CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ WITH OR WITHOUT PRIVATE INTERNATIONAL LAW … could have, however, been used to reach the opposite outcome as well (as outlined above). Instead, the Regional Court based establishment of the competence of the Special Civil Registry on an internal memo of the Ministry of Interior and a scientific article, which, as argued above, grossly interferes with the basic principles of Czech administrative law. Interestingly, the Supreme Administrative Court, i.e. the highest authority to adjudicate cases regarding application of Czech administrative law, did not correct this non-doctrinal reasoning of the Regional Court. This aspect stresses the fact that policy outweighed legal doctrine in this adjudication. 7. Conclusions The article aimed to comment on an important case in the field of Private International Law adjudicated in the Czech Republic in 2018. The importance of this case consisted in the fact that it was the first case dealing with recognition of foreign matrimonial union of different normative qualities than are the normative qualities of a marriage under Czech substantive law. It was decided at the level of the Supreme Administrative Court, which has the adjudicative authority in guiding the adjudication of lower courts and administrative bodies in future cases of the same or similar nature. The case deserves attention in the light of the rising focus of European scholars on application of PIL among EU member states in cases of cross-border status recognition. With the expanding migration among EU states, but also from third states to the EU, the member states have the opportunity to define how they wish to apply PIL to these novel culturally challenging cases. It can be expected that similar cases will become more frequent in the future. The opportunity to broaden or narrow the doctrine of recognition under PIL in the hands of the national courts lies precisely in the adjudication of novel cases like the given case. The fact that migration volume is rising and novel cases like the given case are emerging more frequently does not imply that states have to be open to new forms of family unions and to apply foreign law more willingly. Approaches of national legal protectionism, evolved from primary consideration to provisions of substantive law of the forum, are just as legitimate as liberal, individual rights-oriented approaches to application of foreign law under the PIL framework. However, what novel cases require and what the national PIL doctrine offers instruments for, is an approach of adjudication aware of the fact that what is being done is broadening or narrowing the existing PIL doctrine. This approach should consider the existing doctrine and try to interpret the applicable law with consideration of the basic principles of the doctrine and with an attempt to interpret those deductively. Novel cases are usually more exposed to judicial discretion and thus to application of extra-legal informants, as the deductive legal reasoning might not provide unambiguous or convincing outcomes. The given case included some policy arguments but remained wanting in defining the doctrinal base, limits and principles. Given that the present adjudication will have authoritative power over future cases, in fact as much authoritative power as the continental legal system allows (except for possible adjudication of Constitutional Court), it can be seen as a missed opportunity by the Supreme Administrative Court to develop a convincing doctrinal argumentation to redefine the limits of national PIL and the conditions of its application by the administrative bodies. This is even more true considering that, even though the core of the case lied within

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