The Analysis Of Relevant Questions That The Parties Were Disability To Ascertain Foreign Law

Ascertainment of foreign laws is a completely significant link during the trail of international Civil and Commercial Case.In accordance with guidelines on conflict norms applying to ascertainment of foreign laws,the primary task of judges is to identify the existence and content of foreign laws.Domestic and foreign scholars have done much research on the ascertainment of foreign laws,nevertheless,most of which merely touched on the theoretical hierarchy,but neglecting the ultimate objective of ascertainment of foreign laws is appliance of trail practice in international civil and commercial cases.The paper is divided into five parts,taking the case as the starting point,the first section is involved the brief introduction of the Delixy case followed by three matters in the practice of ascertainment of foreign laws.The questions respectively are the criteria to judge the parties who are disability to ascertain the foreign laws,and the nature and admissibility of material in expert report,and the seeking for assistance when the parties are incapable of ascertainment obligation.One issue is focused in the second part that analysis of parties involved fulfills obligations of ascertainment positively or negatively,conclusion of criteria referring to the parties who are disability to fulfill the ascertainment obligation and summary of the Delixy Energy Pte Ltd Case.Admissibility of material in expert report is being discussed in the third section.The standard of admissibility is put forward by comparison between correlations theory and legislation in Anglo-America Legal System and Civil Law System.The fourth part concentrates on the seeking for assistance,including the active assistance of judges and the assistance sought by the parties,when the parties are incapable of ascertainment obligation.In the fifth part,the corresponding recommendations are proposed in terms of Chinese legal system of identified the foreign laws by parties in Delixy case,one point is highlighted that the judges should distinguish the positivity and negativity of ascertainment obligations.The property of expert report and admissibility standard should be explicated in the least delay possible and establishment of assistance mechanism for disability of ascertainment obligation in foreign laws.Despite that the laws about ascertainment of foreign laws is clearly formulated in our “Applicable Law of Civil Legal Relations for Foreign Affairs”,a throng of questions are exposed in legal practice.The prominent problem is that some judges may optimally affirm the disability of ascertainment of foreign laws and inclined to appliance of Chinese laws.In the final analysis,legal system is capable of the theory of ascertainment of foreign laws appliance for trail practice,and lack of the refined rules on ascertainment of foreign laws.Therefore,supervise and urge to theory and practice of foreign law ascertainment is prospected by presentation of Delixiy Energy Pte Ltd Case research.