tag:blogger.com,1999:blog-5574479.post5900347284151368993..comments2024-03-29T06:53:23.405+00:00Comments on The IPKat: Should EU Courts know national statute law and case law? A comparative repriseVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-5574479.post-44886977989338993122014-04-09T23:30:00.972+01:002014-04-09T23:30:00.972+01:00adversarial v inquisitorial
what about a mix syst...<i>adversarial v inquisitorial</i><br /><br />what about a mix system, that shows features of both adversarial and inquisitorial systems. An adversarial approach with some inquisitorial characteristics, as realized in some national systems.<br /><br /><i>"In cases where parties put forward malicious interpretations of national law, this final target could require a certain degree of freedom for the judging body to full review and investigate national law and case law.</i><br /><br />I'm a big supporter of the principle: "facts are for the parties, a judge can always fill in legal grounds."<br /><br />I think, there is an agreement between most of European countries regulating how national judges should consult foreign law.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-27222568909207931462014-04-09T20:06:25.811+01:002014-04-09T20:06:25.811+01:00Thank you for your comment, iPuffin.
The adversa...Thank you for your comment, iPuffin. <br /><br />The adversarial v inquisitorial was also one of my EIPIN friends' point, when we discussed the issue some days ago. Still, once again: what would be better for the EU judging bodies to adopt, considering the peculiarities of the system? <br />Alberto Bellanhttps://www.blogger.com/profile/07713782540062346962noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-60300808748233466292014-04-09T17:28:45.771+01:002014-04-09T17:28:45.771+01:00The difference may perhaps lie with the role of th...The difference may perhaps lie with the role of the judge - ie the inquisitorial v the adversarial system.<br /><br />The EU situation is clearly adversarial, and whilst the balance of proving a point of fact begins with the party seeking to rely upon it, if the other side do not contest the point then they have themselves to blame. <br /><br />Foreign law is a question of fact which is no different from any other fact a party seeks to adduce. In an adversarial case, it is not open to a judge to research and rely upon the same without giving the representatives the right to comment.The iPuffinnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-22226941840456773322014-04-09T15:43:31.551+01:002014-04-09T15:43:31.551+01:00Wouter, thank you for your comment! What is surpri...Wouter, thank you for your comment! What is surprising here is that not only this principle diverges between Member State Laws, but also within the EU system, depending on the field. Astonishing. <br /><br />Anonymous @12.47: you won't believe it, but I've just performed a reading comprehension test. (likely failing)<br /><br />Alberto Bellanhttps://www.blogger.com/profile/07713782540062346962noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-60895595754796102722014-04-09T13:04:38.013+01:002014-04-09T13:04:38.013+01:00Very good, the EU institutions learn to apply the ...Very good, the EU institutions learn to apply the rule of ius curia novit, at least for the EU member states!<br /><br />The alleged contribution from Holland could not have come from a learned Katfriend. The first textbook on procedural law that students get to see indeed also quite clearly says: ius curia novit. Articles 67 and 68 of the Dutch Code of Civil Procedure provide how the court should obtain this knowledge, with a reference to the 1968 European Convention on information on foreign law and the more recent Regulation (EC)1/2003, which only relates to informationon competition law issues. The District Attorney in The Hague is repsonsible for the coordination of questions and answers. <br /><br />Article 67 indeed also provides that the parties have a right to be heard about the questions that the court will pose, whereas article 68 provides thah they can comment on the answers obtained.<br /><br />That being said, courts do like to get some information from the lawyers on the content of foreign law, because that makes it easier for the court to get the additional information. Besides, if such information is not contested by the other party, the court tends to accept it, even though that does not really take away its obligation to make its own inquiries.<br /><br />So, Holland seems sato be as civilized as Italy and France, and indeed observes the 1968 Convention.<br /><br />Wouter Pors<br />Bird & Bird The Hague Wouter Porshttp://www.twobirds.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-42419871922521695502014-04-09T12:47:31.507+01:002014-04-09T12:47:31.507+01:00What do readers think about what ?What do readers think about what ?Anonymousnoreply@blogger.com