Assignations in International Private Law: Comparative study in the application of Choice of Laws.

Abstract

If the Choice of law grants jurisdiction to a particular foreign law, then the judge must specify the meaning of the foreign law that have been granted jurisdiction. Similar to any other law, two types of rules apply, choice of the applicable law and substantive articles for adjudicating the dispute. The question of this paper is whether the judge should refer to the foreign law in its entirety, including the Choice of Law it contains, or rather applying only the substantive articles of this foreign law to the fact of the case presented? Hence, determining whether the task of the judge is limited to the application of the substantive articles in foreign law or the application of what is required by the Choice of Law. This an important subject, not only theoretically but practically, as this may impact the final resolution of the dispute. This problem has sparked widespread controversy in jurisprudence and the Judiciary for the following difficulties. Firstly, to refer to the Choice of Law of a foreign country, there must be demonstrable competency of this law. Secondly, applying the substantiative articles of foreign law might contradict the context of the foreign law or if taken comprehensively. This paper attempts to fill the gap in assignation theory in International Private Law.