Suchergebnisse

This book chapter proposes a typology of the different ways that domestic courts may use foreign law — as binding law, as a nonbinding norm, as an interpretive aid, as a basis for functional comparison, and as factual information — and it explores the implications of these different uses for judicial internalization of external norms. The chapter argues that domestic courts play a key role in transnational processes of norm internalization and diffusion, and it draws on political science scholarship to develop hypotheses about how different uses of foreign law by domestic courts affect these processes.

It is in response to the need for certainty and consistency that systems of regulation and law are created to govern the conduct of people of a community, society, nation or state. With increases in the ease of cross-border movement and activity, as well as global communication, parties and courts are more frequently being exposed to systems of regulation and law that are foreign to them. This, in turn, creates uncertainty regarding not only the ability of national courts to correctly apply foreign law, but also the quality of evidence relating to the content of foreign law. Relevant studies conducted for the Hague Conference on Private International Law and the European Commission have classified states according to their treatment and application of foreign law. The author of this article focuses instead on the most common methods used to ascertain foreign law, and using a much larger sample of states, argues that there is little value in classifying different approaches.