Belgium: Foreign Law in Belgian Courts – From Theory to Practice
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The present contribution attempts to critically describe the status of foreign law in Belgian courts. Because this status is intrinsically linked to that of conflict of laws rules, the position of the latter is also taken into consideration. An attempt is made to go beyond the mere description of principles to explain how the rules are applied in practice by courts and practitioners. The main lesson to be learned from this overview is that the status of foreign law in Belgian courts is subject to contradictory policies: on the one hand, courts and the legislator have adopted a highly ambitious policy whereby the position of foreign law is aligned with that of local law, with the consequence that it falls upon courts to determine the content of foreign law and that courts should strive to read and construe foreign law as it would be applied by foreign courts. On the other hand, Belgium has failed to adopt any mechanism to assist courts coping with this ambitious principle. This great divide between theory and practice casts a long shadow over the viability of the whole system.