Establishing Foreign Law Source: Gerhard Dannemann: Establishing Foreign Law in a German Court, German Law Archive,

The English position on proof of foreign law: Following principles: (1) Foreign law is a fact, so that –(i) foreign law must be pleaded and –(ii) proved unless e.g. it is admitted, (2) to the satisfaction of the judge; (3) in general, foreign law must be proved by –(i) expert evidence (usually by foreign practitioners), while –(ii) the court will not conduct its own rersearch; (4) the burden of proof lies on the party who bases his claim or defence on it; if this party fails, the court will apply English law.

Continental (Civil law) system 1 Foreign law is treated as law. Courts must apply foreign law once the private international law rule points to a foreign law, regardless of what the parties plead. Courts must establish foreign law ex officio. In doing so, courts are not bound by any submissions of the parties. Courts will frequently conduct their own research.

Continental (Civil law) system 2 In taking evidence, courts are not limited to experts; anything can be used as evidence of foreign law. Courts appoint experts on foreign law and tend to favour academics over foreign practitioners. No presumption operates as to the content of foreign law. Courts must apply foreign law even if its position cannot be established with certainty, but if the content of foreign law remains unknown, it should apply its own law (lex fori).

1. Foreign Law Treated as Law If private international law points to a foreign law, the court must disclose this to the parties. However, if both parties plead under the law of the court, courts may this as a choice of law by the parties. Such agreements are valid only to the extent that the private international law allows parties to choose the applicable law, which is mainly the case in contracts and torts.

continued This excludes in particular most questions relating to company, property, family and inheritance law. The main difference in the treatment of national and foreign law is therefore that courts are required to know their own (national) law (iura novit curia), including private international law, but are not required to have knowledge of foreign law, which therefore can be established by hearing evidence.

2. Establishment by the Courts The courts are obliged to take of their own motion all reasonable steps to establish foreign law. No evidence needs to be heard if the court knows the foreign law. English law: foreign law may sometimes be judicially noticed as a notorious fact, e.g. that roulette is not unlawful in Monte Carlo. Courts are authorized and sometimes expected to conduct their own research into foreign law.

They can often rely on literature on foreign laws. For example, extensive and rather up to date documentation on foreign family and inheritance laws is available and commonly used by practitioners and courts alike, so that usually experts will be appointed only in complicated family or succession law cases. Parties are free to bring forward their own evidence. This includes expert opinions on foreign law. However, a party which calls on its own expert risks to go home with the costs for this expert even if this party eventually wins the case, while the costs for a court appointed expert follow the event.

3. Methods of Proof As regards establishing foreign law, courts are free in their choice of evidence. Evidence can therefore include –information obtained from a foreign embassy, –textbooks, –court decisions or –expert opinions from other proceedings.

All these methods seem appropriate under English law provided that parties agree on them. More serious or complicated cases: the court will appoint an expert. Who shall be the expert? –a professor of comparative law, –a foreign practitioner. If the academic expert is unable to establish the foreign law as practised by the courts in this country, the court should appoint a foreign expert = risk of unreliability The court and either party can require the expert to attend the hearing and explain the opinion. Courts are free to rely on the European Convention on Information on Foreign Law.

4. Content and Application of Foreign Law Foreign law must generally be applied the same way as it is applied by the courts in the country in question. It is therefore generally not sufficient to rely on textbooks and statutes. German and apparently also English courts are authorized to develop the law as the foreign court presumably would. However, German courts will do this only in cases of necessity. –The general rule has been aptly described by Goldschmidt: courts are architects in the application of their own law, and photographers in the application of foreign law.

No presumption operates about the content of foreign law. Traditional English rule that in absence of evidence to the contrary, foreign law is presumed to be the same as English Only if there is no way of establishing the position of foreign law are German courts relieved from applying this law = very exceptional! Courts will apply their own (national) law.

5. Conclusions Three main differences between English and Continental legal systems: a) whether the application and content of foreign law are at the disposition of the parties, b) whether the parties or the court must investigate foreign law, and c) which types of experts are employed.

a) The English system which allows parties to decide whether or not foreign law should apply to their case is based on the frequent equation of jurisdiction and applicable law, in particular in family law matters. Foreigners who live in England will therefore either obtain no divorce in this country or a divorce under English law

b) The fact that courts are under the duty to establish foreign law is similarly related to the goal of international legal harmony, i.e. that judgments involving foreign law should generally be recognizeable and enforceable abroad.

c) Whether foreign practitioners or local academics are better suited as experts on foreign law is difficult to say and depends on the legal environment and the individual circumstances of the case.