PhD defence S. (Steven) Stuij

By virtue of rules of private international law, courts may sometimes be required to apply the law of another state, since the legal relationship at hand contains a foreign element. The application of such foreign law may be problematic. After all, a court may know its own law, but not necessarily the law of another state or territory. Even if the court does obtain information on that law, such information may prove to be insufficient or deficient, or it may only be obtained at a high cost. Foreign law can also be interpreted in a way which deviates from its original meaning, whilst there is not necessarily a higher court with the proper authority to ‘correct’ such erroneous findings in law. Therefore, the need to apply foreign law may give rise to a number of intricate legal issues of a procedural, substantive or private international law nature.

The problematic nature of foreign law entails that the maxim of iura novit curia (‘the court knows the law’), though less controversial in purely domestic cases, takes on a different meaning in cross-border litigation. Legal systems have tried to cope with the problems caused by the applicability of foreign law via its procedural status: traditionally, a distinction is made between the so-called ‘fact doctrine’, according to which foreign is a mere fact to be pleaded and proved, and the ‘law doctrine’, according to which foreign law has a procedural status equal to that of the forum’s own law and, accordingly, has to be applied ex officio. Thus, the responsibility for the proper application of foreign law is attributed to either the parties or the courts. However, the position of foreign law in civil proceedings continues to be problematic. In the past decade, a number of questions as to the application of foreign law have risen, implying that, despite the approach chosen, its status, position, and application is not unproblematic. Therefore, there is a need for a new study on this topic.

Due to corona, the PhD defences do not take place publicly in the usual way in the Senate Hall or in the Professor Andries Querido Room. The candidates will defend their dissertation either in a small group or online.