Proof of Foreign Law (L25) Flashcards
What is the requirement for proof of foreign law?
Must be pleaded and proved to the court. Foreign law is considered a matter of fact. This is different in some other legal systems.
What is judicial knowledge?
Scots judged are deemed to have knowledge of Scots law.
As far as Scots courts are concerned, English law is treated as foreign law.
Only exception is the UKSC. Presumed to know all UK legal systems.
Elliot v Joicey 1935.
Recognised the HoL had knowledge of all UK legal systems.
What is judicial notice?
Foreign law is well known so the judge can admit a point without express proof of the foreign law. Accept it as evidence without prove.
Saxby v Fulton [1909].
The point in issue what whether a particular gambling contract was illegal. Point of the law of Monte Carlo. The judge admitted it is famous that gambling is legal there.
Foreign law in UK courts is a question of fact, not law. Which case shows this?
Kolbin & Sons v Kinnear & Co 1930.
What is the manner of proof i.e. what ways can the foreign law be proven?
Admission in the pleadings.
Submission of expert evidence.
Remit to a foreign court/lawyer for an opinion.
Which statutes provide for a remit to the foreign court/law?
Evidence (Colonial Statutes) Act 1907.
UK court can receive statutes that have been passed by the legislature of ‘any British quessetion’.
British Law Ascertainment Act 1859.
Extends across Commonwealth countries. Can have that country confirm its law for the court of the UK.
1986 London Convention.
European convention. One contracting state could ask another contracting state for an opinion on a point of law. NOT implemented.
What is the submission of expert evidence for proof of foreign law?
A person who is suitably qualified to do so on account of his knowledge or experience, is competent to give expert evidence on the law of any country outside the UK or inside the UK.
Regardless if they practice law in that jurisdiction.
This is ONLY a written rule in England.
Works in Scotland under the common law.
What does DNO Oman Ltd v Clouston [2019] tell us about the submission of expert evidence for proof of foreign law?
Action raised seeking damages alleging breach of delictual obligations, specifically under UAE civil code laws. Appeal went to the CSIH.
Lord Carloway said foreign law must be proved as a matter of fact. This often means parties use experts to explain the foreign law rules and principles. The task of ascertaining the law is still a task for the court. The court will have to look at the written materials and decide for itself what the law has been decided to be.
What does Ted Jacobs Engineering v Morrison [2019] tell us about the submission of expert evidence for proof of foreign law?
Scottish business bought over a Dubai company. To do this, it had to be involved in the documents of the UAE law. Pursuers raised action against two individuals who they said were responsible for the wrongful acts of the seller, and that this was the case under Dubai law. Lord Bannatyne answered the question in favour of the pursuers.
Appeal on the basis that the judge misinterpreted Dubai law. Company said it is not for the appeal court to determine the correctness of the interpretation by the first instance judge.
Court held the appeal court is entitled to come to a different conclusion than the first instance judge.
‘[12] … The question is what the relevant foreign law is, and that is an issue that must ultimately be decided by the court, not the experts. … the function of the experts is not to decide the foreign law but to assist the court in the exercise of its function of deciding the case before it.’
Where the experts disagree, the court examines their views and comes to its own conclusion. This is true in abstract, but it’s also true in the application of the foreign law.
Court can and should have regard to the primary sources available to it.
One expert was more convincing than the other.
What does Mayfly v Swire [2022] tell us about the submission of expert evidence for proof of foreign law?
Action by one Brazilian subsidiary company against another, point of Brazilian law in dispute.
Lord Braid specifically refers to the CSIH reasoning in Ted Jacobs.
What does Pryde v Proctor and Gamble Ltd [1971] tell us about the consequences of the failure to prove the foreign law where no plea is made?
If no plea is made, the domestic law of the forum will apply by default.
Lord Hunter said that in this instance, the Scottish court must decide the case based on the law of the forum.
What does Rodden v Whatlings Limited [1961] tell us about the consequences of the failure to prove the foreign law where the plea simply fails?
Failure to prove, presumption that the foreign law is the same then operates.
“Where … a pursuer is not expressly founding on some specialty of foreign law, the presumption for him, and against him, is that the law applicable to the case does not differ from Scots law” (per Lord Walker at 97).
What were the facts of FS Cairo (Nile Plaza) LLC v Brownlie [2021]?
Case brought by a lady. Her and her husband were both UK citizens and residents. They had gone on holiday to Egypt. Staying in a Cairo hotel operated by the defendant. Booked an excursion through the hotel, chauffer driven trip. During this, the car crashed and they were injured, the husband was killed. She decided to bring a claim in England, both under contract and tort. Claim made under Egyptian applicable law. No particulars of the Egyptian law were pleaded. Litigation was a spat about jurisdiction. Related to the English national rules of jurisdiction.
What does FS Cairo (Nile Plaza) LLC v Brownlie [2021] tell us about the consequences of the failure to prove the foreign law where the plea simply fails?
Where the foreign law is applicable to an obligation, the English court can apply English law by default if neither party pleads the foreign law.
Separate to that default rule, there is the presumption, which is part of the law of evidence. In the absence of evidence to the contrary, the foreign law will be presumed to be the same as the domestic law.
It is part of the English law of evidence that, in the absence of evidence to the contrary, foreign law is presumed to be the same as English law. BUT there is no warrant for applying that presumption unless, in the circumstances of the case, it is reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matter in issue, meaning that any differences between the two systems were unlikely to lead to a different substantive outcome.
What does Benkert UK Ltd v Paint Dispensing Ltd [2023] tell us about the consequences of the failure to prove the foreign law where the plea simply fails?
[58] The presumption is that foreign law coincides with Scots law unless the contrary is proved.
Opinion (Lord Pentland): in the absence of proof or averments in the pleadings as to the content of the foreign law, the presumption that foreign law coincided with Scots law unless the contrary was proved had not been displaced.
