Foreign Law

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Whenever a lawsuit is brought before the court, two types of questions arises: –

  • Question of law
  • Question of fact

The same procedure is followed for all cases with a foreign element. Here yet another question arises: –

  • How should foreign law be treated?
    • Should foreign law be applied?
    • Should foreign law be excluded?

If the decision is made to apply the foreign law, then it must be decided whether the foreign law should be treated as: –

  • a question of fact or
  • a question of law.

Five different approaches

Italy

  • Treats foreign law in the same way it treats its own domestic law, i.e. as a question of law.
  • Jura Novit Curia – the Court knows the law.

Germany

  • Treated as a matter of law but not on the same footing as its own domestic law.
  • Thus, even if the foreign law is binding in nature, it is only secondary to that of its own law.
  • It is the duty of the courts to ascertain this ex officio without being limited to the legal arguments put forward by the parties.
  • The court can also ask the parties for help to verify it, but the court is not bound by the same.

France

  • Foreign law is treated as a question of fact.
  • The Court has no obligation to know this and it is not its duty to ascertain this ex officio.
  • The burden of proving the foreign law and its content lies with the relying party.
  • If you know the foreign law, the court can apply it.
  • But, the Court is free to take independent measures to verify the content of foreign law.

Soviet Union

  • Uses the inquisitorial system, so will take steps to verify the facts.
    • The court can verify the parties.
    • Take judicial notice if possible.
    • Strive to establish ex officio, through other channels such as the Ministry of Justice, request information from foreign governments, etc.

Common law countries including India

  • The question of foreign law is a question of fact
  • The burden of proving the foreign law lies exclusively with the relying party.
  • The parties can prove by: –
    • Evidence
      • Oral
      • Documentary
    • Expert opinion