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Published online by Cambridge University Press: 13 February 2019
The European Convention on Information on Foreign Law came into being as a result of formal recognition by the Council of Europe that increasing movement of persons and goods across European frontiers has resulted in an interpenetration of laws and the attendant need to take foreign law into consideration. Thus, in its explanatory report on the Convention, the Council of Europe noted that it “often happens that, under a rule of conduct or laws, a court is called upon to apply a principle of foreign law, particularly in questions of contract and of family law or of the status and capacity of persons.”
1 720 U.N.T.S. 147, 9 I.L.M. 477 (1970), European Treaty Series No. 62.Google Scholar
2 Council of Europe, Explanatory Report on the European Convention on Information on Foreign Law [hereafter: Report] 5 (Strasbourg, 1968). References to articles will refer to the Report, unless specified otherwise.Google Scholar
3 Additional Protocol to the European Convention on Information on Foreign Law done at Strasbourg, March 15, 1978, European Treaty Series No. 97, 27 I.L.M. 797 (1978).Google Scholar
4 Art. 2, at note 20.Google Scholar
5 Art. 3.Google Scholar
6 Art. 18.Google Scholar
7 Ratifying countries of the Convention are: Austria, Belgium, Costa Rica, Cyprus, Denmark, France, Federal Republic of Germany, Greece, Iceland, Italy, Liechtenstein, Luxembourg, Malta, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, and the United Kingdom.Google Scholar
8 Supra note 3, footnote 8.Google Scholar
9 Art. 1, sec. 1.Google Scholar
10 Art. 1, sec. 2.Google Scholar
11 Report, note 7.Google Scholar
12 Id., note 8.Google Scholar
13 Art. 2, sec. 1.Google Scholar
14 Art 2, sec. 2.Google Scholar
15 Report, note 13.Google Scholar
16 Art. 3, sec. 2.Google Scholar
17 Art. 4(4) and Report, note 17.Google Scholar
18 Report, notes 18, 19, 20.Google Scholar
19 Art. 3, sec. 2.Google Scholar
20 Art. 4, secs. 1, 2.Google Scholar
21 Art. 1, sec. 1.Google Scholar
22 Art. 4, sec. 3.Google Scholar
23 Art. 4, sec. 4.Google Scholar
24 Art. 5.Google Scholar
25 Art. 6, sec. 1,Google Scholar
26 Art 6, sec. 2.Google Scholar
27 Art. 6, sec. 3.Google Scholar
28 Art. 7.Google Scholar
29 Report, note 30.Google Scholar
30 Id., note 31.Google Scholar
31 Id., note 32.Google Scholar
32 Art. 8.Google Scholar
33 Report, note 34.Google Scholar
34 Art. 9.Google Scholar
35 Note: the Explanatory Report on the Convention, note 37 appears to raise the question of civil liability for inaccurate responses should they be drafted by a private body or lawyer. It notes that in instances in which replies are drawn privately, “… the receiving agency is not required to check the substance of the reply; consequently, any responsibility there may be falls not to the State but on the person or body drawing up the reply.”Google Scholar
36 This formula is based on arts. 4 and 11 of the Hague Convention of 1 March 1954 on Civil Proceedings. Note also that the requested state is not required to furnish a reply in other instances also, e.g., if the requesting authority does not agree to private costs (art. 6, para. 3) or if additional information is not furnished (art. 13).Google Scholar
37 Report, note 38.Google Scholar
38 Art. 12.Google Scholar
39 Art. 13.Google Scholar
40 Art. 14.Google Scholar
41 Art. 15. Note, however, that this article does not settle the procedure for payment of the honorarium to a private receiving agency or lawyer. It also does not settle how the requesting state is to recover its costs but this was deemed to be a matter for the internal law of each country (see Report, note 49).Google Scholar
42 Art. 16.Google Scholar
43 Report, note 51.Google Scholar
44 Art. 19.Google Scholar
45 Art. 20.Google Scholar
46 Art. 21.Google Scholar
47 Consultative Assembly of the Council of Europe 18th Session. Motion for a Recommendation on the accession by non-member countries to Council of Europe Conventions. Document 2185 of January 26, 1967.Google Scholar
48 Art. 18.Google Scholar
49 Council of Europe, Legal Affairs, Chart Showing Signatures and Ratifications of Council of Europe Conventions and Agreements, January 15, 1979.Google Scholar
50 Law 5882 of 1/12/76 authorizes Costa Rica's adherence to the European Convention on Information on Foreign Law, signed in London on 6/7/68.Google Scholar
51 Promulgated 4 October 1971, Bundesgesetsblatt [BGB1., official law gazette of Austria] No. 417/1971. However, in Austria the use of the Convention is relatively infrequent; 15 requests having been sent to date and only one has been received as of April 25, 1979. This is seen as a result of traditional participation by the Austrian Ministry of Justice in Austrian conflicts cases coupled with the fact that the Convention is relatively new and unfamiliar to legal practitioners. In addition, Austria has concluded some bilateral agreement on legal assistance, primarily with Eastern European countries, and frequently informal working arrangements are also reached. Furthermore, as in the case of the United States where formal government co-operation has not been instituted, the Austrian ministry will retain a private law firm to ascertain the law in question if the parties want to bear the costs. See: Report of Dr. Edith Palmer, European Convention on Information on Foreign Law (Austria), European Law Division, Library of Congress, May 1979.Google Scholar
52 See Instruction No. 311 of November 6, 1970, on Requests for Information on Foreign Law, translated into English from Ministerialtidende, by Dr. Finn Henriksen, European Law Division, Library of Congress, May 1979.Google Scholar
53 Kung. Maj :ts cirkular till statsmyndigheterna om tillampningen av den europeiska konventionen om innehallet i utlansk ratt, 1971 Svensk Forfattningssamling [official gazette of Sweden] 150.Google Scholar
54. Anagastikos Nomos [Emergency Law] No. 1712 of April 12/24, 1939, Peri Hellinikou Institoutou Diethnous kai Allodapou Dikaiou [Hellenic Institute of International and Foreign Law]. During the German occupation, this Law was abolished, but it was put back into force by Law No. 188 of December 12//16, 1946. 6 Diarkes Kodix Nomothesias [Continuing Code of Legislation] 95(a).Google Scholar
55 Staatsblad [Stb., official law gazette of the Netherlands] 371; decree of January 18, 1977, Stb. 26; and Staatscourant 1977, No. 16.Google Scholar
56 Law of June 30, 1976, Stb. 372.Google Scholar
57 Gesetz zur Ansführung des europäischen Übereinkommens vom 7. Juni 1968 betreffend Auskünfte über ausländisches Recht vom 5. Juli 1974, BGB1. I, p. 1433. English translation by Dr. Edith Palmer available from the European Law Division, Library of Congress, Washington, D.C. 20540. An informative report by Dr. Palmer on the Convention's Implementation in the Federal Republic of Germany is also available from the European Law Division of the Library of Congress.Google Scholar
58 United States-Western European trade for 1978 is reported to have reached the following dollar amounts: U.S. exports to Western Europe, 39,936.3 million; U.S. imports from Western Europe, 36,484.5 million. Source: U.S. Bureau of the Census, Highlights of U.S. Export and Import Trade (Report FT 990) December 1978. (Communist countries other than Yugoslavia have been excluded in the figures provided.)Google Scholar