Proof of Foreign Law in Private International Law

Author - Sudipto Sircar

The multifaceted process known as globalization has increased the frequency with which courts are called upon to decide foreign law issues. The basic principle of the common law tradition is that facts are international laws, not rules. Accordingly, a common-law judge is not able to know or explore foreign law.

In this article we will be discussing the application of foreign law in private International Law.

Usually, a court is required to determine two sets of questions: fact and law. On the former, the parties adduce facts, both oral and documentary, on which the issue is based. The court takes judicial note of land law in the latter and parties are not required to prove it. Typically the same set of questions emerge in a case where some external factor has. Personal international laws vary in this matter from the various countries of the world. It must, however, be pleaded and proved as a fact in most jurisdictions, generally by expert evidence. An expert witness is someone who has devoted time and study to a particular branch of learning and is therefore particularly skilled at those points where he is asked to state his opinion.

Implications of 'Proof of Foreign Law'

There may be cases where a foreign law issue arises in an internal legal dispute. The parties to the dispute, however, have a choice whether or not to introduce the foreign law, as pleading it is entirely voluntary. The judge has neither the right nor the responsibility to do that ex officio. Through encouraging litigants to turn a court case into a domestic one effectively, it renders the conflict of laws "a voluntary body of law" itself.

International law is seen as a matter of fact in most courts around the globe, including India, and is usually proven by expert evidence. Italy and Germany are the few countries that take the view that the question of the application of foreign law is a question of law in precisely the same way as it is in a purely internal case, thereby placing the duty of the courts to find out the foreign law processes. Though proof of foreign law is a matter of fact, the effect of that law on the parties ' rights is a matter of law. 

Law & Practice in Foreign Jurisdictions

Position in England

Throughout Britain, courts generally depend on the advice of expert evidence on what foreign law is about a matter. In such a case, the court must apply English law in the absence of sufficient proof of foreign law.

Position in Australia

In Australia, unlike countries such as the UK, Canada and New Zealand, it is usually impossible to take judicial note of foreign law as a matter of fact which must be argued and proved. Once, these pleadings are generally made with the help of expert witnesses and their supporting material. The courts are prohibited from performing their inquiries.

Position in Canada

For Canada, too, international law is viewed as a matter of fact. In general, a judicial note shall not be taken of foreign law unless allowed by statute. The 1970 Manitoba Evidence Act Statute requires each court to make a proper record of the laws and judicial proceedings of some part of the British Empire or the United States.

Indian Laws: Judicial Jottings

In a matter, the Supreme Court held that it was not possible to prove Japanese law by affidavit testimony, and that proof should be led as in a jury. Likewise, a question arose in Re: Goods of D McIntyre as to whether a holograph made in Scotland was legitimate as the testator was domiciled in Scotland; The court declined to rely on a treatise on Scottish law but acknowledged a lawyer's expert evidence in Scotland. However, in a later decision, an Indian court was more flexible and held that there was no need to call expert testimony to appreciate Ceylon's law as the court could itself apply and interpret the Code of Civil Procedure provisions as in force in Ceylon.

The Supreme Court has held that it could lodge an appeal against the Securities Appellate Tribunal's order under S. 15Z of the Securities and Exchange Board of India Act, 1992, as the question that arose, namely, Whether the laws of France or India were applicable, the Supreme Court referred the findings in Cheshire & North, 'Personal International Law' and the English judgments of Parkasho v. Singh and Dalmia Dairy Industries v. National Bank of Pakistan to that conclusion.

Application of foreign law in India

An important question arises here: Can Indian courts apply foreign law ? Indian courts do not decide on the consequences of failing to prove the laws of a foreign law which is said to be valid. Since Indian rules on the burden of proof are similar to those in English law, our Indian courts applying foreign law will likely take the same view as English courts.

In India, therefore, foreign law can be proved by expert evidence under S. 45, or a court can take judicial note of a publication containing foreign law if it is published under government authority. The court can approve the law as set out in such publication. It should be noted that when such a publication is relied upon as evidence of foreign law, then the publication is not the proof that it incorporates all the law and expert testimony may still be required in such cases.

Conclusion

Another primary ground of criticism is that a foreign law expert evidence will be chosen to give the party paying him a favorable view, rather than a fair, dispassionate account. The judges will likely be insulted by the "war of the experts," which will lead them to dismiss the testimony of the two opposing witnesses as they see them as similarly disreputable. A possible response to these issues lies in the experts appointed to the court system. The risk of such an appointment, though, is that the jury will blindly respond to such an expert's facts.