The Role of Foreign Law in the Courts’ Application of Estonian Law

Abstract

It is difficult to overestimate the importance of comparative law in the legal developments of the restored Republic of Estonia. The country’s legislative drafting and jurisprudence frequently refer to and study legal solutions adopted in other countries, with private-law practitioners having even cited the comparative method as the main approach to drafting legislation and the best-practice rules for legislative drafting adopted in 2011 directing that the experience of other countries be considered in both the proposal for drafting and the draft law itself. While the comparative approach is followed so often for legal articles and doctoral theses that foreign law has even been referred to as an everyday tool for Estonian lawyers, reference to solutions in other legal orders is a much rarer phenomenon in application of the law, whether in the case law of Estonia or in that of other countries. The article provides an overview, based on legal literature and Estonian case law, of the arguments related to the admissibility of the use of foreign law in court decisions and examines the role of foreign law in the application of Estonian legal provisions. Its discussion focuses not on decisions that refer to the case law of the European Court of Justice or European Court of Human Rights or that cite case law from other countries with regard to applying international conventions but on those situations in which courts have used references to other countries’ legal provisions, case law, or legal literature (i.e., comparative arguments) when applying national law.