Constitutionality Review of Foreign Law: The Relevance of Substantive Concerns

• Giovanni Zarra ^[1]
  1. [1] University of Naple-Federico II
• Localización: Rivista di diritto internazionale privato e processuale, ISSN 0035-6174, Vol. 53, Nº. 4, 2017, págs. 940-974
• Idioma: inglés
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• Resumen

  • This article analyses how judges could solve the issue of constitutionality review of foreign law and tries to understand which aproach, among the ones emerging front the case law, may best solve such an issue while ensuring at best the protection of the rights of the disputing parties. Starting from a general discussion of the role of judges in solving private international law issues where, as in the present case, there is no criterion dictated by the law, the Author then refers to the traditional approaches to the issue of constitutionality of foreign law emerged in the available case law and assesses them in light of their substantive repercussion on the rights of the disputing parties. Afterwards, the paper focuses on some recent decisions in which the issue emerged before English courts and analyses the approach that has been adopted in these disputes. Being such an approach based on a concrete balance of the conflicting interests at stake, the Author argues that it may be the starting point for a new solution to the discussed issue, considering that a proper solution for a dispute cannot disregard the particularities pertaining to such a specific dispute. Indeed, it is arguable that this approach finds confirmation also in the practice of international commercial arbitration when the issue of the constitutionality of applicahle law has emerged