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
- 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.
- 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.
- 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.
- 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: –
- Expert opinion