Application of Foreign Law in Matters of Conflicts of Laws

Abstract

Foreign law in private international law means the law of a State other than the State of the court seised, which may be applicable to a legal relationship with foreign elements (i.e. a relationship with links with several States). In other words: when a case has elements of a connection with more than one State (e.g. different citizenships of the parties, place of conclusion of the contract in another State, property located in another country), the court deciding the dispute must determine which law applies. That law may be: its own law (lex fori) - the law of the State where the case is heard - or the foreign law - the law of another State, indicated by the rules of private international law as applicable to the legal relationship. Foreign law governs the substance of the legal relationship (e.g. validity of the contract, its effects, contractual liability). The Romanian court must identify, know and apply it as if it were its own law (subject to public policy). It should be noted that foreign law is not optional - if the conflict rules refer to it, the court is obliged to apply it. The application of foreign law in private international law means that the court of one State applies, on the merits of the case, the law of another State, as indicated by its conflict rules. The essential characteristics of the application of foreign law are: it is mandatory - the court applies the foreign law as its own law, if the conflict rules designate it; the court is required to establish and prove the content of the foreign law; the application is made in compliance with domestic public policy (if the foreign law contravenes fundamental principles, it is set aside); it does not concern procedure - it remains governed by the law of the forum (lex fori). We conclude briefly that the application of foreign law is the use of the legal rules of another State to settle the substance of a legal relationship with foreign elements.