PROCEDURAL ISSUES IN INTERNATIONAL RESOURCE LITIGATION: PROOF OF FOREIGN LAW
| Jurisdiction | United States |
(Apr 1999)
PROCEDURAL ISSUES IN INTERNATIONAL RESOURCE LITIGATION: PROOF OF FOREIGN LAW
PARTNER
McCarthy Tetrault
Toronto, Ontario, Canada
Introduction
On the assumption that a foreign law is the law governing a contractual dispute, whether as a result of giving effect to an express choice of parties or as a result of the application of choice of law rules in the absence of an express selection by such parties, an obvious question that arises is how a court in which the dispute is being heard is to inform itself as to what such foreign law is in order to proceed to resolve a conflict between parties in accordance with such foreign law. Consider as an example an Ontario court whose members are trained in and experienced with principles and concepts of common law faced with resolving a contractual dispute governed (validly) by the laws of Indonesia, laws which are in a foreign language and involve principles and concepts rooted in a civilian system.
In this paper I propose to provide the reader with a summary overview of the Canadian common law approach to proof of foreign law and the applicable supporting case law. Having referred specifically to a "Canadian" approach I should emphasize that the Canadian judicial system is composed of individual provincial bars and judiciaries (with lawyers qualifying to practice in individual provinces) and that each respective jurisdiction has developed its own case law in both this and other areas. Therefore, although it is certainly accurate to survey principles generally applicable in the Canadian common law system, it would be inaccurate to state that these principles are the "Canadian" law in this area. As the author is qualified to practice law in the province of Ontario, the focus of the matters and case law set out below is primarily on the common law approach and principles that have evolved in Ontario courts in respect of these issues.1
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Refusal to Apply Foreign Law
Before proceeding to highlight certain elements involved in the proof of foreign law, it should be noted that there will be instances where courts will not apply foreign laws even if such law is considered a valid choice made by the parties and can be proven. Specifically, the courts will not apply foreign penal laws,2 foreign revenue or tax laws (either directly or indirectly). Also, courts will not apply foreign laws which are contrary to fundamental public policy of the lex fori.
Proof of Foreign Law
Necessity for Proof of Foreign Law
• Foreign law is a question of fact and requires proof in the same manner as other questions of fact.3
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• Foreign law must be pleaded and proved.4
• Foreign law must be pleaded and proved by the party who wishes to rely upon it.5
• Generally Canadian courts cannot take judicial notice of foreign law and generally in the absence of any evidence of the foreign law, a court will presume it to be the same as the lex fori.6
• Courts have held that parties may waive impliedly the application of foreign law by omitting to plead and prove it in which case the lex fori shall apply.7
• Foreign law is a question of fact, however, the effect of the foreign law upon the rights of the parties is a question of law which is for the court to determine.
Pleading of Foreign Law
• Pleadings must set forth clearly and in summary form a statement of the foreign law.8
• If a foreign statute is pleaded, the pleadings must also contain with reasonable certainty the particular statutory provision upon which the party wishes to rely.9
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• Foreign law may be proved by admission in the pleadings.
• The burden of proving foreign law lies with the party who intends to rely upon it.
Manner of Proof
• Foreign law must be proven in court by properly qualified witnesses, is normally proven by the oral evidence of an expert witness and may be proven by affidavit...
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