1. Legal Transplant

2. Definitions
“As the moving of a rule or a system of law from one country to another, of from one people to another”
Alan Watson
“Legal transposition”. The transposition occurs to suit the particular socio-legal culture and needs of the recipient
Legal Transfers: The horizontal and vertical movement of laws and institutional structures.
Esin Örücü
“legal borrowing”
”Borrowing” of ad hoc legal rules
Grosheide
“imitation”
A selective adoption of particular legal institutions or rules
Rodolfo Sacco
acculturation occurs only when one legal institution or only one law is transferred from one legal system to another, whereas reception refers to adopting one entire legal system en bloc.
legal acculturation refers to both reception and legal transplants (and the overall diffusion of law)
Jean Carrbonier

3. History
The term ”Legal Transplant” coined in 1974 by Alan Watson – a Scottish-American legal scholar .
Legal transplant occurred in most countries during the 19th and early 20th century.
Expansion of European influence through war and conquest was primarily responsible for transplantation of laws to countries in Asia, Africa, North and Latin America.
Examples in history: England, French, Russia and Germany

4. Reasons Imposition Prestige Efficiency Chance Conquests
French law after 1806
Imposition
Complete adoption - Pandectists
German Law
Prestige
Financial transactions & Contracts
English Law
Efficiency
Former USSR
Russian Transition
Chance

5. Adoption Adaptation Direct transplant through conquest
Transplant through Colonization
Possibility of legal acculturation
Adaptation
Voluntary legal transplant
Adapt laws based on local variations
Law of model compared with the socio-cultural factors of recipient

6. Development of Law and Legal Transplants
Generally, legal systems are developed through legal transfers.
Watson states that law develops by transplanting, not because some such rule was the inevitable consequence of the social structure and would have emerged even without a model to copy, but because the foreign rule was known to those with control over lawmaking, and they observed the apparent merits that could be derived from it. 
Legal transplants in diverse cultural, socio-economic and political contexts are important to examine for determining the desirability and applicability of such transplants for legislative and judicial practice.

7. Theories of Legal Transplant: Transferists and Culturalists
Though the debate is often called “a dialogue of the deaf”, it however provides a useful basis for the study of legal transplants.
Pierre Legrand took up the position of the culturalists in the 1990s by arguing that law and culture are inextricably linked.
Forms that culture embrace are derived from historical experiences.

8. Transferist Culturalist1.
Transplant is necessary for legal change. Very little in law is original
Law is originally linked to culture, as it is culturally determined. 2.
Law can traverse cultural boundaries even when the recipient country is different form the donor system.
Law cannot traverse cultural boundaries 3.
People can easily adapt to laws and legal rule borrowed from another system
Law as cultural artifacts cannot induce the same behaviour in different societies. 4.
Law and society are two separate notions. Law is autonomous from the society in which it operates.
Law and culture are inextricably linked.

9. Legal Transplant in Malaysia
Legal Transplants can be imposed by colonization or voluntary.
Malaysia received British commercial legislation and common law during the period of British colonial rule.
The former British colonies including also retained many transplanted British law and legal institutions, although post-independence political and cultural imperatives have to varying degrees slowly changed both the substance and jurisprudential basis of law in these countries.

10. Relevance of the Culturalist-Transferist debate to the Malaysian legal system
Implications of the two theories: Law itself is transplanted in both.
Whenever lawmakers observe a good law elsewhere, they may decide to copy and adapt it to local situations.
The “middle ground” theory is applicable here. Some areas of law are more or less related to certain social processes. And establishing a nexus between those areas of laws transplanted and the social processes (representing the cultural element) explains the level of coupling between the two paradigms.
There is no doubt that this interaction between the transplanted system and the social processes of the host leads to new divergences.

11. Foreign Law in the Malaysian Courts

12. Outline Foreign Law vs. Comparative Law
Different Dimensions of Foreign Law in the Malaysian Courts
The Usefulness of Comparative Law in Malaysian courts
Comparative Law and Conflict of Laws

13. Foreign Law vs. Comparative Law
A law of another jurisdiction belonging to any of the recognized legal families.
Has no effect outside such foreign jurisdiction
Foreign Law
Study of the similarities and differences between the laws of two or more countries, or between two or more legal systems.
Not a system of law or a body of rules, but rather a method or approach to legal inquiry
Comparative Law

14. Different Dimensions of Foreign Law in the Malaysian Courts
Legislative Interpretations
Relevant English Law
Case Law
Cases with Foreign elements
Enforcement of Foreign Judgments / Awards
S. 3 Civil Law Act 1956
Conflict of Laws Issues

15. The Usefulness of Comparative Law in Malaysian courts
The Malaysian laws promote the use of comparative law in legal practice.
Lawyers and judges actively utilize foreign law in normal court proceedings.
In most cases, they inadvertently act as comparatists.
Legislative provisions that are in pari materia are construed with reference to each other and in similar fashion.
Judgments of foreign courts in which the law is in pari materia are persuasive but not binding
It is more convenient to rely on foreign law but it may pose its own challenges, particularly when the parties dispute the existence of a particular foreign law – expert witnesses are required.

16. Comparative Law and Conflict of Laws
Conflict of Laws = Private International Law
Conflict of law exists when there is foreign element in a case before a Malaysian court.
Judges and lawyers compare local laws and foreign laws with a view to finding the differences and similarities.
When the application of Malaysian law becomes in possible in a case with foreign elements, conflict of law arises.
The court must choose the appropriate law to the matter before it.

17. Guidelines for determining the applicable law
Classifying or characterizing the cause of action
Identifying a connection factor which indicates the country whose law is to be applied.
Using the connecting factor in accordance with the generally accepted principles of Malaysian conflict of laws.