Application And Consideration Of Foreign Law
Résumé
Though seemingly trite, the common question of “what law applies?” can often be a thorny issue. This article analyses the application of foreign law within the framework of Romanian private international law, offering a presentation of the legal mechanisms and doctrinal principles governing such application. Questions of law relating to facts are properly reserved to the judge for disposition. But a preliminary question, relevant to the phase or phases of trial, is often presented to the court. While most questions of law fall within a legal framework of national law, some conflict cases must be answered independently of the nation-state or domestic legal system. The law of a foreign jurisdiction may govern an issue, or in its absence, international law. When such questions arise, their resolution is complicated.
The paper elaborates on the conceptual meaning of lex causae, outlining its different interpretations based on territorial jurisdiction, legal system structures, and sources of law, including statute law, case law, and religious law. Starting from the legal provisions, the paper presents the regulatory forms of the application of foreign law in Romania, as well as the rules of jurisdiction. By means of legal theory, statutory references, and pragmatic illustrations, the paper offers a thorough grasp of the rationale, scope, and constraints of applying foreign law in Romanian legal practice, thus augmenting the larger debate on legal pluralism and transnational legal interactions.
Références
Goga, G. (2007). La Libre Circulation des Personnes dans le Contexte Communautaire, Acta Universitatis Danubius. Juridica, Vol 3, No 1 (2007), https://journals.univ-danubius.ro/index.php/juridica/article/view/177
Rusu, I. (2010). Mutual Recognition of Financial Penalties between the EU Member States. Critical Observations., Acta Universitatis Danubius No. 2/2010, https://core.ac.uk/download/pdf/26951888.pdf
Matei, A. & Cocosatu, M. (2008). Towards an Administration without Frontiers. An analysis on the instruments and mechanisms of cooperation in the field of migration from Romanian view, National School of Political Studies and Public Administration (NSPSPA), European Review of Public Law, vol 21_1/2009, spring, ESPERIA Publications, Ltd., London, https://mpra.ub.uni-muenchen.de/20214/
Sararu, Silviu C. (2014). Short considerations about the jurisprudence of the Constitutional Court of Romania on the conditions required for the acquisition of locus standi in the subjective administrative contentious. Acta Universitatis Danubius. Juridica, Vol 10, No 2 (2014), https://journals.univ-danubius.ro/index.php/juridica/article/view/2393
Diaconu, N. & Andrus, C. (2011). The State of Law – between Ambition and Reality. Acta Universitatis Danubius. Juridica, Vol 7, No 3 (2011), https://journals.univ-danubius.ro/index.php/juridica/article/view/979
Law No. 105 of September 22, 1992 on the regulation of private international law relations, Official Gazette no. 245/1 Oct. 1992, with subsequent amendments and supplements, currently repealed
Law No. 287 of July 17, 2009 on the Civil Code, with subsequent amendments and supplements, Official Gazette no. 246/29 Apr. 2013
Law no. 76 of 24 May 2012 for the implementation of Law no. 134/2010 on the Code of Civil Procedure, Official Gazette no. 365/30 May 2012

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