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United Kingdom: The Traditional Approach to Foreign Law in Civil Litigation in the Legal Systems of the United Kingdom

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Treatment of Foreign Law - Dynamics towards Convergence?

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 26))

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Abstract

The legal systems in the United Kingdom adopt an adversarial approach to judicial proceedings and consider the application and proof of foreign law as depending upon the rules of civil procedure and the law of evidence. In principle, it is for the parties to disclose the international character of a particular dispute that leads to the application of conflict-of-law rules, and in turn, to plead, and, if disputed, prove, the foreign law that may be applicable following such conflict-of-laws rules. This chapter examines the application of foreign law in the courts of the United Kingdom from a theoretical and a practical perspective. It argues that the positioning of foreign law is crucial to the adjudication of a dispute in international civil and commercial litigation and as such a core aspect of Private International Law (Conflict of Laws) methodology. It submits de lege ferenda that in certain circumstances the ability to take judicial notice of foreign law could provide the courts in the United Kingdom with ‘another tool in the case management toolbox’ if done with regard to the functional differences between the pleading and proof of foreign law by the parties, and applying foreign law ex officio. Such a possibility – even if used only in exceptional cases- could further enable the courts to provide a more efficient, cost-effective and fair case management.

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Notes

  1. 1.

    England and Wales share a single legal jurisdiction.

  2. 2.

    See R. Fentiman, Foreign Law in English Courts, Oxford University Press, Oxford, 1998, 2–3.

  3. 3.

    D. McClean and V. Ruiz Abou-Nigm, Morris, The Conflict of Laws, 9th edn Sweet & Maxwell, London, 2016, para 1–009.

  4. 4.

    The origins of this rule are early: Fremoult v Dedire (1718) 1 P.Wms. 429; see further D. McClean and V. Ruiz Abou-Nigm, Morris, The Conflict of Laws, 9th edn Sweet & Maxwell, London, 2016, para 1–009.

  5. 5.

    Mostyn v. Fabrigas (1774)1 Cowp 161, 174 (per Lord Mansfield); Bumper Development Corpn. V. Comr. of Police [1991] 1 WLR 1362, 1368 (CA). Scotland: Stuart v Potter, Choate and Prentice [1911] 1 SLT 377.

  6. 6.

    Parkasho v Singh [1968] P 233 per Cairns J at 250. See also Dalmia Dairy Industries Ltd. v National Bank of Pakistan [1978] 2 Lloyds Rep 223 per Megaw LJ at 286.

  7. 7.

    R Fentiman, ‘Foreign Law in English Courts’, [1992] LQR 142, 143. See Fentiman latest work on this topic in R Fentiman, International Commercial Litigation (2nd edn, OUP, 2015) Ch. 20, 666–706.

  8. 8.

    Bumper Development Corp Ltd. v Metropolitan Commissioner of Police [1991] 1 WLR 1362, 1367 et seq.

  9. 9.

    Macmillan Inc. v Bishopsgate Investment Trust Plc (No 4) [1999] CLC 417. See R. Fentiman, Foreign Law in English Courts, Oxford University Press, Oxford, 1998, 201–202.

  10. 10.

    Parkasho v. Singh [1968] P. 233, 250 (per Sir Jocclyn Simon P.); Dalmia Dairy Industries Ltd. v. National Bank of Pakistan [1978] 2 Lloyds Rep. 223, 286 (CA); Grupo Torras SA v Al Sabah [1996] 1 Lloyd’s Rep 7, 18 (CA); Bumper Development Corpn. V. Comr. of Police [1991] 1 WLR 1362, 1368 (CA); The Saudi Prince [1988] 1 Lloyd’s Rep 1, 3 (CA); A-G of New Zealand v Ortiz [1984] AC 1. See S Geeroms, Foreign Law in Civil Litigation, Oxford University Press, Oxford, 2004 at 4.49-4.54 and 5.68-5.87.

  11. 11.

    “4. Evidence of foreign law.

    (1) It is hereby declared that in civil proceedings a person who is suitably qualified to do so on account of his knowledge or experience is competent to give expert evidence as to the law of any country or territory outside the United Kingdom, or of any part of the United Kingdom other than England and Wales, irrespective of whether he has acted of is entitled to act as a legal practitioner there. (2) Where any question as to the law of any country or territory outside the United Kingdom, or of any part of the United Kingdom other than England and Wales, with respect to any matter has been determined (whether before or after the passing of this Act) in any such proceedings as are mentioned in subsection (4) below, then in any civil proceedings (not being proceedings before a court which can take judicial notice of the law of that country, territory or part with respect to that matter)-(a) any finding made or decision given on that question in the first-mentioned proceedings shall, if reported or recorded in citable form, be admissible in evidence for the purpose of proving the law of that country, territory or part with respect to that matter; and (b) if that finding or decision, as so reported or recorded, is adduced for that purpose, the law of that country, territory or part with respect to that matter shall be taken to be in accordance with that finding or decision unless the contrary is proved: Provided that paragraph (b) above shall not apply in the case of a finding or decision which conflicts with another finding or decision on the same question adduced by virtue of this subsection in the same proceedings.(3) Except with the leave of the court, a party to any civil proceedings shall not be permitted to adduce any such finding or decision as is mentioned in subsection (2) above by virtue of that subsection unless he has in accordance with rules of court given to every other party to the proceedings notice that he intends to do so. (4) The proceedings referred to in subsection (2) above are the following, whether civil or criminal, namely-(a) proceedings at first instance in any of the following courts, namely the High Court, the Crown Court, a court of quarter sessions, the Court of Chancery of the county palatine of Lancaster and the Court of Chancery of the county palatine of Durham; (b) appeals arising out of any such proceedings as are mentioned in paragraph (a) above; (c) proceedings before the Judicial Committee of the Privy Council on appeal (whether to Her Majesty in Council or to the Judicial Committee as such) from any decision of any court outside the United Kingdom. (5) For the purposes of this section a finding or decision on any such question as is mentioned in subsection (2) above shall be taken to be reported or recorded in citable form if, but only if, it is reported or recorded in writing in a report, transcript or other document which, if that question had been a question as to the law of England and Wales, could be cited as an authority in legal proceedings in England and Wales”. See also Practice Direction (Foreign Law Affidavit) [1972] 1 WLR 1433 and Non-Contentious Probate Rules 1987, r.19.

  12. 12.

    K J Hood, ‘Drawing Inspiration? Reconsidering the Procedural Treatment of Foreign Law’ [2006] JPIL 181,185.

  13. 13.

    See R Fentiman, International Commercial Litigation (2nd edn, OUP, 2015) 666–706; K J Hood, ‘Drawing Inspiration? Reconsidering the Procedural Treatment of Foreign Law’ [2006] JPIL 181,185.

  14. 14.

    Neilson v Overseas Projects Corporation of Victoria Ltd. [2005] HCA 54.

  15. 15.

    See D. McClean and V. Ruiz Abou-Nigm, Morris, The Conflict of Laws, 9th edn Sweet & Maxwell, London, 2016, para 1–009.

  16. 16.

    See T C Hartley, ‘Pleading and Proof of Foreign Law: The Major European Systems Compared’, (1996) 45 ICLQ 271, at 290–1. See also R Fentiman, ‘Foreign Law in English Courts’, [1992] LQR 142, 150–152.

  17. 17.

    However, this has been criticised, especially in relation tostatus cases. See eg RD Leslie, ‘Domestic Law Rules?’ (1990) 35 Journal of the Law Society of Scotland 475.

  18. 18.

    R. Fentiman, Foreign Law in English Courts, Oxford University Press, Oxford, 1998, 282.

  19. 19.

    R Fentiman, International Commercial Litigation (2nd edn, OUP, 2015) 672.

  20. 20.

    Ibid, referring to Re Duke of Wellington [1947] 1 Ch 506, at 515; Blue Sky One Ltd. v Mahan Air [2010] EWHC 631 (Comm) at [88]; First Nationwide v Revenue and Customs Commissioners [2011] UKUT 174 (TCC) at [62].

  21. 21.

    Pollock, Expansion of the Common Law (1904, Stevens & Sons, London) 33–34.

  22. 22.

    Eg Maintenance Orders Act 1950, s. 22 (2). See also Art. 14 of the Convention on the Civil Aspects of International Child Abduction 1980 (‘Hague Child Abduction Convention’) as in force in the United Kingdom pursuant to Pt I of the Child Abduction and Custody Act 1985. Art. 14 establishes that ‘In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable’ (emphasis added).

  23. 23.

    Saxby v Fulton [1909] 2 KB 208, 211.

  24. 24.

    Elliot v Joicey [1935] A.C. 209, 236; MacShannon v Rockware Glass Ltd. [1978] A.C. 795, 815, 821. Although these cases are from the House of Lords, the UK Supreme Court has stated that it will follow the same practice. See Perry v Serious Organised Crime Agency [2013] 1 AC 182, para 101. See also G Maher, ‘Judicial notice and statute law’, (2001) 117 LQR 71.

  25. 25.

    Douglas v Brown (1831) 2 Dow. & Cl. 171 (HL); Cooper v Cooper (1888) 13 App. Cas. 88. Although these cases are from the House of Lords, the UK Supreme Court has stated that it will follow the same practice.

  26. 26.

    Beatty v Beatty [1924] 1 KB 807.

  27. 27.

    See Dicey, Morris and Collins, The Conflict of Laws, 15th edn, Sweet & Maxwell, London, 2012, para 9-009 at 322 and the jurisprudence referred therein.

  28. 28.

    Re Cohn [1945] Ch. 5 (German Civil Code).

  29. 29.

    See, inter alia, R Fentiman, International Commercial Litigation (2nd edn, OUP, 2015) 700–702.

  30. 30.

    For example, in cases involving immovable property, registered interests, or the consequences of incorporation (see R Fentiman, International Commercial Litigation (2nd edn, OUP, 2015) 666).

  31. 31.

    Di Sora v Phillipps (1863) HLC 624; Bumper Development Corpn. V. Comr. of Police [1991] 1 WLR 1362, 1369 (CA).

  32. 32.

    Although the United Kingdom Supreme Court, when dealing with the law of another part of the United Kingdom, does have judicial notice of that law.

  33. 33.

    Bumper Development Corp v Commissioner of Police of the Metropolis [1991] 1 WLR 1362, 1369.

  34. 34.

    As Lord Mansfield said in Mostyn v Fabrigas ‘the way of knowing foreign laws is by admitting them as facts’ (1774) 1 Cowp 161, 174. See R. Fentiman, Foreign Law in English Courts, Oxford University Press, Oxford, 1998, 66.

  35. 35.

    Duke of Portland v Topham (1864) 11 H.L.C. 32.

  36. 36.

    See P. R. Beaumont and and P.E. McEleavy, A.E. ANTON, Private International Law, 3rd edn W. Green, Edinburgh, 2011, para 27.174 and the jurisprudence cited therein.

  37. 37.

    Sanderson v Armour, 1922 S.C. (HL) 117, 127.

  38. 38.

    Macmillan Inc. v Bishopsgate Investment Trust Plc (No 4) [1999] CLC 417.

  39. 39.

    Re Parana Plantations Ltd. [1946] 2 All ER 214; Szechter v Szechter [1971] P 286; Concord Trust v Law debenture Trust Corp Plc [2005] UKHL 27.

  40. 40.

    Ganer v Lanesborough (1790) Peake 25; Bumper Development Corpn. V. Comr. of Police [1991] 1 WLR 1368 (CA).

  41. 41.

    Bumper Development Corp v Commissioner of Police for the Metropolis [1991] WLR 1362.

  42. 42.

    [1999] CLC 417, 424.

  43. 43.

    Evidence (Colonial Statutes) Act 1907, s. 1(3).

  44. 44.

    This is pursuant to UK statutory provisions to that effect: Jasiewicz v Jasiewicz [1962] 1 W.L.R. 1426. See Dicey, Morris and Collins, The Conflict of Laws, 15th edn, Sweet & Maxwell, London, 2012, para 9-022 at 330.

  45. 45.

    Civil Procedure Rules, SI 1998/3132, rule 35.7.

  46. 46.

    Administration of Justice Act 1920, s.15. In England and Wales, for the High Court see Senior Courts Act 1981, s. 69 (5).

  47. 47.

    Studd v Cook (1880) 8 R. 249 at 252; see P. R. Beaumont and and P.E. McEleavy, A.E. ANTON, Private International Law, 3rd edn W. Green, Edinburgh, 2011, para 27.178 and the jurisprudence cited therein.

  48. 48.

    Welsh v Milne (1844) 7 D. 213; see P. R. Beaumont and and P.E. McEleavy, A.E. ANTON, Private International Law, 3rd edn W. Green, Edinburgh, 2011, para 27.178 and the jurisprudence cited therein.

  49. 49.

    Mortimer v Nicol (1835) 14 S. 94.

  50. 50.

    P. R. Beaumont and and P.E. McEleavy, A.E. ANTON, Private International Law, 3rd edn W. Green, Edinburgh, 2011, para 27.178 and the jurisprudence cited therein.

  51. 51.

    Parnell v Walter (1889) 16 R. 917.

  52. 52.

    [1999] CLC 417, 424.

  53. 53.

    P. R. Beaumont and and P.E. McEleavy, A.E. ANTON, Private International Law, 3rd edn W. Green, Edinburgh, 2011, para 27.184.

  54. 54.

    A/S Tallinna Laevauhisus v Estonian State Steamship Line (1947) 80 Lloyd’s Rep 99, 108 (CA).

  55. 55.

    Duchess of Buckingham v Winterbottom (1851) 13 D. 1129 at 1146; cf. Baird v Mitchell (1854) 16 D. 1088 and Higgins v Ewing’s Trustees 1925 S.C. 440 at 449.

  56. 56.

    Nelson v Bridport (1845) 8 Beav 527, 541; Concha v Murietta (1889) 40 Ch D 543 (CA); Lazard Bros v Midland Bank Ltd. [1933] AC 289, 298 (HL).

  57. 57.

    See R Fentiman, International Commercial Litigation (2nd edn, OUP, 2015) 683.

  58. 58.

    Practice Direction 35, para. 11. This practice is not yet developed in England.

  59. 59.

    Civil Procedure Rules, Pt 44, rule 44.3 (4) and (5).

  60. 60.

    Civil Procedure Rules, rule 34.4 (4) (party’s expert’s fees and expenses).

  61. 61.

    Civil Procedure Rules, rule 44.5 (3).

  62. 62.

    P. R. Beaumont and and P.E. McEleavy, A.E. ANTON, Private International Law, 3rd edn W. Green, Edinburgh, 2011, para 27.180.

  63. 63.

    See Dubai Bank Ltd. (No. 5) v Galadari, 1990 cited by M Sychold in the United Kingdom report prepared by the Swiss Institute of Comparative Law, The Application of Foreign Law in Civil Matters in the EU Member States and its Perspectives for the Future (available at http://ec.europa.eu/justice/civil/files/foreign_law_en.pdf).

  64. 64.

    See Dicey, Morris and Collins, The Conflict of Laws, 15th edn, Sweet & Maxwell, London, 2012, para 9-018 at 328 and the jurisprudence referred therein.

  65. 65.

    Ibid para 9-019 at 329.

  66. 66.

    Ibid. Bumper Development Corpn Ltd. v Metropolitan Police Comr [1991] 1 WLR 1362.

  67. 67.

    Dicey, Morris and Collins, The Conflict of Laws, 15th edn, Sweet & Maxwell, London, 2012, para 9-030 at 334 and the jurisprudence referred therein.

  68. 68.

    P. R. Beaumont and and P.E. McEleavy, A.E. ANTON, Private International Law, 3rd edn W. Green, Edinburgh, 2011, para 27.171; cf. Wilmington Trust Co. v Rolls Royce Plc, [2010] CSOH 157 at [20].

  69. 69.

    Conceptually the existence of a presumption of similarity has been questioned by Fentiman. See R. Fentiman, Foreign Law in English Courts, Oxford University Press, Oxford, 1998, 147.

  70. 70.

    Dicey, Morris and Collins, The Conflict of Laws, 15th edn, Sweet & Maxwell, London, 2012, para 9-025 at 332 and the jurisprudence referred therein.

  71. 71.

    Morgan Grenfell & Co Ltd. v SACE [2001] EWCA Civ 1932 at [53].

  72. 72.

    Morgan Grenfell & Co Ltd. v SACE [2001] EWCA Civ 1932 at [53], see R Fentiman, International Commercial Litigation (2nd edn, OUP, 2015) 674.

  73. 73.

    See R Fentiman, International Commercial Litigation (2nd edn, OUP, 2015) 704.

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  1. Edinburg of Law School, University of Edinburgh, Old College, South Bridge, Edinburgh, EH8 9YL, UK

    Verónica Ruiz Abou-Nigm (Senior Lecturer in International Private Law)

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Correspondence to Verónica Ruiz Abou-Nigm .

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  1. Graduate School of Law, Kyoto University, Kyoto, Japan

    Yuko Nishitani

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Ruiz Abou-Nigm, V. (2017). United Kingdom: The Traditional Approach to Foreign Law in Civil Litigation in the Legal Systems of the United Kingdom. In: Nishitani, Y. (eds) Treatment of Foreign Law - Dynamics towards Convergence?. Ius Comparatum - Global Studies in Comparative Law, vol 26. Springer, Cham. https://doi.org/10.1007/978-3-319-56574-3_17

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