Establishing the Content of Foreign Law: A Comparative Study
| Published date | 01 March 2013 |
| Author | Shaheeza Lalani |
| Date | 01 March 2013 |
| DOI | 10.1177/1023263X1302000105 |
| Subject Matter | Article |
20 MJ 1 (2013) 75
ESTABLISHING THE CONTENT OF
FOREIGN LAW: A COMPARATIVE STUDY
S L*
ABSTRACT
It is in response to the need for certaint y and consistency that systems of regulation and law
are created to govern the conduct of people of a community, society, nation or state. With
in cr e as e s i n t h e e a se of c ro ss - bo rd e r m ov e me nt a nd ac t iv i ty , a s w e ll a s g lo b al co m mu ni c at io n ,
parties and courts are more frequently being ex posed to systems of regulation and law that
are foreign to them. is, in turn, creates uncertainty regarding not only the ability of
national courts to correctly apply foreign law, but also the quality of evidence relating to
the content of foreign law. Relevant studies conduc ted for the Hague Conference on Private
International Law and the European Commission have classi ed states according to their
treatment and application of foreign law. e author of this article focuses instead on the
most common methods used to ascertain foreign law, and using a much larger sample of
states, argues that there i s little value in classifying di erent approaches.
Keywords: comparative law; con ict of laws; foreign law; private i nternational law
§1. INTRODUC TION
How can we appreciate something which i s completely foreign to us? What i f that which
is foreign to us runs the risk of disturbing the harmony and logical structure of what
we know ?1 ough expansionism gave rise to an early illustration of the application
of foreign law in domestic courts, courts have never before been called upon as o en
* Barrister a nd Solicitor, PhD University of Lausanne , Senior Research Fellow, World Trade Institute,
University of Bern. e author would li ke to thank Professor Andrea Bonomi, as well as all of the
experts who veri ed information contai ned in this article. eir names , education, bar memberships
and/or professional ex perience have been lis ted according to their s peci cations in t he footnotes.
1 S. Vrellis, ‘Überlegungen betre end die Auslegung fremder Rec htsnormen’, in J. Basedow et al.(eds.),
Private Law in the Inter national Arena – Liber Amicorum Kurt Siehr (TMC Asser Press, e Hague
2000), p.840.
Shaheeza Lalani
76 20 MJ 1 (2013)
to apply foreign law until now.2 As a result of merging economies, as well as increased
migration and travel,3 it is becoming routine for judges to be exposed to foreign law,
the application of which threatens to d isturb the harmony and logical str ucture of their
decisions.
A domestic case wit hout foreign elements is connected with only one state a nd requires
a court or tribuna l to apply law with which it is presumably fami liar. On the other hand, a
case in which foreign law could possibly cl aim application may raise complicated issues.4
Foreign law may, for instance, be applicable where contracting parties have made an
explicit choice regarding t he law applicable to their contractual relations. Luck ily, where
a dispute arises between these parties, the parties or their representatives are generally
well versed in the chosen foreign law and can provide the court or tribuna l with copies
of relevant legislation and case law, if not access to ex pert witnesses, who can shed light
on the content of the foreign law.5
Unless, for reasons relating to public policy, foreign law must be excluded, foreign
law may also be applicable by virtue of mandatory domestic private international law/
con ict-of-law rules. For instance, in Switzerl and, divorce and separation are governed
by Swiss law. However, Article61 of the Swiss Loi fédérale du 18décembre 1987 sur le
droit international privé states that if both spouses have the same foreign citizenship
and only one is domiciled in Switzerland, then the law of the state of their common
citizenship is applica ble. In other words, a Swiss court may be required to apply foreign
law on its own motion (ex o cio) without the parties invoking foreign law.
2 For a discussion of t he historical evolution of t he application of foreign law since t he Middle Ages, see
J.Erauw, ‘Something Fu nny Happened to Foreign Law on its Way to the Foru m’, in M. Sumampouw et
al.(eds.), Law and Realit y: Essays on National and Inter national Procedural Law in Ho nour of Cornelis
Carel Albert Voskuil (M artinus Nijho Publishers, e Hague 1992), p.64.
3 For related explanat ions regarding incre ased exposure to forei gn law, see M. Zhang, ‘Inter national civi l
litigation in China: a practica l analysis of the Chinese judicial system’, 25 Boston College International
and Comparative Law Re view 1 (2002), p.59–96; C.E. Meac ham, ‘Foreign Law in Trans actions Between
the United States and Latin Americ a’, 36 Texas International Law Journal 3 (2001), p. 507–523;
J.G.Sprank ling and G.R. Lany i, ‘Pleading and Proof of Foreig n Law in American Cour ts’, 19 Stanford
Journal of Inter national Law 1 (1983), p.3–97; and R.J. Miner, ‘ e Reception of Foreign Law i n the U.S.
Federal Cour ts’, 43 American Journal of C omparative Law 4 (1995), p.581–589.
4 See K. Zweigert, ‘Some Re ections on the Sociologica l Dimensions of Priv ate International L aw or
What is Justice in Con ict of L aws?’, 44 Colorado Law Review 3 (1973), p.283–299, citing O. Kah n-
Freund, ‘Delict ual Liabilit y and the Con ict of Laws’ 124 Recuei l des cours (1968), p.60–61. See also J.H.
Merryma n, ‘Foreign Law as a Problem’, 19 Stanford Journal of Inte rnational Law 1 (1983), p.151–173,
who points, at p.157, to increasin gly common cases invol ving the laws of states i n which English is not
spoken, the legal t radition is unl ike the Common Law and t he culture is non-Western: ‘i n other words,
where the law is in a ll senses truly “ foreign”’.
5 J.G.Sprankl ing and G.R. La nyi, 19 Stanford Journal o f International Law 1 (1983), p.45–47. See al so R.
Fentiman, Forei gn Law in English Court s: Pleading, Proof and C hoice of Law (Clarendon Press, Oxford
1998), p.182. Finally, see the Opinion of Jud ge Posner in Bodu m USA, In c. v. La Cafet ière, Inc., 621 F. 3d
624 (7th Cir. 2010).
Establishi ng the Content of Foreign Law: A Compa rative Study
20 MJ 1 (2013) 77
Where the application of the domestic private international law/con ict-of-law
rules is mandatory, courts inevitably have to apply these rules ex o cio,
6
though some
states distinguish between patrimonial and extra-patrimonial rights in this regard. In
these states, the application of the con ict-of-law/private international law rules are
mandatory only for matters relating to personal status, legal capacity and other such
‘indisposable’ or inalienable rights.
7
By contrast, in states where the application of the
con ict-of-law/private international law rules is facultative, courts will generally apply
the law of the forum (lex fori) unless one of the part ies raises the con ict-of-law issue.
8
Regardless of the nature of the con ict-of-law rules (facultative or mandatory), if a
court or tribuna l has no knowledge of the foreign law applicable to a particula r case,9 the
case may still be adjudicated ba sed on the lex fori. Of greater concern, however, is the fact
that courts or tribu nals with no knowledge of the applicable foreign law may adjudicate
cases based on a misu nderstanding or misapplication of the foreign law.10
In order to provide parties to cross-border disputes with at least some element of
procedural certa inty, legal scholars and practitioners have classi ed a selection of states
according to their treat ment of foreign law. In some studies, the categoriza tion is based
on the nature of the private international law/con ict-of-law rules;11 in ot hers, it is based
on the treatment of foreign law either as ‘law’, which the cour t or tribunal can investigate
on its own, or as ‘fact’, which must be est ablished by the disputing partie s.12
Whi le this a rticle uses cat egories ad opted in pr evious s tudies, it does so o nly in ord er
to update these studies on t he basis of recent legislation and jurisprudence. It suggest s that
6 Of the states studied herein, such is the case in Alba nia, Austria , Belarus, Belgium, Bosnia and
Herzegovina, Brazil, Bulgaria, Chile, China, Croatia, Czech Republic, Egypt, Estonia, Georgia,
Germany, Greece, Hungary, Italy, Japan, Jordan, Korea (Republic of), Lithuania, Montenegro,
Morocco, Netherlands, Paraguay, Peru, Poland, Portuga l, Romania, Russian Federation, Serbia,
Slovakia, Sloven ia, Spain, Sur iname, Switz erland, ( e Former Yugoslav Republic of) Macedon ia,
Turkey, Ukraine, Urug uay and Venezuela.
7 Of the states stud ied herein, such is the c ase in Argentina , Denmark, Ecuad or, Finland, France, Ice land,
Luxembourg, Me xico, Norway and Sweden.
8 Of the states studied herein, such is the case in Australia, Canada, Cyprus , India, Irela nd, Israel,
Latvia, M alaysia, Malta, Mon aco, New Zealand, Pa nama, Philippine s, South Africa, Sr i Lanka, United
Kingdom of Great Brita in and Northern Irel and and United States.
9 F. Bac hand, ‘ e “P roof” of Foreign Normative Facts W hich In uence Domestic Rules’, 43 Osgoode
Hall Law Journal 3 (20 05), p.269–288. See also K. Zweiger t, 44 Colorado Law Review 3 (1973), p.290.
Finally, see O. Kahn-Freund, General Problems of Private International Law (Sijtho & Noordho ,
Alphen aan den R ijn and Rockville 198 0), p.277.
10 A.N. Adler, ‘Translati ng and Interpreting Foreig n Statutes’, 19 Michigan Journal of Int ernational Law 1
(1997–1998), p. 37–108 writ es at p.96 , ‘a litt le know ledge [ab out forei gn law] fa res wors e than none’. See
also the survey by M. Rhein stein, cited in K.Zweigert, 44 Colorado Law Review 3 (1973), p.298, where
it is indicated t hat in40 cases where foreign l aw was pleaded, it was mis applied by the America n courts
in32 instance s.
11 See, for example , S.L. Sass, ‘Foreign Law i n Federal Courts’, 29 Americ an Journal of Comparative Law
1 (1981), p. 97–118 and G.T. Yates, ‘Foreign Law Before Domestic Tribunals’, 18 Virginia Journal of
International Law 4 (1977–1978), p.732–751.
12 See, for example, G.T. Yates, 18 Virginia Journal of Inte rnational Law 4 (1977–1978), p.735.
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