Proof of Foreign Law

Foreign law treated as question of fact, but “fact of peculiar kind” (Parkasho v Singh)

  • Treated as question of fact b/c it must be pleased, proved, ascertained according to evidence of expert witnesses; but its differs b/c appellate courts more inclined to interfere w/ findings of trial judge (not appeals do not ordinarily deal w/ questions of fact)
  • Appellate courts more inclined b/c such evidence not based on judge’s perception of witnesses, but on interpretation, assessment of documents, expert witnesses which appellate court has at their disposal (quality of evidence not an issue)
  • Courts take judicial notice of peculiar facts
  • Saxby v Fulton: P lent D money to play roulette table in Monte Carlo; question: whether P could recover in En where roulette, gambling illegal; although illegal in En, legal in Monte Carlo; statute in En did not regard such gambling contracts as null, void; court took notice that gambling was legal in Monte Carlo

How is foreign law proved? Evidence must be that of qualified experts in foreign law; insufficient for court reports, foreign law statutes; competent experts must interpret, give evidence as to meaning of foreign law (Sussex Peerage Case)

  • De Bratt v De Bratt: court held that mere citation of definition of community property in affidavit of p insufficient to constitute proof of foreign law; court required assistance of lawyer, qualified in foreign law
  • Witnesses competence determined by local court; previously must have practical experience, now include academic knowledge
  • Bristow v Sequeville: action brought for return of money P paid to D; P put in evidence certain unstamped receipts that D signed in Cologne; it became necessary to prove law enforce in Cologne; D called witness, jurist, legal advisor to Prussian Consul in En; witness stated he studied at Leipzig University; he knew from studies that Code Napoleon applied to Cologne; held: witness who never practiced foreign law incompetent to give evidence on it
  • Competent witness was lawyer practicing law in foreign legal system or profession whose experience exposed him to practical experience in relevant foreign law; increasingly academics are recognized as competent
  • Brailey v Rhodesia Consolidated Ltd: issue involved application of law of Southern Rhodesia to affairs of company incorporated there; Mr. Lee, reader in Roman Dutch Law at Council of Legal Education, London, gave evidence on law; had only academic knowledge, not practiced law in Southern Rhodesia; he made special study of Roman Dutch law in order to teach it to students intending to study there; court held he was sufficiently competent to give evidence
  • Roywest Trust Corporation v Savannah NV: judge allowed evidence from P’s witness an academic, professor of law, author of book on company law in sixth edition, member of editorial boards; and from D’s witness two lawyers, partners in law firm, one lecturer, holder of postgraduate degree; “each eminently qualified”
  • En S4(1) Civil Evidence Act 1972: person who is not practitioner can give evidence; “hereby declared that in civil proceedings, person suitably qualified to do so on account of knowledge, experience is competent to give evidence… irrespective of whether he has acted or entitled to act as legal practitioner there”
  • Barbados S6 Evidence Act: opinion of person admitted as expert if based wholly or substantially on knowledge gained by training, study, experience (no specific legislation on competence of expert witnesses – Bar allows academics)
  • T&T Evidence Act Chap7(2): provides that En law of evidence applicable; but law restricts incorporation prior to Aug 30, 1962 – thus CL position in Brailey v Rhodesia Consolidated Ltd (academics and practitioners allowed) in force
  • None-lawyers, The Sussex Peerage Case:testimony of Roman Catholic Bishop as to matrimonial law of Rome accepted as knowledge of such law was essential to performance of his official duties
  • Similarly, in Re The Goods of Dhost Aly Khan: b/c no professional lawyers in Persia, evidence admitted of Persian diplomat based in London after it was proven diplomatic staff were trained in Persian law
  • Guerin v Polux: testimony of hotel-keeper in London, native of Belgium, formerly commissioner of stocks in Brussels, admitted to prove Belgian law on promissory notes; view was that his business made him conversant w/ commercial law
  • Cooper-King v Cooper-King: court admitted evidence of ex-governor of Hong Kong as expert to prove marriage law
  • Admissibility of previous decisions of local courts as to foreign law: at CL En courts do not admit previous En decisions as to meaning of foreign law as evidence of foreign law
  • Previous decision seen as another courts view as to matter of facts, the fact being the state of foreign law (may change)
  • S4(2)(a) Civil Evidence Act UK: modifies position; previous decision reported or in citable form shall be admissible in evidence for purpose of proving law of that foreign country (this is not in force in Caribbean, CL position obtains)
  • Role of court: expert evidence may be oral or by affidavit; expert may refer to statutes, codes, decisions, treaties; courts may examine those materials to decipher their meaning, even if expert is un-contradicted by other experts
  • Courts generally not allowed to conduct its own investigation into foreign law; should be reluctant to reject expert evidence, where un-contracted; however, where evidence absurd, extravagant, obscure court has power to reject
  • McCarthy v McCarthy (Jam):Grahman Perkins J: generally court bound to accept expert witnesses, should not conduct own investigations… however, clear line of authority to show there is no inflexibility about this rule… where… un-contradicted evidence is extravagant, obscure, court may reject, examine statute or decision, form its own conclusion
  • Burden of proof: BOP lies on party who assert foreign law; where party fails to adduce sufficient evidence of foreign law to enable judge to form opinion, court will apply local law
  • Callwood v Callwood: Great Thatch Island in BVI owned by late husband of respondent; she domiciled both at time of marriage and his death in St Thomas, at time a Danish colony; in absence of express settlement of property of spouses, Danish law provided community of property (belonged to surviving spouse); respondent argued Danish law applied to Great Thatch Island and thus she entitled to property; appellant argued he entitled to island under En law, lex situs, in that land devolved to him as only son, heir of deceased; PC held onus on R to prove Danish law, she failed to do so; Lord Jenkins: question is one of fact; onus on P to prove it
  • Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd: contract contained clause that provided Dutch law applied; neither party pleaded Dutch law; court determined case w/o taking Dutch law into account; applied En law
  • Warner Brothers Picture Inc v Nelson: P, Warner Brothers brought action for injunction restraining actress Betty Davis from breaching undertaking not to act for anyone else w/o P’s consent during time she was acting for P; En court granted injunction, applying En law; no party pleaded applicability of American law; court acted on presumption of local law
  • National Commercial Bank Jamaica Ltd v Guyana Refrigerators Ltd: P, Guyana manufacturer, sold refrigerators to Jamaican company; payment was by wire transfer in US to P’s US bank accounts thru National Commercial Bank in Jamaica; b/c foreign exchange control regulations in Jamaica, remittance sent in Guyana dollars; money sent by airmail rather than wire transfer; when it arrived 10 days later, Guyana dollar devalued by almost 100%; P alleged breach of contract since money sent by airmail rather than post; PC: terms of contract allowed bank to send money by post; local courts, PC applied Jamaican law only; parties did not plead foreign law; law might have been different b/c in US courts place great emphasis on expectations in commercial transactions

Why apply foreign law?

  • To give effect to parties intentions: parties ought to be able to choose which law should apply to given contract
  • To give effect to parties legitimate expectations: if person expects that contract should mean something, then it should
  • Certainty and predictability: if parties chose foreign law, court should apply that law since it is in parties interest that applicable law should be easily ascertainable, w/o recourse to litigation
  • Producing uniformity: applying foreign law, task of PIL, minimizes discrepancies b/w different legal systems, discouraging forum shopping