CONSEQUENCES OF THE NON-ESTABLISHMENT OF THE CONTENT OF FOREIGN LAW BY NATIONAL COURTS DURING THE SETTLEMENT OF TRANSBOUNDARY PRIVATE LAW DISPUTES

Abstract

This article analyses various approaches to the consequences of not establishing the content of foreign law by national courts during the settlement of transboundary private law disputes.

The consequences of failure to establish the content of rules of foreign law largely depend on whether foreign law is considered in court as a fact or law. In practice, recognition of foreign law as a fact even led to the denial of the claim.

It has been found that the majority of states, through the codification of private international law, have adopted the position of applying the law of the court hearing the case (lex fori) in case it is impossible to determine the content of foreign law, thus avoiding a dismissal of the lawsuit. However, in the Republic of Armenia, legislative criteria for the establishment of the content of foreign law, determination the absence of foreign law norms, and the “quantity” and “quality” of measures taken by the court to establish the content of foreign law are not explicitly outlined.

As a result, in practice, Armenian courts tend to avoid applying foreign law. This situation does not entirely align with modern trends in the development of private legal relations, international cooperation among states, and may lead to an unjust outcome in a case.

In this regard, it is proposed to establish more detailed regulations in the civil procedural legislation regarding the grounds for refusing to apply foreign law in favor of national law.