Some Aspects of the Application and Ascertainment of Foreign Law in the Light of Article 6 of the ECHR

Abstract

Private international law deals with cross-border civil matters and, inter alia, determines the applicable (substantive) law. When this law turns out to be the law of a foreign state, the question of the procedural status of that law will come up. Since foreign law is not known to the court, the latter should obtain information on that law, either of its own motion or by requiring party adduced proof. Thus, the applicability of a foreign law may lead to a number of complications in civil procedure that need to be taken into account. The question arises as to what extent the requirements of the ECHR, especially of Article 6(1) thereof, may have an impact on the way foreign law is applied. Since this provision has an impact on civil procedure as such, the applicability of a foreign law may give rise to a violation of Article 6(1) as well. In this paper, these potential violations of Article 6(1) will be explored by focusing on a selected group of issues that the application and ascertainment of foreign law might entail. The relevant case law of the European Court of Human Rights (ECtHR) will be analysed and analogously applied in the context of the procedural treatment of foreign law.