INTERNATIONAL COOPERATION, ONE OF THE MECHANISMS OF ASCERTAINING THE FOREIGN LAW IN PRIVATE INTERNATIONAL LAW

Now, when intensive economic relations are being formed between nationals, the issue to apply foreign law rules become more active. Judges and lawyers may not be acknowledged with the essence of resolution of some con ﬂ icts of law cases. The need of international cooperation in the civil matters has long been fully recognized and the problem of proper organization and regulation of judicial assistance has been several times the object of international agreements, both bipartite and multipartite. This article will undertake to consider the present framework of determining foreign law content in relation to international assistance. Some writers have said that international cooperation is, indeed, an international duty imposed by the law of nations to aid in the administration of justice. Others take issue with this characterization and regard international assistance as comity among nations rather than the law of nations. Whether the basis for international cooperation rests on a quest for universality of justice or simply on the need for some convenient and practical method for reducing chaos, most civilized countries do not hesitate giving aid on request by foreign


INTRODUCTION
In the world of legal space, private legal agreements are often concluded, which are no longer regulated only by domestic law, as well as the cases of establishing contact with the legal system of different countries are increasing. Consequently, the question of regulating various private legal relations is activated, which will effectively respond to the requirements of the subjects of private law.
Why does one state apply the law of another at all? Basically, the most dominant answer is that this is comity of nations. Foreign law is applied for being nice to other states. This attitude is grounded in the mutual interest of the states in having commercial and other contacts with each other. 1 But is the relationship with other states really the reason for which we apply its law? There are certainly areas where concerns for bilateral relations and cooperation with other states infl uence the choice-of-law process. Certainly, we are not bound to apply another state's law. We do it for the sake of good relations with the other country. What counts is only the gesture towards the other sovereign. 2 When a judge decides a case involving a foreign element, private international law rules will sometimes indicate that the applicable law is to be found in a foreign legal system, and not in the law of forum. When 1 Lehmann, M., 2011. From Conflict of Laws to Global Justice, Columbia University, p.27. 2 Ibid 28.
private international law rule refers the application of a foreign law rule to a particular legal relationship, then the court must apply that norm. The process of determining a foreign law raises practical diffi culties, as a judge must apply not just foreign legal acts, but also the case law and interpretation with which it is applied in another State. When applying a foreign law, the court shall take necessary measures to determine the essence of the rules of the foreign law taking into consideration their offi cial interpretation, application practice and doctrine in the respective country. All necessary measures involve inviting an expert to provide the court with comprehensive information on the content of foreign law, about formal or unoffi cial explanation of its use. The court may request an opinion from the relevant scientifi c-research institutions. One of the methods of ascertaining the content of a foreign rule can be considered the provision of legal assistance to each other by states at the international level. Under legal assistance, an obligation arises for one State to take legal action in its own jurisdiction at the request of another State. This means that the organs of government of one state operate with public-legal functions in another, foreign country, which, at fi rst glance, may be considered as a restriction on the sovereignty of a foreign state. On the other hand, legal assistance is provided on the basis of bilateral or multilateral international agreements, which, according to the principles of international law, is an expression of the self-restraint of states and consequently, of sovereignty. 3 In fact, a national court's adjudication of a foreign law claim can provide stability and fairness. Moreover, adjudication of substantive foreign law claims in domestic courts is possible without infringing the interests of another sovereign. Also, the resolution of a foreign law claims in a national courts is generally consistent with comity and amicable commercial relations among nations. 4 Article 62 of the law of Georgia on Private International Law states: if it is necessary to perform judicial acts outside the territory of Georgia to determine case circumstances, establish facts, and transfer documents or for other reasons, a petition may be fi led with an appropriate institution of a foreign country; if an act is performed through diplomatic missions or consular representations of Georgia, a petition must be fi led with them. Thus, according to Georgian private international law, providing legal assistance is limited only on the basis of motions between Georgian and foreign courts, although mutual legal assistance is broader and in addition to judicial cooperation, includes actions by various justice institutions for their jurisdiction issues. 5 These actions can be: obtaining testimony of witnesses who are abroad, serving judicial documents on persons in foreign countries who are not residents of the country of the forum, and procuring information regarding foreign law. 6 1. REQUEST TO STATE AUTHORITIES FOR LEGAL ASSISTANCE 1.

Receiving Information from the Diplomatic and Consular Missions
Providing international legal assistance is usually the function of the executive. The parties have no right to request directly to the relevant foreign authorities for international assistance. Because of this, they must request to the court, the diplomatic mission or the consular mission. Accordingly, in international civil litigation, there is a distinction between contractual and non-contractual international legal assistance. Contractual legal assistance implies the receipt of legal aid under an international treaty. 7 Diplomatic and consular missions play a crucial role in this kind of assistance.
One way to get information about foreign law is to get aid from the diplomatic mission of the country whose law is applicable. 8 This is provided for in the Vienna 1961 Convention on Diplomatic Relations, according to which one of the functions of a diplomatic mission consist, promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientifi c relations. In various foreign countries certifi cates of diplomatic or consular authorities concerning the law of their countries are used as proof of the foreign law. 9 Presumably in the sense that the ambassador's opinion on the law of his country equals that of an expert. In many cases, when the parties and the court try to obtain information through offi cial foreign channels, for this purpose, questions are usually sent to the foreign embassy and consulate to obtain copies of the relevant legislation. However, in reality this is not considered as a practical and useful method. In Bristow v Sequeville, 10 a jurisconsult, adviser to the Prussian consulate in London, who has studied law in Leipzig, and knew that the Code Napoleon was in force in Saxony, was not allowed to give evidence concerning the Code. The judge observed: "If a man who has studied law in Saxony and never practiced in Prussia is a competent witness to prove the law of Prussia, why may not Frenchman, who has read books relating to Chinese law, prove what the law of China is?" This case has shown that actual practical experience before the courts of a particular jurisdiction was essential. A number of cases departed from this rigid attitude over the years, and it seems that the Civil Evidence Act 1972, s 4 (1) did no more than enact the common law declaring that a person suitably qualifi ed, on account of knowledge or experience, is competent to give evidence of foreign law, irrespective of whether he has acted, or is qualifi ed to act, as a legal practitioner in the country in question. 11 Although it was probably true that, until the end of the 19th century, the courts were minded to demand that the witness had actual practical experience, there are some signs of fl exibility as the century progressed. In the case Goods of Dhost Aly Khan 12 , a diplomat based in the Persian Embassy in London was allowed to give evidence as to the law of Persia after it was demonstrated that there were no professional lawyers in Persia and that diplomatic staff were trained in the relevant law. In Birch v. Birch 13 the California court refused to accept a certifi cate of the Consul General of the Republic of China concerning the divorce law of China for the rea- 9 Stern son that the Consul General was not an offi cer having charge of the original Code. In 1981, Court of Appeal of Brussels was faced with the mission of applying the law of Sudan to decide whether the recognition of a child by a person of Sudanese nationality, could be challenged by the mother of the child. The court fi rst noted that parties had undertaken extensive efforts to uncover the content of the law of Sudan. The court then mentioned a note communicated by the Belgian embassy in Sudan, providing some information on the content of the law of Sudan. 14 11 January 2008, Court of First Instance of Liege found that in a case where the law of Sierra Leone was applicable to determine whether a person was the father of a child, a lower court twice requested the assistance of the Consulate of Sierra Leone to obtain information on the applicable principles. Experience has shown, however, that this provides limited result: when a request is answered, it mostly only contains a copy of the relevant legislation, without any further explanation as to the application of the statutory provisions. 15 There is an opinion in the legal literature that obtaining information about the foreign legislation in this way is acceptable, but imperfect. The German scholar Schack believes that information on foreign law can be obtained from the diplomatic mission of a foreign state, although the mission mainly answers particular questions such as age of majority, marriage age, grounds for divorce, amendments to the relevant law, etc. But it is diffi cult to determine issues such as the terms of performance of the obligation, the consequences of breach of contract, and etc. 16

Receiving Information from the Ministry of Justice
International legal assistance is one of the necessary conditions for the administration of justice, if the case involving a foreign element or separate procedural actions are required to be carried out in a foreign state. Proper providing of international mutual legal assistance affects the ability of a court to secure the rights of persons involved in civil, family or corporate relations. 17

14
Treatment In the international civil litigation, great importance is attached to the providing of legal assistance between states by the executive branch. 18 Thus, the Ministry of Justice is the state body that is asked to assist in obtaining information on foreign law. 19 Indeed, the Ministry of Justice exchanges legal information with foreign states, but it should also be noted that providing information on foreign law is not part of its list of direct responsibilities. The most effective bilateral cooperation in this fi eld is the communications offi cials' project between the Estonian and Finnish Ministries of Justice (launched in 2001), in the framework of which one so-called Estonian communications prosecutor works in the Finnish Ministry of Justice and one Finnish communications prosecutor works in the Estonian Ministry of Justice. According to the Ministry of Justice, that project has provided signifi cant assistance in the solution of international requests for legal assistance, giving, inter alia, information about Finnish family law. 20 Another Convention between Belgium and Romania concerning mutual judicial assistance in civil and commercial matters signed in Bucharest on 1975, only provides a basic mechanism for cooperation between the Ministries of Justice in order to obtain information on each other's law. 21 An important source of legal assistance is the 1968 Council of Europe London Convention on Information on Foreign Law, which includes a number of procedures for the exchange of information by special authorities of the state. Its member states are more than 40, and Georgia joined it in 1999. According to Article 1 of this Convention, the Contracting Parties undertake to supply one another, in accordance with the provisions of the Convention, with information on their law and procedure in civil and commercial fi elds as well as on their judicial organization. Article 3 of this Convention defi nes, that a request for information shall always emanate from a judicial authority. In accordance with the rules established by the Convention, each Contracting Party shall set up or appoint a single body ("receiving agency"). The receiving agency may be either a ministerial department or other State body. Each Contracting Party may set up or appoint one or more bodies ("transmitting agency") to receive requests for information from its judicial authorities and to transmit them to the competent foreign receiving agency. The receiving agency may be appointed as a transmitting agency. The information given in the reply shall not bind the judicial authority from which the request emanated. The reply should inform in an objective and impartial manner and contain relevant legal texts and relevant judicial decisions. It shall be accompanied, to the extent deemed necessary for the proper information of the requesting authority, by any additional documents, such as extracts from doctrinal works. It may also be accompanied by explanatory commentaries. The London Convention can be considered as an interesting mechanism of international cooperation for determining the content of foreign law, but its potential in the Georgian legal space is completely untapped. Unfortunately, we do not have offi cial statistics on the use of this tool by Georgian courts to determine the content of a foreign rule. Thus, it should be interesting to share international experience in the application of this Convention.
The usefulness of the Convention is disputed. Some shortcomings prevent the Convention from being a real success. A main problem seems to be that only abstract questions are asked and the receiving authority does not have complete knowledge of the case. But sometimes it would be necessary to know the entire content of the fi le or the argument. There is a danger of misunderstandings. So the information received may sometimes not suffi ce to decide the case. 22 For instance, one of the case The OLG Munich (Higher Regional Court or Court of Appeals in Munich) has stated that a court in need of further information on the foreign law has to consider whether using the London Convention is a faster and more cost effi cient way than an expert opinion of an institute for international and foreign private law. 23 The practical benefi t of the Convention, unfortunately, is not very high, as is shown by the relatively small number of requests. In Germany, the Convention has not found much attention and appears not to be used very much in practice. Praise for the convention is scarce. Each year there is a number of cases where the Convention is used, in the two years, 1999 and 2000, there were 32 outgoing requests, and incoming requests were received in 2001. So Germany receives more requests than it itself transmits. 24 A main problem is that the Convention only allows for abstract legal questions, and not for an overall legal opinion on the particular case. Moreover, the procedures under the Convention are rather time-consuming and costly, both in having to involve experts and with the formulation of questions/answers and translations. 25 The Austrian legal literature argues that the Convention generally is not an effective means of resolving disputes in practice. In decisions of Austrian courts we fi nd the following picture: the judge is obliged to make use of the measures foreseen in the convention, especially when there is enough time to do so, similar: court shall make active use of the convention. In a further decision, the judgment was overwhelmingly built on such opinion. Different: overwhelming uselessness of the information received. 26 According to the offi cial search system of Austrian judgments in civil law disputes, these decisions seem to be the only one citing the convention and the relevant Austrian legislation. In Austrian commentaries it is said that the possibilities out of the Convention are often to general not apt to help to fi nd a solution for the case or that it is not efficient in practice. 27 To ascertain foreign law Italian lawyers mostly use the offi cial sources of foreign laws available on the internet or in national libraries and the cooperation of foreign colleagues and from time to time they use the European Judicial Network in Civil and Commercial Matters. In contrast, lawyers rarely refer to diplomatic channels, paid foreign legal databases, or opinions of legal experts because of their extremely high costs and they never use the mechanisms of the London Convention or bilateral mechanisms of judicial cooperation. 28 Offi cial statistical data on how frequently this system is used in Italy does not exist. According to the Swiss Institute Study, there is a general consensus among practitioners (judges, notaries, lawyers, public offi cial registrars) that the European Judicial Network has enormous potential that has yet to be fulfi lled. 29 Italy is not included in the meta-search engine of National Case Law that was created by the Network of the Presidents of the European Supreme Courts and released in April 2007. This meta-search engine allows one to simultaneously query several search engines of 20 EU Member States, and provides information on supreme court justices and legislation, including automatic translation facilities. 30 In Estonia, the European Judicial Network in civil and commercial matters is not often used as a source for determining the content of the foreign law. In one judgment of the court of 1st instance, however, the court expressis verbis stated that it determined the content of the applicable Italian family law via the European Judicial Network in civil and commercial matters. Another judge of the court of 1st instance also reported the frequent use of this database but gave no evaluation of the quality of the information provided. 31 According to the information obtained from the Ministry of Justice, the number of requests for information about foreign law has diminished in recent years. In 2007, 10 requests concerning family and inheritance law matters were submitted from Estonia; 3 requests were transmitted to France, 3 requests to the USA, 2 requests to the United Kingdom, 1 request to Sweden and 1 request to Israel. In 2008, only 4 requests were submitted from Estonia; they all concerned inheritance law issues and were transmitted to the United Kingdom, Mexico, Canada and Israel, respectively. The number of requests submitted in 2009 was even smaller, comprising 2 requests and concerning the law of Germany and Sweden. Most of the requests were initiated by Estonian judges. For practitioners, it has probably been easier to obtain information from other sources. 32 In Belgium the Convention does not seem to be applied frequently. Two different authorities have been appointed by Belgium as national liaison bodies: The Ministry of Foreign Affairs has been appointed as transmitting agency, while the Ministry of Justice has been appointed as receiving agency. The Ministry of Justice has received only 10 requests for information during the fi rst eight years of application of the London Convention. 33 In a recent case, the Supreme Court refused to quash a ruling by a lower court which had not requested application of the London Convention. The Court of Appeal was seized of a dispute governed by English law. One of the parties had submitted a witness statement written by an English practitioner, outlining how English law should be applied in the particular case. The Court of Appeal deemed that it had been suffi ciently informed by this witness statement. Hence, it did not request information from England on the basis of the London Convention. Before the Supreme Court, the plaintiff alleged that by not using the mechanism put in place by the London Convention, the Court of Appeal had breached its treaty obligation. The Supreme Court rejected this argument, holding that the London Convention did not require that a court should always seek information on foreign law through the Convention mechanism when it is required to apply foreign law. 34 The fi rst reason of the Convention's ineffectiveness seems to lie in the general unawareness of the European judiciary in the existence and the advantages of this instrument. The second reason lies in the limited scope of potential users: the mechanism of the Convention is only open to judicial authorities of the Contracting States (Art. 3). Bearing in mind that in some States judges are prohibited from undertaking their own research on the content of foreign law, the effectiveness of the Convention is seriously undermined. Finally, the Convention does not resolve a key practical problem, namely, the costs relating to obtaining information on information on foreign law. 35

32
Ibid. Republic of Georgia is a part to the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, which mostly applies to the states of the post-soviet space. The Convention is а comprehensive document regulating a wide spectrum of legal matters including service of judicial or extrajudicial documents and recognition and enforcement of civil and criminal judgments as well as cooperation between competent authorities in the fi eld of civil, family and criminal law. The Convention provides for the protection of the property and personal rights of the citizens of a particular country in the territory of another country on the basis of the principle of reciprocity and equality. In addition to the substantive and procedural norms of mutual legal assistance, the Minsk Convention also includes confl ict of laws norms, such as those relating to international adoption. 36 Thus, the confl ict of laws rules in the Convention do not regulate the relationship between the parties, but indicate which country's law should be used to regulate that relationship, namely the status of a person, family law, property law, inheritance law, and etc.

International Treaties
In the fi eld of international legal assistance, in addition to multilateral international conventions, states have concluded bilateral international treaties with specifi c countries. Georgia has bilateral international agreements on mutual legal assistance in civil, family, trade and criminal matters with Azerbaijan, Turkey, Turkmenistan, Ukraine, Kazakhstan, Uzbekistan, Kyrgyzstan, Greece, and on mutual legal assistance in civil law cases with the Republics of Bulgaria and Armenia. This legal assistance is provided to strengthen the close friendly relations between the countries through the introduction of effective cooperation in the fi eld of legal relations, based on the principles of sovereignty, equality and non-interference in domestic affairs. Central Authorities -Ministries of Justice provide each other with information on current or past national legislation in their state and the practice of their use by justice institutions, as well as copies of court decisions. At the same time, it should be noted that the bilateral and multilateral international agreements has been signed by Georgia provide for the possibility of mu- tual legal assistance also using "diplomatic channels". 37 Although there are several important international conventions in the fi eld of international legal assistance, international mutual assistance between countries is largely based on the principle of comity. In receiving international legal assistance, the petitioning State hopes that the other State will assist and provide the necessary information on the basis of comity. For its part, the assisting State hopes to receive similar assistance from the petitioning State. In the doctrine of private international law, this cooperation is the starting point in resolving the problem of international assistance and not in invading the jurisdiction of countries. 38

Conclusion
In the context of globalization, the transnational movement of people, services, goods and information is becoming even stronger. As a result, we get more inten- sive private international law relations in which not only large companies participate with their business transactions, but also ordinary people with a variety of day-today consumer, contract, matrimonial, inheritance and other relationships. Thus, private international law plays an important role in defi ning the applicable law and regulating private international law relations. In spite of great achievements in the modern information technologies and development of comparative jurisprudence, none of the countries' judge can have a claim on exact knowing of relevant standards of the law of foreign countries. In addition, the foreign court cases discussed above show that the use of the mechanism provided for in the European Convention on Information on Foreign Law in practice is rare. It is therefore noted that the signifi cance of this Convention should not be underestimated in practice. However, it would be better if the courts themselves used international connections to increase the number of sources of information on foreign law, even if only on a regional scale. NOTES: