Hungary: Inconsistencies Between Theory and Practice in the Treatment of Foreign Law in Hungary

Abstract

This article describes the present situation of the application and ascertainment of foreign law by analysing the Law Decree No. 13 of 1979 on Private International Law and its judicial practice in Hungary. In this Law Decree, which is the first legal instrument in the history of the Hungarian PIL, a more than hundred year old tradition was codified that foreign law should be treated as law, so according to the principle of “iura novit curia”, the judge has to apply the foreign law ex officio. This approach is recognised by the Hungarian jurisprudence and the academic literature as well, but in most cases the problems stem from the fact that the tools and methods offered by the Hungarian PIL Code (e.g. experts), multilateral and bilateral treaties (e.g. London Convention) are not applied in all cases when they should and could be used. In addition, the article gives a short overview of interpretation of foreign law and failure to establish foreign law. Finally, based on a detailed analysis it concludes that there is a common need to improve the access of foreign law, and it is not just a technical issue, because the proper application of foreign law as a complex judicial task depends on the education and training of the judges and notaries as well.