Switzerland: The Principle Iura Aliena Novit Curia and the Role of Foreign Law Advisory Services in Swiss Judicial Practice
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The first part of the report aims at defining the content and limits of the principle iura novit curia whenever the courts needs to apply iura aliena. After assessing in which circumstances and on which grounds foreign law is applied in Switzerland, the report argues that the principle iura novit curia, when it comes to foreign law, needs to be nuanced proportionally to the linguistic and cultural accessibility of the foreign law applicable in the forum. Based on an analysis of case law, the first part concludes stating that foreign law is viewed as “law” in Switzerland and, as such, it cannot be proved by the parties, although they may be helpful to assess it.
The second part of the report describes the nature of the Swiss conflict of law rules and the frequency with which the application of these rules leads to the application of foreign law. It explains when foreign law may be applied ex officio and when parties may enter an agreement regarding their choice of law. It also explains the role of the courts and parties in ascertaining the content of foreign law; the nature of legal information on foreign law; and, the means used by Swiss judicial authorities to ascertain foreign law. Lastly, this part of the report evaluates whether there is a need to modify either the conflict of law rules or the treatment of foreign law in Switzerland.