Application of Foreign Law

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Knowledge of foreign law cannot be imputed to judges. On the contrary, the party must prove it like any other fact. Sometimes the parties can agree to leave the investigation to the judge and waive the right to present evidence. As a general rule, foreign law must be proven by means of expert evidence.

Before 1972

  • Can only prove foreign law by means of expert evidence.
  • The rule of foreign law cannot be proven by citing an earlier decision of an English court on the same foreign law.
  • Cannot prove by production of any book / bare copy act of foreign law.
  • Cannot prove by a judgment of a foreign court.

Civil Evidence Act 1972

  • If a question of foreign law is decided in a civil or criminal case before the High Court / Crown Court / Court of Quarter Sessions / Court of Chancery / Privy Council etc., then it is admissible in civil proceedings if recorded in citable form.
  • In other cases, the Court may take judicial notice.
  • Parties cannot produce evidence without authorization and notification to the other party of their intention to do so.

Exceptions to Question of Fact Rule

  • When the Court must take judicial notice
  • When foreign law is notorious law

Saxby vs Foulton, 1909

  • Playing roulette is not illegal in Monte Carlo. Since this is a well-known law, it is not necessary to prove the same.
  • The court can take a judicial opinion if the content of the foreign law is very similar to English law. For example, English men carry English law with them to the colonies wherever possible, so that the Courts can take judicial notice of it.
  • When hearing appeals from colonies or dominions such as Scotland.
  • No need to prove foreign law when admitted, as was the case in Moulis v Queen.
  • When both parties ask the Court to decide a case without proof of foreign law, especially when the issue relates to the interpretation of foreign law, as observed in Beatty vs Beatty, 1924.
  • In very rare cases, the Court will apply foreign law without proof as observed in the Re Cohn case.

Mode of proof

No specific answer as to who can be an expert witness.

  • De Beeche Case: – Bank Manager
  • Cooper – King case: – Governer General of a Colony
  • Dairymple Case: – Learned Professor
  • Goods of Dost Ally Khan Case: – Embassy Official
  • Goods of Whitelegg Case: – Notary Public
  • Goods of Oldenburg Case: – Ambassador
  • Susen Peerage Case: – Bishop

Section 4 (1) of the Civil Evidence Act 1972 provides that academician / scholar can also give evidence on the foreign law.

  • Di Sora vs Phillipps Case: – The English Court cannot examine suo moto foreign law, but if one of the parties calls an expert witness, who offers a copy of the foreign law or case law, the Court is free to pursue it.

Can pursue any foreign book submitted as part of foreign law evidence.

  • Buerger vs. New York Life Assurance: It has been ruled that uncontradicted expert evidence is generally accepted, although the Court is not required to do so. Foreign law evidence also includes interpretation, but the Court is free to set its own interpretation using the English rules of construction and interpretation. When the issue involves a political decision, expert testimony will not matter, the issue will be guided by the Foreign office of its own government.