Abstract
This article describes the present situation of the application and ascertainment of foreign law by analysing the Law Decree No. 13 of 1979 on Private International Law and its judicial practice in Hungary. In this Law Decree, which is the first legal instrument in the history of the Hungarian PIL, a more than hundred year old tradition was codified that foreign law should be treated as law, so according to the principle of “iura novit curia”, the judge has to apply the foreign law ex officio. This approach is recognised by the Hungarian jurisprudence and the academic literature as well, but in most cases the problems stem from the fact that the tools and methods offered by the Hungarian PIL Code (e.g. experts), multilateral and bilateral treaties (e.g. London Convention) are not applied in all cases when they should and could be used. In addition, the article gives a short overview of interpretation of foreign law and failure to establish foreign law. Finally, based on a detailed analysis it concludes that there is a common need to improve the access of foreign law, and it is not just a technical issue, because the proper application of foreign law as a complex judicial task depends on the education and training of the judges and notaries as well.
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Notes
- 1.
For more details, see Burián, L. (2000). Hungarian Private International Law at the End of the 20th Century: Progress or Regress? In S. Symeonides (Ed.), Private International Law at the End of the 20th Century: Progress or Regress? (pp. 263–277.) Kluwer Law International.
- 2.
Esplugues, C., Iglesias, L., Palao, G., Espinosa, R., Azárraga, C. (2011). General Report on the Application of Foreign Law by Judicial and Non-Judicial Authorities in Europe. In C. Esplugues, J. L. Iglesias, G. Palao, (Eds.), Application of Foreign Law. (p. 4.). Sellier.
- 3.
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations, OJ L 177, 4.7.2008, pp. 6–16.
- 4.
Act No IX of 2009. See more: Raffai, K., Szabó, S. (2010). Selected issues on recent Hungarian Private International Law Codification. Acta Juridica Hungarica, 51(2), 136–137.; Vékás, L. (2009). A nemzetközi magánjogi törvény módosításáról [On the Modification of the Act on Private International Law]. Magyar Jog [Hungarian Law], 56(6), 321–326.
- 5.
C-148/02. Carlos Garcia Avello v. Belgian State [2003] ECR I-11613.
- 6.
According to the Act No IX of 2009, the new 10 (2) provision declares: “[h]aving regard to the right of any person to bear a name, the national law of the person shall apply. Upon request, the registration of a birth name shall be effected under the national law of the country of second citizenship [...]”.
- 7.
Act No XCIII of 2012 and Act No. CCXXVIII of 2012 related to international marriage and registered partnership.
- 8.
Act No XXVII of 2013 related to international adoption.
- 9.
Act No LXXI of 2015 related to international succession.
- 10.
According to its Section 1 “The purpose of this Law-Decree is to determine the following in the interest of the development of peaceful international relations: – the law of which country is applicable if a foreign person, object of property or right (hereinafter: foreign element) is involved in a civil law, family or labour law relationship and the laws of several countries would be applicable [...].”
- 11.
For the establishment of the contents of a foreign law, Section 5 provides for as follows: “(1) A court or another authority shall, ex officio, enquire about a foreign law not known to it, shall, if necessary, obtain the opinion of an expert, and may also consider the evidence presented by the party.”
- 12.
Swiss Institute of Comparative Law, The Application of Foreign Law in Civil Matters in the EU Member States and its Perspectives for the Future. 2011. http://ec.europa.eu/justice/civil/files/foreign_law_en.pdf. Accessed 12 September 2013. p. 20.
- 13.
It is necessary that the parties’ request shall be mutually. As the Curia of Hungary pointed out, the plaintiff’s unilateral declaration on the application of the Hungarian law per se could not enable the court to use the Section 9 of the Hungarian PIL Code and to apply Hungarian law instead of Austrian law (Gfv.IX.30.214/2006., EBH 2006.1520.). To contrast, in a former case the Curia stated that the parties’ reference to the rules of the Hungarian Civil Code means that they wanted to disregard the foreign law by this implication. (Pfv. 23. 679/1997/5.).
- 14.
We found three cases in this respect. In one of them the parties mutually requested that the court of the second instance should disregard the law of Ecuador and apply the Hungarian substantive law to resolve their contractual dispute. (Curia of Hungary Pf.VI.21323/1996/4.).Two recent decisions dealt with also contractual obligations, one of them was related to Spanish law (Pécs Regional Court of Appeal Gf. IV.30.010/2011/7.), and in the other case the parties avoided the application of Austrian law (Regional Court of Budapest-Capital 8.G. 40.635/2006/41.).
- 15.
As it happened in a case where the parties agreed on the application of Hungarian law instead of the designated law of Ecuador before the court of the second instance (Curia of Hungary Pf.VI.21323/1996/4.)
- 16.
Mádl, F., Vékás, L. (2012). Nemzetközi magánjog és nemzetközi gazdasági kapcsolatok joga [The Law of Conflicts and Foreign Trade]. Budapest: ELTE Eötvös Kiadó. 134.
- 17.
In the fields of traffic accidents, citizenship, contracts (agreements on loan, sale of goods, insurance) and guardianship.
- 18.
These cases concerned divorce, succession, maintenance of children and various contracts (e.g. carriage of goods, sale of goods, loan, insurance and maintenance agreement).
- 19.
These requests arrived mainly from the area of contract law and family law (e.g. placement of a child, presumption of fatherhood, name bearing and guardianship).
- 20.
For instance, the law of Delaware was applied in a case related to the preliminary question of the corporation’s legal status before the Curia of Hungary (Pfv.IX.21.325/2007/4.).
- 21.
Burián, L., Czigler, T., Kecskés, L., Vörös, I. (2010). Magyar nemzetközi kollíziós magánjog [Hungarian Private International Law]. Budapest:KRIM Bt. 128.; Mádl and Vékás (2012) 133–134.; Harsági, V., Kengyel, M., Nemessányi, Z. (2011). Hungary. In C. Esplugues, J. L. Iglesias, G. Palao, (Eds.), Application of Foreign Law. (pp. 214–215). Sellier.
- 22.
The Hungarian PIL Code entered into force on 1 July 1979.
- 23.
Mádl and Vékás (2012) 134.; Harsági et al. (2011) 214.
- 24.
Section 17 states:
(1) The law of the Hungarian State shall apply to its legal relations falling under the scope of the Law-Decree, unless
a) the State expressly consented to the application of a foreign law, or
b) the legal relationship relates to a real property abroad owned by the State or intended to be acquired by the State, or
c) the legal relationship relates to participation in an economic organization with foreign interests.
(2) Subsection (1) may only apply to a foreign state in the case of reciprocity.
- 25.
Kecskés, L., The Application of Foreign Law and Private International Law. In L. Gáspárdy (Ed.), Ünnepi tanulmányok dr. Novotni Zoltán 60. születésnapjára. (p.169.). Miskolc.
- 26.
Regional Court of Baranya 8.G.40.036/2005/53. See: Harsági et al. (2011) 217.
- 27.
Curia of Hungary Gfv.IX.30.045/2010/3.
- 28.
See e. g. the No. 3/2006 and 1/2013 opinion of the Curia of Hungary
- 29.
See e. g. the No. 1/2013 opinion of the Curia of Hungary, point 1, last sentence.
- 30.
Mádl and Vékás (2012) 137.
- 31.
Regional Court of Győr Gf.I.20072/2005/34. See: Harsági et al. (2011) 217. However, it is happen generally in proceedings of lower courts.
- 32.
Curia of Hungary Gfv. IX. 30.214/2006. (EBH 2006.1520.) and Pfv. II. 21.678/2012/7. In the latter decision the court compared the rules of the Danish, German and Hungarian law considering the validity of a matrimonial agreement concluded in Denmark between Hungarian and English citizens who lived in Germany.
- 33.
Both problem emerged e.g. before the Budapest-Capital Regional Court of Appeal where the court had to qualify such a marriage settlement which arranged the property relations not only in respect during their life but in respect the death of one of the spouses. This French legal matter (regulated by Articles 1524 and 1525 of the French Civil Code) is subjected to matrimonial property, but it is unknown under the Hungarian law. (Budapest-Capital Regional Court of Appeal 1.Pf.20.214/2012/25.)
- 34.
ECtHR, 6 April 2004, Karalyos and Huber v Hungary and Greece, no 75116/01.
- 35.
For instance, related to an attorney agreement the first instance used the rule of the Hungarian PIL Code to determine the applicable law, but the appellate court declared that the correct PIL legal instrument to find the lex contractus is not the domestic PIL rule but the Rome I Regulation (Győr Regional Court of Appeal Pf.V.20.074/2011/5.). The same problem emerged before the Szeged Regional Court of Appeal (Gf.IV.30.147/2013/5.).
- 36.
Mádl and Vékás (2012) 134.
- 37.
See, e.g. the following cases of the Curia: Pf. III. 20,474/1992.; Pf. III. 20,998/1995.
- 38.
Curia of Hungary Pfv. II. 20.996/2000., BH2002.492.
- 39.
In the Ministry’s data bases only four cases were found.
- 40.
- 41.
- 42.
- 43.
- 44.
- 45.
http://www.ejn-crimjust.europa.eu/ejn/. Established by 2001/470EC Council Decision (OJ L 174.).
- 46.
The London Convention was transposed into Hungarian law by the Government Decree No 140 of 1992, and entered into force in relation to Hungary on 16 February 1990. More about the mechanism and practice see: Rodger, B. J. and Van Doorn, J. (1997). Proof of Foreign Law: The Impact of the London Convention. International and Comparative Law Quarterly, 46(1), 151–173.
- 47.
Ukraine: Act XVI of 2002; Egypt: Act CII of 1999; China: Act LXII of 1997; Turkey: Act LVII of 1992; Czech and Slovakia: Act LXI of 1991; Syria: Law-Decree No 9 of 1988; Vietnam: Law-Decree No 8 of 1986; Alger: Law-Decree No 15 of 1985; Tunisia: Law-Decree No 2 of 1985; Belgium: Law-Decree No 64 of 1984; Cuba: Law-Decree No 4 of 1984; Cyprus: Law-Decree No 19 of 1983; Finland: Law-Decree No 25 of 1982; France: Law-Decree No 3 of 1982; Greek: Law-Decree No 21 of 1981; Italy: Law-Decree No 11 of 1981; Iraq: Law-Decree No 11 of 1978; former Soviet Union (current successor States): Law-Decree No 18 of 1972 on the modification and supplement of Law-Decree No 38 of 1958; North Korea: Law-Decree No 12 of 1971; Mongolia: Law-Decree No 11 of 1969; former Yugoslavia (current successor States): Law-Decree No 1 of 1969; Austria: Law-Decree No 24 of 1967; Bulgaria: Law-Decree No 6 of 1967; Albania: Law-Decree No 25 of 1960; Poland: Law-Decree No 5 of 1960; Romania: Law-Decree No 19 of 1959.; Britain: Act XIII of 1936.
- 48.
Except ones, which were concluded with Britain and with Iraq.
- 49.
Law-Decree No 28 of 1983.
- 50.
Esplugues Mota, C. (2011). Harmonization of Private International Law in Europe and Application of Foreign Law: the “Madrid Principles” of 2010. Yearbook of Private International Law (pp. 273–298.) Sellier.; Lalani, S. (2011). A Proposed Model to Facilitate Access to Foreign Law. Yearbook of Private International Law (pp. 299–313.) Sellier.
- 51.
For instance, at the international level the Hague Conference on Private International Law has been working on a similar project for ages. And the difficulties of this sophisticated and complex project are evident if the conclusions of the joint conference with the EU in 2012 are read. As it stated in point 5: “Any future instrument in this field should not be exclusive in nature, but rather should be complementary to existing and future mechanisms that also facilitate access to and the treatment and application of foreign law.” See: Access to Foreign Law in Civil and Commercial Matters, Conclusions and Recommendations (2012). http://www.hcch.net/upload/foreignlaw_concl_e.pdf. Accessed 12 September 2013.
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Burián, L., Szabó, S. (2017). Hungary: Inconsistencies Between Theory and Practice in the Treatment of Foreign Law in Hungary. 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_10
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