Foreign Law in Civil Litigation A Comparative and Functional Analysis

by Geeroms, Sofie

• ISBN13: 9780199264766
• ISBN10: 0199264767
• Format: Hardcover
• Copyright: 2004-04-08
• Publisher: Oxford University Press

Summary

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.

Author Biography

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.

Table of Contents

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