Croatia: Foreign Law Before Croatian Authorities – At the Crossroads?
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Mandatory application of conflict of law rules seems undisputable in the Croatian legal system. Principle of iura novit curia is embodied in relevant legal sources (Constitution, PIL Act, sectoral laws), confirmed by legal writings and rulings of Supreme Court and Constitutional Court. Despite the compulsory character of the choice of law rules, first instance courts are rather reluctant in application of choice of law rules. Foreign law is considered a “law”, whereas court is obliged to ascertain the content of foreign law ex officio. Establishing the content of foreign law is most often done through the Ministry of Justice. Case law however confirms that parties can play an active and supporting role in judge’s efforts to establish foreign law as well. It is conceived that establishing foreign law can endanger procedural efficiency, as it is time consuming and costly (due to translations). Data on application of bilateral or multilateral regimes (EJN, HIJN) that provide framework for direct judicial cooperation in establishing the content of foreign law have not been reported yet. Non-application of foreign law may be justified on the grounds of public policy. Future PIL Act provides additional devices for departure of foreign law application: lois de application immediate and general escape clause. If the content of foreign law is not established, lex fori is applied.