An affidavit of law is a certificate of custom concerning the existence, content and interpretation of foreign law (diplomatie.gouv). Its function is to inform and certify the legal status of a particular state. It is presented to French courts and legal authorities.
Who can apply for an affidavit of law?
Anyone can request the issue of an affidavit of law (legal interest is not examined, but in practice it is the person who has a close interest in a given decision who seeks to obtain this document). The certificate of custom may also be requested by the authorities in charge of the proceedings, but in the case of a conflicting rule, it is the party intending to invoke this rule who must provide the French authorities with proof of an alternative rule in force in another country. It should be emphasized that the presentation of a certificate of custom does not automatically entail an obligation to comply with it. French authorities, and judges in particular, have the right, indeed the obligation, to verify the meaning and scope of foreign law and its sovereign interpretation.
Who can issue an affidavit of law?
As a general rule, an affidavit of law can be issued by an authorized person. A distinction must be made between a simple certificate and a certificate of custom.
The classic certificate attests (“attestation”) to a legal fact concerning a specific person (for example, civil status or the absence of circumstances precluding the possibility of marriage in the case of people wishing to marry in a foreign state) and is issued by the competent authority (for example, the civil registry office). The French embassy or consulate then issues the “certificate”, which is generally free of charge.
An affidavit of law, on the other hand, indicates the general rules in force in a given country and concerning a given issue (for example, a certificate of custom concerning the rules on child support under Polish law, or the rules on legal succession under Polish law). In this case, the interested party contacts the law firm of their choice or the law firm of the legal advisor’s office, asking them to prepare such a certificate. Thus, in practice, this document constitutes a kind of legal opinion, and the lawyer’s/legal advisor’s fee for preparing the certificate of custom arises directly from his contract with the client. When choosing a lawyer/legal advisor, it is important that he/she is able to prepare the document in French, as if the certificate of custom is prepared in Polish, the party will be obliged to bear additional costs associated with the sworn translation of the document.
In what areas of law can an affidavit of law can be applied?
Certificates of custom are not limited to specific areas. However, it is most often issued in family, inheritance or administrative matters.
An affidavit of law in practice
In practice, an affidavit of law is a presentation of the legal rules relevant to the claimant’s question. In the case of doctrinal disputes, interpretative rules and relevant extracts from legal commentaries should also be included. The purpose of the custom certificate is to provide an objective account of the rules (regulations) in force in a given country, in a given field. The certificate of custom must be free from the private opinions and interpretations of the lawyer or counsel who prepares the document.
