slovakia has not been included in our research as it signed the Convention in Nov. 1995, after the final stage of forwarding information requests. In any event, Slovakia has yet to ratify the Convention.
43. Of these countries, Belgium, Bulgaria, Finland. Poland, Romania and Russia were contacted for the first time in Oct. 1995. Italy, Liechtenstein, Slovenia and the Ukraine were contacted for the first time in Mar. 1995. The initial response from Costa Rica advised us to correspond with the Facultad de Derecho, Universidad de Costa Rica. We have as yet received no response to our request for information forwarded in Feb. 1996.
44. The latter date, in the case of those countries which responded to our request for updated information.
45. See further infra Section D.3.
46. Denmark and Luxembourg.
47. Austria, Hungary, Iceland, Sweden and Switzerland. Malta is also a special case in this category.
48. Although one must be wary of basing any findings on information with no statistical basis.
49. Cyprus, France, Germany, Greece, Italy, the Netherlands, Norway, Portugal, Spain. Turkey and the UK. The information was not particularly detailed in some cases, e.g. the Netherlands provided no information on numbers transmitted and the Italian response did not provide a breakdown between numbers requested and transmitted. Three countries (France, Germany and Spain) provided us with a table which showed a yearly breakdown of the statistical information.
50. As borne out by the evidence, the former are likely to involve issues of family/succession law whilst the latter tend to involve contractual disputes.
51. E.g. the former may explain the number of requests received by the Greek authorities from the German courts and the latter factor may account for the fact that Austria and the Netherlands have the most frequent contacts with the German system.
52. With the exception of the slight downturn in 1992.
53. Note also that the most common subject matter of a request is contract law.
54. From the statistics available from the national authorities which have responded, it appears that there are considerably more requests than submissions—although this is of course impossible and merely reflects the incomplete nature of the empirical data received.
55. However, D'Oliveira, for example, has discussed how, in practice, parties are encouraged to adopt the most pragmatic approach to resolution of the case, and as resort to the Convention is time-consuming, he suggests that the Convention is a “dead letter”. See H. U. Jessurun d'Oliveira, “Met Verdrag van Londen 1968”, in Schmidt/Freedberg-Schwartzburg: Het NIPR geannoteerd, 's-Gravenhage 1996, p.16. See also, e.g., District Court, Amsterdam, 31 October 1990, NIPR 1991, 222.
56. In the latter case both Germany and Austria are most involved.
57. The UK has been noted generally for its failure to implement private international law conventions. See Maher. “mplementation of Hague Conventions in Domestic Law: The United Kingdom Approach” (1995) Civil Justice Q. 21.
58. RSC Ord.39, r.3.
59. On the basis of an analogy with the power to invoke the assistance of an expert.
60. O'Malley, and Layton, . European Civil Practice (1989). p.239.Google Scholar
61. See supra n.27. Although it is unclear from the operation of the Convention whether such requests would be rejected by the receiving agency of a requested State.
62. Under the Rome Convention, Art.3.
63. Cmnd.8431, T.S. No.88 (1981), E.T.S. No.97, signed in Strasbourg, 15 Mar. 1978, Chap.1. Art.1. See e.g. Cyprus, Greece, Hungary, Portugal and the UK in the table. The Protocol has not been signed by Costa Rica, Iceland, Liechtenstein, Malta and Turkey.
64. The UK has recently passed the Private International Law (Miscellaneous Provisions) Act 1995, which makes provision in Part III for the choice of law rules in delict/tort to be based on a result-orientated lex loci delicti.
65. See e.g. Art.16(1)(b) of the Brussels Convention as added by the Accession Convention.
66. See Greece.
67. See Greece, Portugal and Spain.
68. Again this may prove fruitful for further empirical research.
69. Chap.1, Art.2(a) of the Protocol.
70. The possible importance of this provision is unwittingly confirmed by Hartley, , op. cit. supra n.3, at p.202, in comparing possible outcomes in the English and German courts: “Differences of outcome are most likely to occur, therefore, where the parties lack the resources to obtain good-quality legal advice and representation.” In ratifying the Protocol, Cyprus, the Netherlands, Switzerland and the UK declared that they are not bound by Chap.2 of the Protocol.Google Scholar
71. The receiving agency may also be appointed as transmitting agency.
72. See further regarding language difficulties infra Section D.7.
73. E.g. France, Germany, Hungary, the Netherlands, Norway and the UK. In particular, the UK information evidences the use of the procedure in Art.6. paras.2 and 3 for transmission to a private body or lawyer.
74. E.g. the information received from the French, Spanish and Turkish national authorities, as inserted in the table, does not correspond with the receiving agencies designated to the Council of Europe as follows: France—Bureau de Droit Européen at International, Ministède la Justice; Spain—Segretaria General Tecnica, Ministerio de Justicia: Turkey—the Ministry of Justice.
75. Indeed, even in the case of Portugal, the number of officials responsible for dealing with work under the Convention has been reduced in recent years.
76. Although the advice of the Scottish Office may informally be sought.
77. See supra n.28 and accompanying text.
78. E.g. France, Germany, Greece, Hungary and the Netherlands.
79. See also the limited information available from Malta.
80. See the agreements with Norway and Greece and the information from the Spanish authorities that no translation is required in cases involving Portugal. No other information on Art. 14, para.2 agreements is available regarding Portugal. However, although the Portuguese response advised that there were no language problems, it appears that only four foreign languages are involved in requests submitted: English, French, German and Italian.
81. Notably Iceland and Turkey.
82. Art.8 provides that the information provided in the reply is not binding.
83. Art.10 provides that there is a duty to reply and this should be done as rapidly as possible, per Art.12. There are exceptions to the obligation to reply under Art.11 if the State's interests are to be affected by the case or if the reply is likely to prejudice its sovereignty or security.
84. The Private International Law (Miscellaneous Provisions) Act 1995 may indicate development towards a more international approach in the UK although the debates in the House of Lords are enlightening as to the attitudes of at least certain members of the judiciary. Further Lando, op. cit. supra n.2, e.g., remains sceptical as to the accurate application of foreign law in any legal setting.