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Belgium: Foreign Law in Belgian Courts – From Theory to Practice

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Treatment of Foreign Law - Dynamics towards Convergence?

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 26))

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Abstract

The present contribution attempts to critically describe the status of foreign law in Belgian courts. Because this status is intrinsically linked to that of conflict of laws rules, the position of the latter is also taken into consideration. An attempt is made to go beyond the mere description of principles to explain how the rules are applied in practice by courts and practitioners. The main lesson to be learned from this overview is that the status of foreign law in Belgian courts is subject to contradictory policies: on the one hand, courts and the legislator have adopted a highly ambitious policy whereby the position of foreign law is aligned with that of local law, with the consequence that it falls upon courts to determine the content of foreign law and that courts should strive to read and construe foreign law as it would be applied by foreign courts. On the other hand, Belgium has failed to adopt any mechanism to assist courts coping with this ambitious principle. This great divide between theory and practice casts a long shadow over the viability of the whole system.

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Notes

  1. 1.

    See among other, the following contributions: M. Traest, “Belgium”, in Application of Foreign Law, C. Esplugues, J.-L. Iglesias and G. Palao (eds.), Sellier, 2011, pp. 129–143 (hereinafter ‘Traest’); H. Storme, “Vreemd recht voor Belgische rechter”, Nieuw Juridisch Weekblad, 2005, at pp. 1154–1166 (hereinafter Storme); S. Geeroms, Foreign law in Civil litigation. A comparative and functional analysis, OUP, 2004 (hereinafter Geeroms); M. Traest & V. Vanovermeire, “Over vreemd nationaal recht voor de nationale rechter en de Unierechter”, in Liber spei et amicitiae Ivan Verougstraete, Larcier, 2011, 437–449; M. Traest, “Bedenkingen over de verantwoordelijkheid van de rechter bij het vaststellen van de inhoud en de toepassing van het vreemde recht”, in Verantwoordelijkheid en recht, Kluwer, 2008, 168–183 and W. Pintens, “L’établissement du contenu du droit étranger en Belgique” in Application du droit étranger par le juge national. Allemagne, France, Belgique et Suisse, C. Witz (ed.), Société de législation comparée, 2014, pp. 37–46.

  2. 2.

    Act of 16 July 2004, which entered into force on 1st of October 2004. See e.g. A. Fiorini, “The codification of private international law. The Belgian Experience”, I.C.L.Q., 205, 499–519; M. Fallon, “Le droit international privé belge dans les traces de la loi italienne dix ans après”, R.D.I.P.P., 2005, 315–338; M. Fallon, “Le droit international privé en 2004, entre ius commune, codification et droit privé européen”, in Le Code civil entre ius commune et droit privé européen, A. Wijffels (ed.), Bruylant, 2005, 225–267; S. Francq, “Das Belgische IPR – Gesetzbuch”, RabelsZ, 2006, 235 – 278 and M. Pertegás Sender, “The Belgian Code on Private International Law : a tour d’horizon”, IPRax, 2006, 53–61.

  3. 3.

    The following text is based on a questionnaire prepared by Prof. Yuko Nishitani, general reporter for the topic ‘Proof of and information about foreign law’ at the 19th International Congress of Comparative Law (Vienna, 2014).

  4. 4.

    Some authors read, however, in Article 15 of the Code of Private International Law, an implied reference to the mandatory nature of conflict of laws rules, see e.g. J. Erauw and H. Storme, Internationaal privaatrecht, Kluwer, 2009, p. 359, § 284.

  5. 5.

    This was stated by Advocate General Krings in its opinion in the seminal Babcok case (opinion published in Pasicrisie, 1981, I, at p. 167).

  6. 6.

    For more details, see H. Storme, at pp. 1156–1157, § 5.

  7. 7.

    In her groundbreaking research (Jinske Verhellen, Het Belgisch IPR-Wetboek in familiezaken. Wetgevende doelstellingen getoetst aan de praktijk, Die Keure, 2012, at pp. 100–102, § 174 – hereinafter referred to as ‘Verhellen’), Verhellen indicates that practitioners are not very keen to see foreign law applied. She adds that many practitioners present their cases without mentioning the cross-border dimension, thereby hoping that the court would apply local law. Drawing on interviews with judges, Verhellen shows that some judges take their duty seriously and raise ex officio the application of conflict of laws rules.

  8. 8.

    Supreme Court (Court of cassation), 22 October 1982, Pasicrisie, 1983, I, 254; Supreme Court (Court of cassation), 18 February 1985, Pasicrisie, 1985 I, 741. And more recently Supreme Court (Court of cassation), 4 September 1992, Pasicrisie, 1992, I, 993 (the Supreme Court quashes a decision issued by the Court of Appeal of Antwerp because the Court of Appeal had applied Dutch law without giving parties the possibility to comment on the application of this law).

  9. 9.

    Supreme Court (Court of cassation), 7 October 2004, Tijdschrift@ipr.be, 2005/2, at p. 32.

  10. 10.

    As exemplified by the ruling in the van Schijndel case: ECJ, 14 December 1995, Jeroen van Schijndel and Johannes van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten, cases C-430/93 and 431/93, Rep. 1995, I-4705.

  11. 11.

    See F. Rigaux and M. Fallon, Droit international privé, 3rd ed., Larcier, 2005, p. 265, § 6.53.

  12. 12.

    While very useful, the empirical report prepared by the Swiss Institute of Comparative Law does not offer a comprehensive study of the application of foreign law by Belgian courts and practitioners. The study is based on a very limited number of responses (by seven persons) which cannot be sufficient to draw general conclusions (see Swiss Institute of Comparative Law, The Application of Foreign Law in Civil Matters in the EU Member States and its Perspectives for the Future, Part II – Empirical Analysis (JLS/2009/JCIV/PR/005/E4), 2011, at p. 32).

  13. 13.

    The lack of precise statistical data on the application of foreign law by Belgian courts can be explained by the reasons which were mentioned in the introduction to the Empirical Analysis conducted by the Swiss Institute of Comparative Law (Swiss Institute of Comparative Law, The Application of Foreign Law in Civil Matters in the EU Member States and its Perspectives for the Future, Part II – Empirical Analysis (JLS/2009/JCIV/PR/005/E4), 2011, pp. 3–4).

  14. 14.

    J. Verhellen, at pp. 90–120. Ms Verhellen conveniently summarized her research in the following paper: J. Verhellen, “Access to foreign law in practice: easier said than done”, J. Priv. Intl. L., 2016, at pp. 281–300.

  15. 15.

    And beyond. See the convincing demonstration by S. Lalani, “Establishing the Content of Foreign Law: a Comparative Study”, MJ, 2013, 75–112 – the author shows that the ‘fact-law’ distinction is a fallacy and does not help in understanding how jurisdiction deal with foreign law.

  16. 16.

    Traest goes further and indicates that foreign law is “generally considered as ‘law’ and not as a fact” (M. Traest, at p. 129).

  17. 17.

    See e.g. L. Simont, “La Cour de cassation et la loi étrangère. Quelques réflexions”, in Imperat Lex. Liber amicorum Pierre Marchal, Larcier, 2003, 189–207, at p. 197.

  18. 18.

    According to Traest, “foreign law can probably no longer be considered ‘law’ witing the meaning of Article 608 of the Belgian CPC” (M. Traest, at p. 130).

  19. 19.

    On this basis, it has been suggested that the concept of ‘law’ of Article 608 should be read to mean ‘foreign law as it is interpreted in the country of origin’: Pierre Lecroart (clerk to Supreme Court Justice Parmentier), in Annual Report of the Court of Cassation, 2006, at p. 254.

  20. 20.

    The Supreme Court (Court of cassation) did not rule on this question in its milestone Babcock case. However, in its advisory opinion in this case Ernest Krings, who was at that time advocate general, pleaded for an ex officio application of foreign law by courts (opinion published in Pasicrisie, 1981, I, at p. 167).

  21. 21.

    See e.g. H. Storme, at pp. 1157, § 6; S. Geeroms, at pp. 55–56, § 2.37 and M. Traest, at p. 131.

  22. 22.

    See the various cases referred to by S. Geeroms, at pp. 56–57, § 2.38.

  23. 23.

    As noted by J. Verhellen, at p. 112, § 184.

  24. 24.

    Supreme Court, 9 October 1980, Pasicrisie, 1981, I, 159.

  25. 25.

    “Le contenu du droit étranger désigné par la présente loi est établi par le juge”/“De inhoud van het door deze wet aangewezen buitenlands recht wordt door de rechter vastgelegd”.

  26. 26.

    See Supreme Court, 3 December 1990, Pasicrisie, 1991, I, 329 : one should not submit “la recherche et la détermination du contenu et de la portée de la loi applicable aux règles relatives à la charge de la preuve, lesquelles ne s’appliquent qu’aux faits de la cause” – “the search and determination of the content and scope of the applicable law to the rules of evidence, which only apply to the facts of the case”).

  27. 27.

    Article 15 par. 2 provides that “Wanneer de rechter die inhoud niet kan vaststellen, kan hij een beroep doen op de hulp van de partijen”/“Lorsque le juge ne peut pas établir ce contenu, il peut requérir la collaboration des parties.”. Traest seems to read this provision as allowing courts to request the cooperation of parties without first attempting on its own to ascertain the content of foreign law – M. Traest, at pp. 132–133.

  28. 28.

    Some scholars have argued that the iura novit curia principle cannot apply when a case is governed by foreign law, as Belgian judges and magistrates cannot be required to have a knowledge of foreign legal systems (see e.g. J. Erauw, Beginselen van internationaal privaatrecht, Story scientia, 1985, at p. 107). This opinion rests upon a literal reading of the principle, which does not require that judges possess a personal knowledge of the law, but only that they undertake to find out what the law provides.

  29. 29.

    In one case, the Labour Court of Appeal of Brussels had to decide a case applying the labour laws of the Democratic Republic of Congo. In its ruling it indicated that “to its knowledge and that of the parties” [“A la connaissance de la Cour … et des parties”], there was no precedent under the law of DRC for a specific issue, implying that it itself had undertaken some efforts to discover the content of the applicable foreign law – Labor Court of Appeal of Brussels, 29 October 2003, as quoted in Supreme Court (Cour de cassation), 18 April 2005, Nieuw Juridisch Weekblad, 2005, at p. 1167.

  30. 30.

    Although it has been noted that this practice leads to a reversal in the division of labor between parties and courts when compared to what is contemplated by Article 15: J. Verhellen (ed.), Loi et pratique en droit international privé familial. Compte rendu des tables rondes printemps 2013, La Charte, 2013, at p. 25.

  31. 31.

    This is precisely what happened in a recent case decided by the Supreme Court (Supreme Court (Court of cassation) of 7 December 2012 (Rechtspraak Brussel, Antwerpen, Gent, 2013, at p. 1267): in that case, English law applied to determine whether a claim was barred by the statute of limitations. One of the parties requested a legal opinion from an English lawyer on section 5 of the 1980 Limitation Act, while the other party did not produce any information on the content of English law. The Court of appeal noted that the legal opinion was coherent and sufficiently clear. The Court explained that it was convinced by the opinion and based its ruling on the content thereof. The other party challenged this ruling before the Supreme Court, arguing that by basing its ruling solely on the legal opinion, the Court of appeal had failed to discharge its mission to ascertain the content of the relevant foreign law. The Supreme Court refused to quash this ruling, noting that the Court of Appeal had undertaken its own review of the legal opinion. According to the Supreme Court, this constituted a sufficient effort by the Court of appeal. In another case, a court of appeal noted that parties had filed an affidavit issued by a Ukrainian lawyer, commenting on the family law consequences of surrogacy agreements under Ukrainian law. The opposing party had challenged the affidavit on the ground that it had been produced upon request by one party. The court held, however, that it could be used in court, since the opposing party had been in a position to produce information on Ukrainian law but had neglected to do so (Court of Appeal of Brussels, 31 July 2013, D & R v. Belgian State).

  32. 32.

    See the information provided by J. Verhellen, at pp. 100–101, § 174 – on the basis of interviews with judges and magistrates.

  33. 33.

    See e.g. the ruling of the Court of First Instance of Neufchateau, 2 July 2008, Journal des Tribunaux, 2008, at p. 573: the court orders that the debate be reopened so that parties can produce information on the relevant US legislation pertaining to issues of parentage. See also Court of Appeal of Liège, 10 July 2008, Journal des Tribunaux, 2009, at p. 538.

  34. 34.

    See e.g. Court of Appeal of Mons, 6 November 2006, Jurisprudence de Liège, Mons et Bruxelles, 2007/20, at p. 829 (the Court finds out that Luxemburg law applies to the case. It notes that parties have not presented any argument as to the content of that law and reopens the case to make it possible for parties to comment on the content of the applicable law); Justice of Peace of Oudenaarde-Kruishoutem, 16 July 2009, Tijdschrift voor Vrederechters, 2011, at p. 109, with comments by M. Traest (the justice of peace reopens the case after having heard the parties in order to allow parties to demonstrate whether the claim should be upheld on the basis of Dutch law. The court even notes that parties should produce copies of the relevant statutory texts and provide comment on these texts).

  35. 35.

    As noted by Verhellen, it is often difficult, if not impossible, to determine on the basis of the court opinion how foreign law was ascertained. The court opinion will not include detailed information on the process whereby foreign law was ascertained – J. Verhellen, at p. 99, § 173.

  36. 36.

    On the basis of interviews she conducted with judges, Verhellen notes that judges also mainly rely on online resources to ascertain the content of foreign law : J. Verhellen, at p. 108, § 181.

  37. 37.

    See e.g. www.rechtslinks.be

  38. 38.

    See e.g. recently the ruling of the Supreme Court (Court of cassation) of 7 December 2012 (Rechtspraak Brussel, Antwerpen, Gent, 2013, at p. 1267) : it appears from the ruling that one of the parties requested a legal opinion from an English lawyer on section 5 of the 1980 Limitation Act. The opinion was submitted as a ‘witness statement’.

  39. 39.

    For more details see Nadine Watté, ‘Certificat de coutume’, in Répertoire pratique de droit belge, Additional Vol. VII, 1990, at pp. 119–124, in particular §§ 13–44.

  40. 40.

    In application of Article 1017-6° and 1022 of the Code of Civil Procedure.

  41. 41.

    See Nadine Watté, ‘Certificat de coutume’, at p. 124, § 39.

  42. 42.

    See, however, the observation by one judge in J. Verhellen (ed.), Loi et pratique en droit international privé familial..., at p. 27 – the judge notes that the network of judges set up by the Hague Conference could encourage direct communication between courts. This would, however, require that courts abandon their reluctance to use information which is not provided by the parties.

  43. 43.

    In a parallel development, one may note that the authorities in Belgium only make available limited information about Belgian law. The federal government has set up a repository of legislation, which is freely accessible (www.juridat.be). However, such repository is only available in the three official languages of the Kingdom (Dutch, French and Germany), and not in English. Further, the on line repository does not always offer a codified version of the existing legislation. The same repository also offers access to court opinions. Most opinions of the Supreme Court are published. This is not the case for opinions of lowers courts (first instance and appellate courts) : only selected opinions are published. Regional authorities also operate on line repositories offering free access to their legislations. These repositories are usually comprehensive – see e.g. for the Flemish Region the ‘Vlaamse Codex’ (http://codex.vlaanderen.be/) and for the Walloon Region the ‘Wallex’ (http://wallex.wallonie.be/).

  44. 44.

    It appears that some judges, who are frequently faced with the task of applying foreign laws, attempt to compile existing sources on relevant foreign legal systems so as to be able to rely on these private collection in later cases – see the observation to this effect by J. Verhellen (ed.), Loi et pratique en droit international privé familial..., at p. 25.

  45. 45.

    See e.g. Supreme Court, 4 November 1993, Pasicrisie, 1993, I, at p. 921 – in this case, the dispute concerned the possibility for two Belgian spouses to adopt a US citizen. The question arose which law would be applied by US courts to the adoption. The Court noted in its ruling that a note had been prepared by the Ministry of Foreign Affairs on the conflict of laws rule in force in the United States. Verhellen indicates that the library received 257 requests for information in 2011, coming from judges, notaries but also practicing attorneys (J. Verhellen, at p. 113, § 185).

  46. 46.

    For more details, see http://diplomatie.belgium.be/en/documentation/libraries/practical_information

  47. 47.

    See e.g. Court of Appeal of Brussels, 30 June 1981, Journal des Tribunaux, 1981, 723 (in that case, the Court was faced with the mission of applying the law of Sudan to decide whether the recognition of a child by a person of Sudanese nationality, could be challenged by the mother of the child. The court first noted that parties had undertaken extensive efforts to uncover the content of the law of Sudan. The court then mentioned a note communicated by the Belgian embassy in Sudan, provding some information on the content of the law of Sudan).

  48. 48.

    If only one party has provided information on foreign law and the other one failed to do so, while challenging the accuracy of the information provided by the other one, the court will in all likelihood proceed to a prima facie review of the information put forward by one party. It may also take into account the fact that the other party failed to provide information on foreign law, while it had the possibility to do so. This is what happened in a case concerning the consequences of a surrogacy agreement concluded between two Belgian spouses and a Ukrainian woman. The court of appeal noted that the parents had filed an affidavit issued by a Ukrainian lawyer, commenting on the family law consequences of surrogacy agreements under Ukrainian law. This affidavit had been challenged by the Belgian State, which opposed the parents’ claim. The court held, however, that the affidavit could be used in court, since the opposing party had been in a position to produce information on Ukrainian law but had neglected to do so (Court of Appeal of Brussels, 31 July 2013, D & R v. Belgian State).

  49. 49.

    See e.g. Commercial Court of Hasselt, 21 September 2001, Revue de droit commercial belge, 2002, p. 78 : the court relied on an outprint of a section of the US Code of Federal Regulation, which one of the parties had found online. The other party challenged the use of an internet outprint. The court found, however, that there was no good reason to doubt the authenticity of the legislation. It is interesting to note that some online repositories of national legislation operated by official authorities explicitly provide that they constitute an “official” source – see e.g. the online version of the Civil Code of Quebec available at http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/CCQ_1991/CCQ1991.html

  50. 50.

    Court of First Instance of Liège, 11 January 2008, Revue du droit des étrangers, 2009, 712.

  51. 51.

    Convention of 30 April 1981 between Belgium and Morocco on judicial assistance in civil, administrative and commercial matters and in relation to exchange of legal information, published in the Official Gazette of 10 January 1984.

  52. 52.

    See for one case where the Convention could have been applied, but was neglected by the court : CFI Brussels, 22 November 1988, Revue trimestrielle de droit familial, 1990, at p. 256.

  53. 53.

    Convention between Belgium and Hungary in relation to legal information, signed in Budapest on 5 September 1983.

  54. 54.

    Article 16 of the Convention between Belgium and Romania concerning mutual judicial assistance in civil and commercial matters signed in Bucarest on 3 October 1975. Other Conventions were also concluded with the former Yugoslavia (Convention of 24 September 1971), with the former Eastern Germany (Convention of 29 November 1982) and with the former Czechoslovakia (Convention of 15 October 1984). These Conventions are no longer in force.

  55. 55.

    In its Empirical Study, the Institute indicates that the London Convention is „never or rarely used“ : Swiss Institute of Comparative Law, The Application of Foreign Law in Civil Matters in the EU Member States and its Perspectives for the Future, Part II – Empirical Analysis (JLS/2009/JCIV/PR/005/E4), 2011, at pp. 40–41. Although this is based on a limited number of answers, the answers converge and are therefore interesting.

  56. 56.

    Swiss Institute of Comparative Law, The Application of Foreign Law in Civil Matters in the EU Member States and its Perspectives for the Future, Part II – Empirical Analysis (JLS/2009/JCIV/PR/005/E4), 2011, at p. 68.

  57. 57.

    Supreme Court (Court of cassation), 7 December 2012, Rechtspraak Brussel, Antwerpen, Gent, 2013, at p. 1267.

  58. 58.

    This is stated by J. Verhellen (ed.), Loi et pratique en droit international privé familial... at p. 25. See also J. Verhellen, at p. 113, § 185.

  59. 59.

    The excessive length of time was mentioned in the empirical study of the Swiss Institute of Comparative Law as the main reason for the lack of use of the London Convention (Swiss Institute of Comparative Law, The Application of Foreign Law in Civil Matters in the EU Member States and its Perspectives for the Future, Part II – Empirical Analysis (JLS/2009/JCIV/PR/005/E4), 2011, at p. 42). See also J. Verhellen, at p. 113, § 185.

  60. 60.

    See e.g. Article 8 of the 1968 London Convention and Article 23 of the Convention of 30 April 1981 between Belgium and Morocco on judicial assistance in civil, administrative and commercial matters and in relation to exchange of legal information.

  61. 61.

    Supreme Court, 9 October 1980, Pasicrisie, 1981, I, 159.

  62. 62.

    “Considering that articles 1645 Belgian Civil Code and 1645 French Civil Code, although formulated in identical terms and having a common origin, have cease to constitute the same statute and do not bear the same interpretation; that according to the French provision, following the interpretation it receives in France and which the judge should take into account, the professional salesman is irrebutably presumed to know any defect in the product he has delivered” (translation taken over from Geeroms, at p. 302, note 109).

  63. 63.

    Opinion of Advocate general Krings, published in Pasicrisie, 1981, I, at pp. 163–164.

  64. 64.

    “Het buitenlands recht wordt toegepast volgens de in het buitenland gevolgde interpretatie”/“Le droit étranger est appliqué selon l’interprétation reçue à l’étranger”.

  65. 65.

    Opinion of Advocate general Krings, published in Pasicrisie, 1981, I, at p. 165.

  66. 66.

    As noted by J. Verhellen, at p. 106, § 180 – see the cases listed in footnote 351.

  67. 67.

    See the various cases discussed by J. Verhellen, at pp. 104–105, § 179.

  68. 68.

    In another case, a Court of Appeal engaged in an extensive discussion of the application of one provision of Dutch labour law, in order to determine whether this provision, which made it impossible to file an appeal against a first instance ruling, was part of Dutch civil procedure or Dutch labour law – see Labor Court of Appeal of Antwerpen, 21 October 2008, Rechtskundig Weekblad, 2009–2010, at p. 541. The Court reviewed took into account the opinion of Dutch courts and Dutch scholars.

  69. 69.

    See Supreme Court (Court of cassation), 3 June 1985, Pasicrisie, 1985, I, 1241, n° 597; Supreme Court (Court of cassation), 9 December 1991, Pasicrisie, 1992, I, 271, n° 190; Supreme Court (Court of cassation), 13 May 1996, Pasiscrisie, 1996, I, 455, n° 170; Supreme Court (Court of cassation), 17 January 1994, Pasicrisie, 1994, I, 46; Supreme Court (Court of cassation, 14 February 2005, J.T.T., 2005, 621 and Supreme Court (Court of cassation), 18 April 2005, N.J.W., 2005, 1168.

  70. 70.

    See e.g. Labor Court of Brussels, 15 July 2002, Journal des Tribunaux du Travail, 2003 at p. 48 (the court makes reference to a number rulings of courts in DRC and also to scholarly comments written by DRC scholars).

  71. 71.

    This is the conclusion drawn by Verhellen on the basis of interviews conducted with judges – see J. Verhellen, at p. 107–109, § 181.

  72. 72.

    Labour Court, 15 July 2002, Journal des Tribunaux du Travail, 2003, at p. 48.

  73. 73.

    The Labor Court of Brussels has alluded to this solution in its ruling of 2002 (Labour Court, 15 July 2002, Journal des Tribunaux du Travail, 2003, at p. 48). In order to substantiate its analysis, the Court referred to the fact that the solution it adopted, could also be found in several legal systems belonging to the same „family“ as the one whose law was applicable.

  74. 74.

    See e.g. Court of Appeal of Brussels, 30 June 1981, Journal des Tribunaux, 1981, 723 (in that case, the Court was faced with the mission of applying the law of Sudan to decide whether the recognition of a child by a Sudanese national could be challenged. The court struggled to ascertain the exact content of the law of Sudan. It found that it was most likely that the law of Sudan did not make it possible for the Sudanese national to recognize the child, as the person was not married with the mother of the child. On this basis, the Court concluded that the application of the law of Sudan would violate Belgian public policy, as it made a distinction between children born in and outside marriage. Hence the court did not feel it needed to pursue its quest for Sudanese law.

  75. 75.

    “Wanneer het kennelijk onmogelijk is de inhoud van buitenlands recht tijdig vast te stellen, wordt Belgisch recht toegepast”/“Lorsqu’il est manifestement impossible d’établir le contenu du droit étranger en temps utile, il est fait application du droit belge”.

  76. 76.

    According to Traest, the mechanism provided in Art. 15 can only be resorted to if “strict proof of the manifest impossibility to ascertain the content of foreign law in time” has been produced: M. Traest, at p. 135.

  77. 77.

    This solution was, however, advocated by some scholars, see e.g. R. Vander Elst, note under Supreme Court, 9 October 1980, Journal des Tribunaux, 1981, at p. 76.

  78. 78.

    Supreme Court, 12 December 1985, Pasicrisie, 1986, I, 479.

  79. 79.

    See the analysis by Geeroms, at p. 208–209, § 2.475–2.476.

  80. 80.

    Court of First Instance of Liège, 11 January 2008, Revue du droit des étrangers, 2009, 712.

  81. 81.

    See in general, W. Pintens, “Le contrôle de l’application du droit étranger par la Cour de cassation de Belgique” in Application du droit étranger par le juge national. Allemagne, France, Belgique et Suisse, C. Witz (ed.), Société de législation comparée, 2014, pp. 135–142.

  82. 82.

    See for a detailed review, Geeroms, pp. 296–300, §§5.38 – 5.45.

  83. 83.

    See e.g. E. Krings, “Aspects de la contribution de la Cour de cassation à l’édification du droit”, 109 Journal des Tribunaux 545 (1990); L. Simont, “La Cour de cassation et la loi étrangère. Quelques réflexions”, in Liber amicorum Pierre Marchal, Larcier, 2003, (189–207), at pp. 197–198; Ph. Gerard, J.-F. van Drooghenbroeck and H. Boularbah, Pourvoi en cassation en matière civile, RPDB, Bruylant, 2012, at p. 287, par. 595. See also the position taken by Pierre Lecroart, clerk to Supreme Court Justice Parmentier, in Annual Report of the Court of Cassation, 2006, at pp. 251–254. According to M. Lecroart, “... It is logical that the Supreme Court exercises a limited control over the application of foreign law by the lower courts. One of the essential missions of the Court is indeed to ‘say the law’, which includes guaranteeing the uniformity of interpretation of the law and also filling in gaps which may appear in the law. Obviously the Court cannot assume this role in respect of the law of a foreign State, because it would otherwise breach the sovereignty of that State”. Compare with P. Wautelet, “Aux confins de la norme : quelques réflexions sur le statut du droit étranger en droit international privé belge”, in Liber amicorum Paul Martens. L’humanisme dans la résolution des conflits. Utopie ou réalité?, M. Pâques et al (eds.), Larcier, 2006, 637–649.

  84. 84.

    See e.g. M. Traest, at p. 130, footnote 8.

  85. 85.

    Supreme Court, 18 June 1993, Revue générale des assurances et responsabilités, 1994, nr. 12366, with comments by M. Fallon.

  86. 86.

    Supreme Court, 14 February 2005, Arresten Cassatie, 2005, N) 89. See also in the same line, Supreme Court, 18 April 2005, Nieuw Juridisch Weekblad, 2005, at p. 1168 and Supreme Court, 4 November 2010, Rechtskundig Weekblad, 2011–2012, at p. 824, with comments by M. Traest. This later ruling was issued en banc by the entire bench, giving the ruling additional weight. This opinion had been criticized. See e.g. J. Kirkpatrick, “Dans les moyens de cassation en matière civile, doivent seules être indiquées les dispositions légales dont la violation est invoquée”, Liber amicorum Bernard Glandsorff, Bruylant, 2008, at pp. 335–344, specially at p. 344.

  87. 87.

    See for the question whether the obligation to refer not only to the provision of foreign law, but also to the conflict of laws rules which has led to the application of foreign law, takes formalism too far and could therefore be in violation with Article 6 Eur. Convention Human Rights, the comments by M. Traest, “Over het vreemd recht en het cassatiecontrole hierop”, Rechtskundig Weekblad, 2011–2012, at pp. 827–828.

  88. 88.

    Supreme Court (Cour de cassation, 3rd Chamber), 18 March 2013, La générale des carrières et des mines/R.L., Umicore, Journal des tribunaux du travail, 2013, at p. 271; Rechtspraak Antwerpen, Gent en Brussel, 2013, at p. 1263, with comments by M. Baetens-Spetschinsky; Revue@dipr.be 2013/2, at p. 11).

  89. 89.

    It is, however, unclear whether it is still necessary to invoke the breach of the conflict of laws provision on the basis of which foreign law was applied.

  90. 90.

    For a more ambitious perspective on the role of the Supreme Court, see Storme, at pp. 1164.

  91. 91.

    Supreme Court, 23 February 1984, Pasicrisie, 1984, I, nr. 353, p. 728.

  92. 92.

    See M. Traest, at p. 130.

  93. 93.

    It has been argued that non-judicial authorities do not ‘apply’ foreign law but only ‘take it into account’ (M. Traest, at p. 140). The distinction does not seem to be convincing: when a registrar applies Article 62 of the Code of Private International Law and concludes that French law is relevant to determine whether a person may recognize a child, the registrar goes further than merely taking into account French law. It is difficult to operate a distinction between what the registrar does and what a court would do in the same situation.

  94. 94.

    Verhellen provides a vivid overview of the many instances where registrars are faced with the application of foreign law. She draws in large part from the experience of the ‘Helpdesk Private International Family Law’ to show that registrars are faced with difficulties when trying to ascertain the content of foreign law – J. Verhellen, at pp. 118–120, §§ 189–192).

  95. 95.

    See the position explained in J. Verhellen (ed.), Loi et pratique en droit international privé familial. Compte rendu des tables rondes printemps 2013, La Charte, 2013, at p. 32, § 104.

  96. 96.

    J. Verhellen, at p. 477, § 733.

  97. 97.

    See for more details, F. de Ly, L. Radicati di Brozolo & M. Friedman, “Ascertaining the contents of the applicable law in international commercial arbitration. Report of the International Arbitration Committee of the International Law Association”. Arbitration International, 2010 (26), pp. 191–220.

  98. 98.

    See N. Watté, „Introduction au droit international privé notarial“, in Les relations contractuelles internationales. Le rôle du notaire, Maklu uitgevers, 1995, at p. 43, § 61.

  99. 99.

    See notably J. Erauw, De bron van het vreemde recht vloeit overvloedig, Story-Scientia, 1984, 43 p., in particular at pp. 12–13.

  100. 100.

    See the recent examination by M. Traest, “Vloeit de bron van het vreemde recht niet te overvloedig?”, in Liber amicorum Johan Erauw, Intersentia, 2014, 207–217.

  101. 101.

    This was a project of the International Law Institute, expressed in a Resolution adopted at its session in Brussels in 1885. The Institute adopted a “Proposition pour un accord international aux fins de l’institution d’un Comité international permanent pour faciliter aux gouvernements et aux citoyens de chaque pays la connaissance des lois actuellement en vigueur”.

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    Patrick Wautelet (Professor)

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    Yuko Nishitani

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Wautelet, P. (2017). Belgium: Foreign Law in Belgian Courts – From Theory to Practice. In: Nishitani, Y. (eds) Treatment of Foreign Law - Dynamics towards Convergence?. Ius Comparatum - Global Studies in Comparative Law, vol 26. Springer, Cham. https://doi.org/10.1007/978-3-319-56574-3_2

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