IURA NOVIT CURIA WHAT DOES IT MEAN? EXCEPTIONS - ARTE - 2025

Iura novit curia is a Latin term that means "the judge knows the law." The legal system of civil law has understood this Latin aphorism as the authority of the judge or the courts to base their decisions on legislation that has not necessarily been invoked by the parties to the dispute.

This principle allows the judge to base his decision on the legislation he deems pertinent. You can also change the legal basis of the claims of the parties always following the law. There has been an evolution over the time of the iura novit curia thanks to which the principle has been concretized and has acquired value.

Even jurisprudence declares the identity of the iura novit curia as valid. There is a need to reaffirm the preponderance of the law, without hindrance or limitation; that is, the litigants can argue how they consider the process adequate, but it is the judge who determines which is the applicable law in each case. It is your prerogative and your responsibility.

Interpretation and arbitration of iura novit curia

There are various difficulties in the interpretation and international arbitration of iura novit curia, specifically in the interaction of the principle with two particular aspects of the interpretation: the autonomy of the parties and the uniformity in the application by choosing the law; contradictions appear that must be balanced.

The law chosen by the parties is not operative

The question is to what extent iura novit curia should apply in the context of arbitration, and this is not resolved by the parties' choice of underlying law. This is for two main reasons.

First, the procedural rules of national law do not apply in the context of arbitration. In fact, most arbitration tribunals follow predetermined rules of procedure which, if selected by the parties to the contract, prevail over national rules of procedure.

Thus, to the extent that iura novit curia is a procedural rule, the parties' choice of law does not resolve the question of its applicability in the arbitration context.

Second, arbitration has different laws from litigation. For example, the English Arbitration Act 1966 states that an arbitral tribunal shall resolve a dispute in accordance with the law chosen by the parties, or any other consideration agreed or determined by the tribunal.

So to the extent that iura novit curia is not a procedural rule, it is unclear how much the parties should be able to modify the contract arbitrators' mandate.

Against the use of iura novit curia in arbitration

Arbitration clauses have become commonplace in the trade agreement environment. Although there are no reliable data, studies referring to the frequency of arbitration provisions in international commercial contracts show that 90% of international contracts contain them.

It is important to remember that arbitration is composed and regulated according to the agreement of the parties. Without an agreement between the commercial parties, no arbitration panel has jurisdiction over a dispute that may arise between those parties. Therefore, autonomy between the parties is the center of arbitration.

It is this essential aspect of arbitration that makes the application of iura novit curia difficult. If the parties to an arbitration proceeding, the existence of which is entirely based on the exercise of autonomy by those parties, do not invoke a particular legal regulation to the arbitration panel, why should the panel do so itself?

In fact, much of the appeal of arbitration lies in the autonomy of the parties to exercise control over the choice of law and the procedure that will be applied in possible future disputes.

So it is logical that a proactive and vigorous use of iura novit curia in an arbitration proceeding could dissuade commercial parties from agreeing to submit future disputes to arbitration.

The autonomy of the parties, as the central concept of arbitration, clearly goes against a comprehensive application of the principle of iura novit curia in arbitration proceedings.

Exceptions to the iura novit curia

The iura novit curia may be subject to exceptions; For example, the law may require courts to bring certain questions of law (such as the constitutionality of a statute or the application of European law) to the review of a specific court (such as a constitutional one or the Court of Justice of the Communities European).

The procedural codes may also regulate that the court may turn to the parties or experts to prove or determine any applicable foreign law.

For example, in customary law countries the rule is iura aliena non novit curia; that is, judges cannot rely on their own knowledge of foreign law, but the party relying on it must prove it.

In civil law systems the same rule generally applies in relaxed ways. Judges can (or should to the extent possible) conduct their own investigations of applicable foreign law.

Other exceptions recognized by doctrine and law

-The custom that is applicable in the absence of law in that case. In any case, the custom has to be proven according to article 1 of the Civil Code.

-The International Legal Standards, when they are not directly applicable until their publication in the Official State Gazette according to section 5 of the same article 1 of the Civil Code.

The basis of these exceptions is that the judge not only does not have to be aware of the rules that are particular, but also sometimes has no way of knowing about them; hence it is up to the parties to know and determine the particular applicable rules.

References

1. Cezary Wishiewki (2016) Arbitration, Iura novit curia. Arbitrationblog.kluwerabritration.com
2. Herbert Smith (2010). Iura novit curia vs the right to be heard. Oxford Journals.
3. Ali Assareh (2011) Iura novit curia. Bloglaw.nyu.edu
4. Aaron Fellmeth (2011) Guide to latin international law. Oxford references
5. Wikipedia. Iura novit curia.