ABSTRACT
To ensure legal certainty, predictability, comity among nations and party autonomy, judges are faced with the application of foreign law. This poses specific problems such as a (perceived) reduced quality of justice due to the judge’s unfamiliarity with the foreign law. There are, however, certain techniques that allow the judge and parties to resort to the lex fori. By comparing legal rules, court practices and scholarly opinions in Belgium, England, France and Germany, I identify ten such techniques. Some of these techniques are very reasonable (eg, if in urgent cases there is no time to find the relevant rule of the foreign law); others are more questionable (eg, if the judge after a brief examination concludes that the foreign law is similar to the lex fori). The existence of these techniques has considerable implications for our understanding of private international law by putting into question the separation between jurisdiction and the applied law, and for the practicing lawyer by providing opportunities to apply the lex fori regardless of the lex causae.
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Nathan Willems, A Comparative Analysis of the Homeward Trend, European Review of Private Law volume 33 issue 3 pp 667-704 (2025).
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