域外法查明引入第三方法律查明平台的可行性及问题分析

Analysis of Feasibility and Problems of the Third—party Platform of Ascertainment of Law Introduced to the Courts' Proof of Foreign Law in Foreign—related Cases

涉外民商事案件1当事人约定准据法适用域外法后,法院作为查明和确定准据法内容的责任主体,无法轻易回避域外法查明难题。查明现状的不乐观、查明途径的局限以及法院审查责任过重,使得法院有必要引入第三方法律查明平台来协助查明工作。而最高人民法院2005年《第二次全国涉外商事海事审判工作会议纪要》2对法院可引入第三方平台的首次明确,以及深圳市蓝海现代法律服务发展中心3等境外法律查明机构的成立,也令平台的引入成为可能。基于法院有必要且有可能引入第三方平台这一前提,文章从平台的适用案件类型、引入阶段、平台与专家资质要求、费用承担、预期效果,尤其法院与平台间关系定位及责任区分来对平台引入可行性进行分析。

After the parties in the foreign-related civil and commercial cases make an arrangement for the choice of foreign law as the applicable law, the court, with the responsibility to ascertain and determine content of the applicable law, cannot avoid the tough problem of proof of foreign law. The tough situation of work of proof of foreign law, the lack of ways of it and the heavy responsibility of examination for the court leads to the necessity to introduce the third-party platform of ascertainment of law to assist the court＇s work. Both the first-time confirmation of the introduction of the platform to the court by the summary of the Second National Foreign-related Commercial and Maritime Trial Work Conference published by the Supreme People＇s Court in 2005, and the establishment of the first platform of ascertainment of foreign law named Benchmark Chambers International makes the introduction of platform to the court come true. Based on the premise that the court is of necessity and possibility to introduce the platform, the passage analyses the feasibility of the platform from the aspects of the types of cases, the stages of introduction, the qualification of the platform and the experts, the absorbability of the costs, the anticipated effects and the orientation and responsibility between the court and the platform.