British Institute of International and Comparative Law
Pleading and Proof of Foreign Law: The Major European Systems Compared
Author(s): Trevor C. Hartley
Reviewed work(s):
Source: The International and Comparative Law Quarterly, Vol. 45, No. 2 (Apr., 1996), pp. 271292
Published by: Cambridge University Press on behalf of the British Institute of International and
Comparative Law
Stable URL: http://www.jstor.org/stable/760888 .
Accessed: 01/10/2012 00:03
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].
.
Cambridge University Press and British Institute of International and Comparative Law are collaborating with
JSTOR to digitize, preserve and extend access to The International and Comparative Law Quarterly.
http://www.jstor.org
PLEADING AND PROOF OF FOREIGNLAW:THE MAJOR
EUROPEAN SYSTEMSCOMPARED
TREVORC. HARTLEY*
I. INTRODUCTION
THOUGHgenerally uncontroversial in England, the rules on pleading and
proof of foreign law are nevertheless of interest from the comparative
point of view by reason of the diversity of approaches found in different
European countries. There is, moreover, a feeling on the part of some
Continental lawyers that the English rules undermine the objectives of
international and EU initiatives on conflict of laws and that the United
Kingdom does not, therefore, fully carry out its international and EU obligations in this regard. These accusations have been levelled in particular
with regard to the Rome Convention.' In view of this, a comparative study
of the different approaches in the main European countries might be
timely; it might also provide an appropriate background for an examination of the question whether the Rome Convention requires any modification of the traditional English approach.
II. COMPARATIVE OVERVIEW
the law in individual countries is considered, it might be helpful
to look at a few general questions from a comparative point of view.
BEFORE
A.
Applicability and Proof
Two questions must be distinguished at the outset: the applicability of
foreign law and the proof of that law. The first relates to the decision that
foreign law will be applied, the second to its ascertainment. There is of
course a close link between the applicability and the proof of foreign law:
if foreign law is not applicable, the question of proof does not arise; moreover, if failure to prove it results in the application of the lexfori, the effect
is the same as if the foreign law was not applicable. For this reason, it is
common for the same approach to be adopted to both; nevertheless, they
are distinct in theory and must be distinguished for correct analysis.
* Professor of Law, London School of Economics. This article was
originally written for a
meeting of the European Group for Private International Law held in Geneva from 29 Sept.
to 1 Oct. 1995. I would like to thank the other members of the group for their assistance:
without this it would have been impossible to write the sections on foreign law.
1. The Convention on the Law Applicable to Contractual Obligations, opened for signature in Rome on 7 Dec. 1981, O.J. L266/1.
271
272
International and Comparative Law Quarterly
B.
[VOL.45
Fact or Law?
It might be thought that a comparative analysis should begin with the division between those systems that regard foreign law as fact and those that
regard it as law. Though it may appear fundamental, this distinction is
actually of only limited importance, since few countries in either camp
accept the full consequences of their official position. Moreover, even if a
country regards foreign law as law, it will not necessarily treat it on a par
with forum law: it is law, but law of a different kind. Countries in the foreign-law-as-fact camp, on the other hand, may regard foreign law as "fact
of a peculiar kind",2not to be treated in the same way as normal fact. The
result is that there may be little difference in practice between the attitudes of the two camps to particular issues.
Appeals3 furnish an example. In most countries it is more difficult to
appeal on a point of fact than on a point of law. In the case of the highest
court, appeals on a point of fact may be impossible. The distinction
between fact and law is, therefore, important for the purpose of determining whether a right of appeal exists. However, a country that treats foreign
law as law will not necessarily allow appeals on points of foreign law to the
highest court.4On the other hand, there is at least one country in the foreign-law-as-fact camp where foreign law is treated almost the same as
forum law for the purpose of appeals.5
C. Application ex Officio
Should a court rule ex officio that foreign law is to be applied whenever
this is indicated by the relevant choice of law rule, or should it apply foreign law only at the request of one of the parties?6This seemingly simple
question raises deep issues concerning the nature of conflict of laws and
indeed the nature of the judicial process itself. Are choice of law rules of
the same nature as other rules of law? Is the role of a judge simply that of
an umpire refereeing a contest between the two parties or should he play
an active role in discovering the facts?
The argument normally put forward in favour of the proposition that a
court must apply foreign law ex officio whenever this is required by the
2. This is the position in England: see Parkasho v. Singh [1968] P. 223, 250.
3. The word "appeals" is used here in a broad sense to include such remedies as Revision
in German law and cassation in French law.
4. For Germany (appeals to the Bundesgerichtshof), see below; for the Netherlands
(appeals to the Hoge Raad), see the Wet Rechterlijke Organisatie (Judicial Organisation
Act), Art.99(1), point 2 (for limited exceptions, see H. U. Jessurun d'Oliveira, "Foreign Law
in Summary Proceedings", in Mathilde Sumampouw et al. (Eds), Law and Reality (1992),
p.119 at p.123).
5. England: see infra. The position regarding jury trials in England is also paradoxical.
6. The extent to which such a request must be made in a particular form varies from
country to country.
APRIL1996]
Foreign Law and European Systems
273
forum's choice of law rules is that such rules are just as binding as any
others; a judge would, therefore, be failing in his duty if he did not apply
foreign law, even if not requested to do so by one of the parties. This argument misses the point, however, since most countries have rules of domestic law that are applied by the courts only if invoked by a party: the fact
that a rule is legally binding does not necessarily mean that it must be
applied by a court of its own motion.
The principal argument on the other side is that proving foreign law is
time-consuming, difficult, uncertain and expensive: why should a court
impose these burdens on itself or on the parties if neither of the latter
wishes foreign law to apply? If both parties are content for the case to be
decided under the lex fori, possibly because they believe it to be the same
as the foreign law, it might be thought that the court should carry out their
wishes, unless public policy or some other such consideration requires
otherwise.
This is an issue on which the countries of Europe appear deeply divided.
In some, such as Germany, foreign law is regarded as law, its application is
determined ex officio by the court and its proof is in principle a matter for
the court; in others, such as England, foreign law is regarded as fact, it is
normally applied only if one of the parties so requests and the burden of
proving it rests on the party who pleads it: if it is not proved, the court will
apply the lexfori. In practice, however, the divide is not as stark as might
appear: most countries which require foreign law to be pleaded make
exceptions in certain cases, such as status; while countries which provide
for its ex officio application usually permit the parties to agree during the
course of the proceedings that the issue will be governed by the lex fori.
Such agreements are permitted only where the parties could originally
have chosen the applicable law, but in some countries the right to make
such a choice exists in many areas of the law.7
In order to assess the merits of the two approaches, we need to consider
the reasons why a system of conflict of laws should require the application
of foreign law. This is a difficult and complicated question;"nevertheless,
one can say that in some cases it is intended to benefit the parties (or one of
them), perhaps by upholding their reasonable expectations, in some cases
it is intended to uphold the interests of foreign States and in some cases it is
7. In the Netherlands e.g. such agreements are permitted whenever the case involves
patrimonial matters (vermogensrechtelijke zaken), a concept also applied to determine
whether a dispute is subject to settlement by arbitration:see Court of Appeal of 's-Hertogenbosch, 20 Feb. 1989, N.I.P.R. 1989, No.259 (contract concluded prior to the Rome Convention); District Court of Rotterdam, 8 Jan. 1979, N.J. 1979, 1134; N.I.L.R. 1981, p.63 (tort:
Rhine pollution); Hoge Raad, 19 Nov. 1993, N.J. 1994, 622; N.I.L.R. 1994, p.363 (note by H.
Duintjer Tebbens) (tort).
8. The literature is vast. The main works in English are cited and discussed in Cheshire
and North, Private International Law (12th edn, 1992, P. M. North and J. Fawcett (Eds)),
pp.27-40.
274
International and Comparative Law Quarterly
[VOL.45
intended to achieve other objectives. To the extent that the first of these is
applicable, it would seem unreasonable for the court to insist that foreign
law should be applied if neither party requests this. Where, on the other
hand, other considerations are paramount, it might be undesirable to
allow the parties to thwart these by not pleading foreign law.
Though clear in theory, this distinction is not easy to apply in practice.
Perhaps another way of putting it would be to distinguish between those
situations in which foreign law is applicable in order to serve the private
interests of the parties and those in which it is required by the public interest. This seems to be the idea behind the Swiss and Dutch concepts of a
patrimonial matter and the French concept of a matter in which the parties
have the "free disposition of their rights".9Such a concept tends to coincide with that used to determine whether a dispute may be settled by arbitration or by private agreement between the parties. The general
tendency, in those countries that make this distinction, is to regard contract, tort and property as areas of the law in which the interests of the
parties are paramount (though there may be exceptions) and to regard
status as being an area in which the public interest prevails.
D.
Proof
The two main approaches to the proof of foreign law are either to cast the
burden on one of the parties (usually, though not always, the one claiming
the application of foreign law) or to entrust this task to the court. As might
be expected, this split closely mirrors that on the ex officio application of
foreign law. In the former case, the most usual method of proof is through
the use of expert witnesses. In some countries the normal procedure is to
put a written opinion before the court (though the author may be called to
give oral evidence as well) and in others the emphasis is on oral evidence.
This depends largely on the traditions of the country concerned: the common law countries tend to favour orality-expert witnesses are subjected
to searching cross-examination in an attempt to discredit their testimony-while courts in civil law countries usually want to see a well-reasoned opinion. Whichever method is adopted, in a hard-fought case the
expert evidence is likely to conflict, with each party's witnesses propounding a view favourable to that party. The court then has to choose between
them.
Where the task of ascertaining the foreign law is given to the court, the
judge may rely on his own private research, or he may seek outside assistance, for example from a foreign lawyer or a research institute.
9. For the Dutch concept, see supra n.7; for the Swiss and French concepts, see the discussion of Swiss and French law, infra.
APRIL1996]
Foreign Law and European Systems
275
Where the parties have to prove the foreign law, they usually have to
pay the fees of the expert witnesses. In some cases this may constitute such
a strong disincentive that they may agree between themselves not to plead
foreign law. Where the task is given to the court, the costs normally come
out of public funds. This has the merit of protecting the parties from the
financial burden of obtaining expert evidence.
With these general considerations in mind, we now turn to a consideration of the law of individual countries.
III. GERMANY"'
IN Germany foreign law is regarded as law, not fact." It will be applied ex
officio irrespective of whether or not it is pleaded by the parties. The task
of ascertaining it rests with the court,12 which has a discretion as to the
means used.'3It should normally use all available sources of information.'14
It may ask the parties for assistance, particularly if they have access to the
relevant information.' If both parties are nationals of the country in question and agree on what the foreign law is, the court may accept their view
without further investigation,'6 though it is not bound to do so.'7
The most common method of ascertaining foreign law is through
10. This section is based on information, material and citations supplied by Professor Karl
Kreuzer.
11. See Jan Kropholler, Internationales Privatrecht (2nd edn, 1994), p.519; Christian von
Bar, Internationales Privatrecht, Vol.I: Allgemeine Lehren (1987), note 372; Reinhold
Geimer, Internationales Zivilprozef3recht(1987), note 2136; Peter Arens, Prozessuale Probleme bei der Anwendung ausliindischen Rechts im deutschen Zivilprozef3,Festschriftfiir Imre
Zajtay (1982), p.7 at p.8; Lorenz Fastrich, "Revisibilitht der Ermittlung auslandischen
Rechts" (1984) 97 Z.Z.P. 423,427; Erwin Riezler, Internationales Zivilprozef3rechtund prozessuales Fremdenrecht(1949), p.493; Geimer in Richard Z11ler, Zivilprozef3ordnung(19th
edn, 1995), ?293 ZPO note 14.
12. See Bundesgerichtshof, judgment of 21.02.1962, B.G.H.Z. 36, 348, 353; Bundesgerichtshof, judgment of 30.03.1976, N.J.W. 1976,1581,1582; Kropholler, idem, p.520; von Bar,
idem, note 373; Geimer (1987), ibid; Sonnenberger in Miinchener Kommentar zum Biirgerlichen Gesetzbuch, Vol.7: Einfiihrungsgesetz. Internationales Privatrecht (2nd edn, 1990),
Einl. note 453; Hartmann in Adolf Baumbach, Zivilprozef3ordnung(53rd edn, 1995), ?293
ZPO note 6; Fastrich, idem, pp.424 et seq.; Werner Geisler, "Zur Ermittlung auslandischen
Rechts durch 'Beweis' im prozeB3"(1978) 91 Z.Z.P. 176, 181 et seq.; Gerhard Kegel, Internationales Privatrecht (7th edn, 1995), pp.362 et seq. See also Gerardo Broggini, "Die Maxime 'iura novit curia' und das auslAndische Recht. Ein Beitrag zur Prazisierung des ?293
ZPO" (1956) 155 A.c.P. 469 et seq.
13. See Bundesgerichtshof, judgments of 23.12.1981, N.J.W. 1961,410; 10.07.1975, N.J.W.
1975, 2142, 2143; 30.03.1976, N.J.W. 1976, 1581; 16.10.1986, W.M. 1987, 25, 26; Kropholler,
idem, p.521; von Bar, idem, note 375; Geimer, idem, note 2138; Kegel, idem, p.363; Geimer
(1995), op. cit. supra n.ll, at note 15.
14. See Bundesgerichtshof, judgment of 24.11.1960, N.J.W. 1961, 411; H. DMlle,"Bemerkungen zu ?293 ZPO" in Festschriftfiir Arthur Nikisch (1958), p.195; Kegel, idem, p.316.
15. Geimer (1987), op. cit. supra n.ll, at note 2141.
16. Bundesarbeitsgericht, judgment of 10.04.1975, R.I.W. 1975, 521; von Bar, op. cit.
supra n.11, at note 373; Geimer, idem, note 2140.
17. See von Bar, ibid; Geimer (1995), op. cit. supra n.l, at ?293 ZPO note 17.
276
International and Comparative Law Quarterly
[VOL.45
personal research by the court itself (for example, by consulting textbooks). Where this is not possible, the court may consult an institute such
as the Max Planck Institute for Foreign Law and Private International
Law in Hamburg or one of the comparative law institutes at certain German universities. A collection of these opinions is published annually
under the title Gutachten zum internationalen und ausliindischen Privatrecht.The court may also use the 1968 Council of Europe Convention on
Information on Foreign Law; it may ask a German or foreign diplomatic
mission for information, or it may ask a foreign lawyer for information.
This last method is rarely used, though the parties themselves may put
such evidence before the court. Although the task of ascertaining foreign
law is given to the court, the parties are free, if they wish, to put their own
evidence before the court.
The parties to proceedings in Germany may agree that German law will
apply, and such an agreement will be accepted by the court provided that
the area of law is one in which, under the German rules of conflict of laws,
the parties could originally have chosen the applicable law. Such a right
exists mainly in the fields of contract and tort. If, in a case which would
otherwise be governed by foreign law, both parties plead only German
law, the courts often regard this as an implicit choice of German law,'8
though this approach has been subject to criticism by writers.19To the
extent that such an express or implied choice of law is possible, it puts
Germany in a similar position in practice to countries such as England,
though its limited area of application means that the differences are still
significant.
German law distinguishes between two kinds of appeal: Berufung, an
appeal to an intermediate court of appeal (an Oberlandesgericht), and
Revision, an appeal to the highest civil court, the Bundesgerichtshof. The
former may be on questions of either law or fact, but the latter may be only
on questions of federal German law.2"As a result, an appeal on a point of
foreign law may be made only to the intermediate court of appeal, not to
the Bundesgerichtshof.21
18. See Bundesgerichtshof, judgment of 18.01.1988, N.J.W. 1988, 1592.
19. See e.g. von Bar, op. cit. supra n.ll (Vol.II, 1991), at p.341.
20. Zivilprozef3ordnung,s.549(1).
21. There are certain qualifications or exceptions: e.g. if the trial court failed to appreciate
that foreign law was applicable; if it did not properly carry out its duty to ascertain it; if it
wrongly concluded that it was impossible to ascertain it; if the foreign law was retrospectively
changed after the trial court made its finding; if proper application of the foreign choice of
law rule would, under the renvoi doctrine, lead to German law; or if the jurisdiction of the
German court depended on a rule of foreign law. In addition, there is an exception in the field
of labour law.
APRIL1996]
Foreign Law and European Systems
277
IV. SWITZERLAND22
SINCEthey were considered matters of procedure, the pleading and proof
of foreign law were until recently governed by canton law. This varied
from canton to canton, but the tendency was for foreign law to
be regarded as a question of fact to be proved by the party relying on it.
With the adoption of the Federal Private International Law Act23of 18
December 1987, however, the pleading and proof of foreign law became
matters of federal law and were subject to unified rules throughout
Switzerland.
Article 16(1) of the 1987 Act states in bald terms that the court must
determine the content of foreign law ex officio.24 However, this is subject
to two exceptions. First, Article 16(1) goes on to provide that, in patrimonial matters, the court may place the burden of proving foreign law on
the parties:25if they then fail to discharge this burden, the lexfori will apply
by virtueof Article16(2);26in suchcases,therefore,the partiescansecure
the application of the lex fori by the simple expedient of declining to lead
any evidence on the foreign law. The second exception is that, where the
Swiss rules of private international law give them the right to choose the
governing law, the parties may enter into an agreement during the proceedings that foreign law will not be applied. In this case too, the lex fori
will apply.
The concept of a "patrimonial matter" in Swiss law appears to play an
equivalent role to that of the same concept in Dutch law (a "vermogensrechtelijke zaak")27or a "matter in which the parties have the free disposition of their rights" in French law.28In Swiss law "patrimonial matter"
has a wide meaning and covers any issue which has pecuniary value for the
22. This section is based on information and material provided by Professor Andreas
Bucher and Professor Kurt Siehr. See in particular Andreas Bucher, Droit International
Privd Suisse (1995), Vol.I/2, Partie Gindrale--Droit Applicable, ??360 et seq.
23. Loifeddrale sur le droit internationalprivd.
24. "Le contenu du droit dtrangerestetabli d'office." It is, however, provided that the court
may ask the parties for their assistance in this regard.
25. "En matierepatrimoniale, la preuve peut etre mise d la charge des parties." See Bucher,
op. cit. supra n.22, at ??375-379. It is not entirely appropriate to talk of the "burden of proof"
in this context; it is, rather, a matter of freeing the court from its duty to apply foreign law ex
officio: failure to prove foreign law does not result in a ruling against the party claiming a
right based on it, but merely in the application of Swiss law. It is interesting to note that the
provision quoted above was not in the original draft of the 1987 Act, but was added as an
amendment during its passage through the Swiss Federal Parliament. It was apparently a
compromise aimed at securing the acceptance of the general principle of application ex officio. It is possible that the provision will not apply when foreign law is applicable by virtue of
an international convention: Bucher, idem, ?381. It has also been suggested that it should not
be applied where this would jeopardise the objectives of the choice of law rule in issue: idem,
?380.
26. "Le droit suisse s'applique si le contenu du droit &trangerne peut pas etre &tabli."
27. See supra n.7.
28. See infra.
278
International and Comparative Law Quarterly
[VOL.45
parties. It seems indeed that the test is whether the plaintiff's motive in
bringing the action was a financial one.29
V.
FRANCE
IN France the law in this area is almost entirely judge-made and there is a
surprising number of decisions by France's highest civil court, the Cour de
cassation. Some of these have recently brought about major changes, and
one can expect further developments in the future.
A.
Application of Foreign Law"3
This is one of the areas in which the Cour de cassation has revised its position. In 1959 in BisbaPl the Court held that, since the French rules of
conflict of laws (at least where they require the application of foreign law)
are not a matter of public policy, it is for the parties to request the application of foreign law; if they do not, the trial court cannot be reproached
for not deciding ex officio that it is applicable. The case concerned a petition for divorce32and the applicable law was that of the nationality of the
parties. They were both Spanish citizens and, at the time, Spanish law did
not allow divorce. The trial court apparently knew they were Spanish, but,
since neither of them pleaded Spanish law, it applied French law and
granted the divorce. An appeal was made to the Cour de cassation on the
ground that the trial court should have applied Spanish law ex officio. It
was dismissed.
In 1960 the Cour de cassation made clear, however, that, even though a
court is not obliged to apply foreign law ex officio, it is nevertheless permitted to do so. This was in Compagnie algerienne de Credit et de Banque v.
Chemouny,33a case in which an appeal was taken to the Cour de cassation
on the ground that the lower court had applied foreign law ex officio. It too
was dismissed. The Cour de cassation also held that it had no jurisdiction
to consider whether the lower court had made a mistake in the application
of the foreign law.34
For many years these remained the leading cases. Recently, however,
29. Bucher, op. cit. supra n.22, at ?375.
30. This subsection is based on information and material supplied by Professor H61~ne
Gaudemet-Tallon.
31. Civ. 12 May 1959, D. 1960.610, note Malaurie; J.C.P. 1960.11.11733,note Motulsky;
Clunet 1960.810, note Sialelli; Rev.crit.dr.int.pr. 1960.62, note Batiffol; B. Ancel and U.
Lequette, Grands arrets de la jurisprudencefrangaise de droit internationalprivd (2nd edn,
1992), No.33.
32. A decree of judicial separation was already in force and the court was asked to convert
this into a divorce.
33. Civ. 2 Mar. 1960, Rev.crit.dr.int.pr. 1960.97;J.C.P. 1960.11.11734,note H.M.; Clunet
1961.408, note B.G.; Ancel and Lequette, op. cit. supra n.31, at No.34.
34. See infra.
APRIL1996]
Foreign Law and European Systems
279
the Cour de cassation has modified its position. It first held that in certain
special situations courts were obliged to apply foreign law ex officio;35then
in two cases decided in 1988, Rebouh and Schule,36 it changed course dramatically and held that, even where a normal conflict rule is in issue, a
court must decide ex officio whether foreign law applies: "The court must
decide the case according to the rules of law applicable to it.""7Failure to
do so could result in the decision being set aside on appeal.
These cases seemed to lay down a general rule that foreign law must be
applied ex officio in all circumstances. Subsequently, however, the Cour
de cassation moved to an intermediate position: in Coveco38it held that, if
the parties do not request the application of foreign law, the judgment
cannot be attacked on the ground that the court applied the lex fori. This
rule, however, applies only where the foreign law is not applicable by virtue of an international convention and where the case concerns an area of
the law in which the parties have the "free disposition of their rights".39
This represents the present law. The general rule is that the trial court is
not obliged to apply foreign law ex officio; the exception is that it must be
done in two cases: where the matter is governed by an international convention and where the parties do not have the "free disposition of their
rights". This latter concept is of great importance, though its precise
meaning is uncertain."'4The use of the French term "une matiere" (an area
of the law) suggests that we are concerned with fairly large sections of the
law, perhaps corresponding to the topics subsumed within a normal
choice of law rule.41It is possible that areas such as contract, tort and property (including matrimonial property and succession) will be regarded as
areas in which the parties have the "free disposition of their rights", while
status and capacity may be regarded as areas in which they do not.42
It is also uncertain whether, in a case in which the parties do have the
"free disposition of their rights"but which is governed by an international
35. Civ. 25 Nov. 1986, Rev.crit.dr.int.pr. 1987.383, note Ancel and Lequette; J.C.P.
1988.11.20967,note Courbe; and Civ. 25 May 1987, Clunet 1987.927, note Gaudemet-Tallon;
Rev.crit.dr.int.pr. 1988.60, note Lequette; J.C.P. 1988.11.20976,note Courbe.
36. Civ. 11 and 18 Oct. 1988, Clunet 1989.349, note Alexandre; J.C.P. 1989.11.21327,note
Courbe; Rev.crit.dr.int.pr. 1989.368; Ancel and Lequette, op. cit. supra n.31, at Nos 70 and
71.
37. "[L]e juge droit trancher le litige conformiment aux regles de droit qui lui sont
applicables."
38. Civ. 4 Dec. 1990, Clunet 1991.371, note Bureau; Rev.crit.dr.int.pr. 1991.558, note
Niboyet-Hoegy; Ancel and Lequette, op. cit. supra n.31, at No.72.
39. "[E]n une matidreodtles parties ont la libre disposition de leurs droits." See also Cour
de cassation, Civ. 4 Oct. 1989, Rev.crit.dr.int.pr. 1990.316, note Lagarde.
40. For a case in which it has been held to cover paternity proceedings, see Cour de cassation, Civ. 18 Nov. 1992, Clunet 1993.309, note Lequette; Rev.crit.dr.int.pr. 1993.276, note
Ancel.
41. Lagarde, Rev.crit.dr.int.pr. 1994.332, 337.
42. Ibid.
280
International and Comparative Law Quarterly
[VOL.45
convention, the parties may agree to have the issue determined by the lex
fori:43 it is possible that they may,44 and this is clearly the position with
regard to actions arising out of a contract.45
B.
The Burden of Proof
46
Here too the Cour de cassation has changed its position. Originally, under
what was known as the Lautour-Thinet rule,47 the burden of proving foreign law rested on the party whose claim was governed by it, rather than
on the party who pleaded it.48 This meant, for example, that if the plaintiff
was suing for a tort committed in a foreign country, he had to prove the
foreign law, even if he was content to have the case decided by French law,
and it was the defendant who pleaded the foreign law.49If the foreign law
was not proved, the position was as follows: if this was due to the default or
lack of diligence of the party on whom the burden of proof lay, the claim
would be rejected; if, on the other hand, it was genuinely impossible to
ascertain the foreign law, the court would apply the lex fori. There was
thus a real incentive for the party concerned to use his best efforts to prove
the foreign law; the other party, however, might have been tempted to
plead foreign law just to play for time.
Recently, the Cour de cassation has abandoned the Lautour-Thinet
rule. The new rule, laid down in the Amerford case,51 is that, where the
parties have the "free disposition of their rights", the party claiming that
the application of foreign law would lead to a different result from that
which would obtain if French law were applied must establish this difference by proving the content of the foreign law he invokes; otherwise
French law will be applied as the lex fori.
43. This would constitute a procedural agreement under Art.12(3) of the New Code of
Civil Procedure.
44. See Roho, Cour de cassation, Civ. 19 Apr. 1988, Rev.crit.dr.int.pr. 1989.69, note
Batiffol.
45. See the note by Lagarde to Cour de cassation, Civ. 4 Oct. 1989, Rev.crit.dr.int.pr.
1990.320-322.
46. This subsection is based on information and material supplied by Professor Paul
Lagarde. See also Lagarde, op. cit. supra n.41 (note on Amerford, infra).
47. Named after the two leading cases: Lautour, Cour de cassation, Civ. 25 May 1948,
Rev.crit.dr.int.pr. 1949.89, note Batiffol; D.1948.357, note P.L.-P.;S.1949.I.21, note Niboyet;
J.C.P. 1948.11.4532,note Vasseur; and Soci&tdThinet, Cour de cassation, Civ. 24 Jan. 1984,
Clunet 1984.874, note Bischoff, Rev.crit.dr.int.pr. 1985.89, note Lagarde.
48. "La charge de la preuve de la loi trangire pose sur la partie dont la pritention est soumise d cette loi et non sur celle qui l'invoque, fait-ce d l'appui d'un moyen de d fence." Soci&td
Thinet, ibid.
49. There was one exception: when the principal claim was governed by French law and
the defendant raised a plea of inadmissibility, the latter had to prove that this plea was j ustified under the foreign law.
50. Ch.com. 16 Nov. 1993, Rev.crit.dr.int.pr. 1994.332, note Lagarde;Clunet 1994.98, note
Donnier.
APRIL1996]
Foreign Law and European Systems
281
In the Amerford case the insurer of goods damaged in transit had
brought an action for breach of contract against the carrier.The defendant
claimed that the law of Illinois was applicable and this was not contested
by the plaintiff. Under the Lautour-Thinet rule, the burden of proving
Illinois law would have fallen on the plaintiff, since his claim was governed
by it. Under the new system, however, it was the defendant-the party
who had invoked the foreign law-who was required to prove that it was
different from the lex fori.
This new system has the advantage of simplicity; in particular, it is no
longer necessary to distinguish between those cases in which the failure to
prove the foreign law is the fault of the party on whom the burden of proof
lies and those cases in which it is genuinely impossible to prove it. The
result is now the same in both cases: the lex fori applies.
The new rule on the burden of proof fits in well with the rules on the
application of foreign law, since the concept of areas of law in which the
parties have the "free disposition of their rights", a concept to be characterised according to the lexfori,5"applies in both. In such cases the court is
not obliged to rule ex officio that foreign law must be applied, and, if the
foreign law is not proved, the lexfori will apply instead. The main difficulty
arises in cases concerning areas of the law in which the parties have the
"free disposition of their rights" but in which an international convention
applies. The position here is unclear: must the court declare foreign law
applicable even if it is not pleaded, but then apply the lexfori if the foreign
law is not proved? Or is it obliged to establish the content of the foreign
law ex officio? So far these questions have not been answered.
Another question concerns the position where the court is not obliged
to apply foreign law ex officio, but nevertheless chooses to do so. Must it
then also determine the content of the foreign law ex officio? It seems that
it should, though the position is not yet certain.52
The Amerford case limits the new rule to areas of the law in which the
parties have the "free disposition of their rights", thus implying that a different rule is to be followed where this is not the case; it does not, however,
indicate what that rule is.
C. Methods of Proof53
In France foreign law is-to a large extent-proved as a fact. All methods
of proof may in principle be used, but the normal method is the production
of "certificatsde coutume", written opinions by experts on the foreign
51. Lagarde, idem, pp.338-339.
52. See Socidtd Damart, Civ. 5 Oct. 1994, Rev.crit.dr.int.pr. 1995.60, note Bureau.
53. This subsection is based on information and material supplied by Professor Catherine
Kessedjian.
282
Internationaland ComparativeLaw Quarterly
[VOL.45
system,often foreignlawyers.Thesemaybe accompaniedby the relevant
documentation-for example, the text of foreign legislationor judicial
decisions(translatedinto French).If eachpartyproducessucha certificat,
it is not unlikelythatthey will conflict,in whichcase the courtwill have to
decidewhichis correct.Sincesuchevidenceis expensiveto obtain,it is not
alwaysproduced;instead,the partiesmayrequestthe courtto conductthe
necessaryresearchitself.AlthoughFranceis a partyto it, the 1968Council
of Europe Conventionon Informationon Foreign Law is rarely used,
possiblybecauseits existenceis not widelyknown.
In Francethe generalprincipleis that appealson questionsof factmay
be madeto the coursd'appel,but not to the Courde cassation.Sinceforeign law is treatedas a questionof fact for thispurpose,an appealcannot
The
normallybe takento the Courde cassationon a pointof foreignlaw.54
a doctrine
only exceptionis providedby the doctrineof "denaturation",
underwhichan appealmay be taken to the Courde cassationwherethe
lowercourtfails to applycorrectlythe termsof a writtendocument,such
as a contractor will,the meaningof whichis perfectlyclear.Thisdoctrine
has been extendedby analogyto foreignlaw. However,it is only in rare
cases that suchappealsare successful.
VI.
ENGLAND"
THEEnglishruleson pleadingand proof of foreignlaw are firmlyestablished and rarely questioned. However, there are few recent cases in
whichthe courtshave had to considerthem, and one has to look to textbooksandoldercasesfor authority.Thismayexplainthe lackof certainty
over some of the exceptionsdiscussedbelow.
We will first explain the normal procedure and then consider the
exceptions.
A. TheNormalProcedure
The basicprincipleis thatforeignlawis treatedas a questionof fact.If it is
notpleadedby a party,the courtwillnot applyit, even if it wouldappearto
54. The case law is firmly settled on this point. For an example, see Compagnie algerienne
de Credit et de Banque v. Chemouny, Civ. 2 Mar. 1960, Rev.crit.dr.int.pr. 1960.97; J.C.P.
1960.11.11734,note H.M.; Clunet 1961.408, note B.G.; Ancel and Lequette, op. cit. supra
n.31, at No.34.
55. See Dicey and Morris, The Conflict of Laws (12th edn, 1993), chap.9; Cheshire and
North, Private International Law (12th edn, 1992), chap.7; O'Malley and Layton, European
Civil Practice, chap.9; Fentiman, "Foreign Law in English Courts" (1992) 108 L.Q.R. 142.
For Scotland, see Anton, Private International Law (2nd edn, 1990), pp.773-780. For Australia, see P. E. Nygh, Conflict of Laws in Australia (6th edn, 1995), chap.17. Richard Fentiman is at present writing a book entitled Foreign Law in English Courts, to be published in
1996 by the Oxford University Press in the series Monographs on Private International Law.
I am grateful to him for letting me see parts of this in draft and for his comments and assist-
APRIL1996]
Foreign Law and European Systems
283
be applicableaccordingto the relevantchoice of law rule.56Unless the
otherpartyadmitsit,"foreignlawmustbe provedby the partywhopleads
it.58If this is not done, or if the foreign law is not pleaded, the lexfori will be
applied.
The usualmethodof proof is by meansof expertwitnesses."9
A person
calledto give evidenceon foreignlawmustbe "suitablyqualifiedto do so
on accountof hisknowledgeor experience".60It is not necessaryforhimto
He may be residentin
be a practisinglawyerin the countryconcerned.61
law
or
in
an
academic
position,or he may be
England,perhapspractising
residentin the foreigncountry.Thus,for example,a professorof lawfrom
London University'sSchool of Orientaland AfricanStudiesmightgive
ance. I am also grateful to Mr Ian Karsten QC, Professor Robin Morse and Professor
Michael Zander for assistance and ideas; friendly discussions with critics of the English system, such as Professor Hans Ulrich Jessurun d'Oliveira, have helped me to understand the
Continental point of view. Needless to say, none of the above has any responsibility for what
I have written.
56. An English court is not normally entitled to act ex officio in declaring foreign law
applicable. However, it may of its own motion invoke the British Law Ascertainment Act
1859, even though neither party has pleaded foreign law: Topham v. Duke of Portland (1863)
1 De G.J. & S. 517 (varied but not on this point sub nom. Duke of Portland v. Topham (1864)
11 H.L.C. 32); Eglinton v. Lamb (1867) 15 L.T. 657; Dicey and Morris, idem, p.226. On the
operation of the Act, see infra n.59; see also Dicey and Morris, idem, pp.236-237.
57. If the content of the foreign law is admitted, no proof will be necessary: Dicey and
Morris, idem, p.228, notes 25 and 26.
58. There are certain statutory exceptions to this. See e.g. the Maintenance Orders Act
1950, s.22(2).
59. A party cannot prove foreign law simply by citing the text of foreign legislation or by
referring to a decision of a foreign court. (For an exception, see the Evidence (Colonial
Statutes) Act 1907, which permits Commonwealth statutes to be admitted in evidence without further proof.) A party may, however, ask the court to make an order under the British
Law Ascertainment Act 1859, which permits a court in one Commonwealth country to
request a court in another Commonwealth country for a ruling on the latter's law. Such a
ruling is binding on the court making the request. Recourse to this Act is rare. Similar provision with regard to the law of non-Commonwealth countries was made by the Foreign Law
Ascertainment Act 1861, but no international conventions were concluded to give effect to it
and it was repealed in 1973. The UK is a party to the 1968 Council of Europe Convention on
Information on Foreign Law and regularly provides information to foreign countries. There
is no provision in the rules of court for its use by English courts, but the High Court may have
inherent jurisdiction to make a request under it: cf. Panayiotou v. Sony Musical Entertainment (UK) Ltd [1994] Ch. 142, where it was held that the High Court has inherent jurisdiction
to issue a letter of request to a court in another country for assistance in obtaining production
of a document.
Another method of proof has been established by s.4(2) of the Civil Evidence Act 1972,
which provides that where a point of foreign law has previously been decided by an English
court, that decision may (subject to certain conditions) be cited in subsequent cases as evidence of the foreign law. Such a decision is not binding on the later court: it merely creates a
rebuttable presumption. This rule of "quasi-precedent" is interesting in view of the doctrine
that foreign law is fact.
A court is not normally entitled to conduct its own research to ascertain the foreign law,
but it may do so if requested by both parties. Courts are not obliged to accede to such a
request and are generally reluctant to do so: Dicey and Morris, op. cit. supra n.55, at p.228.
60. Civil Evidence Act 1972, s.4(1).
61. Ibid.
284
International and Comparative Law Quarterly
[VOL.45
evidence on the law of Ghana,62and a member of the New York Bar or a
professor from an American university might give evidence on US law.63
The other party is not obliged to call an expert,6 but if the content of the
foreign law is strongly contested he almost certainly will. In such a situation, the two experts will usually disagree, and the proceedings may be
lively. It will then be for the court to give a ruling, either by preferring the
evidence of one to that of the other or by accepting parts of the evidence
of each. An expert witness should refer to the sources of law (such as
statutes, cases or textbooks) on which he bases his opinion and, if the witnesses called to give evidence disagree as to the effect of those sources, the
court may (and indeed must) consult them for itself in order to decide
which witness is right. The court is not, however, entitled to consult
sources of law which have not been referred to by a witness, nor may it
conduct independent legal research.65
In a jury trial (now rare in civil cases) questions of foreign law were
originally decided by the jury. This, however, was changed by statute, and
they are now decided by the judge.66
Appellate courts in England are reluctant to interfere with findings of
fact made by the trialjudge; however, foreign law, "although a question of
fact, is a question of fact of a peculiar kind", and appellate courts are much
more willing to reverse a finding of foreign law than of a "normal"fact.67A
good example is provided by Attorney General of New Zealand v. Ortiz,68a
case in which the government of New Zealand brought proceedings in
England to recover an illegally exported artifact. The case turned on a
question of foreign law, namely the correct interpretation of a New
Zealand statute, the Historic Articles Act 1962. At the trial each side
62. See McCabe v. McCabe, The Independent, 3 Sept. 1993, a case involving a marriage
under Akan customary law in which a professor from the School gave evidence for the one
side and a former colleague of his gave evidence for the other (the identity of the expert
witness appears only in the transcript).
63. See X, Y and Z v. B [1983] 2 Lloyd's Rep. 535; [1983] 2 All E.R. 464, in which a New
York attorney gave evidence on the one side and a professor at New York University on the
other. The latter was, in the words of the judge, "aperson of the greatest academic distinction
and one of the leading authorities" in the field of law in question.
64. If he does not, the court will normally accept the evidence of the expert called, provided it is coherent and not obviously wrong. However, if the opinion is not supported by the
sources quoted, the court may examine the latter for itself and reach its own conclusion. See
Dicey and Morris, op. cit. supra n.55, at pp.232-233.
65. Idem, p.232. For a case in which a judgment was reversed on this ground, see Bumper
Corpn v. Comr of Police of Metropolis [1991] 1 W.L.R. 1362 (CA).
66. This was originally brought about by the Administration of Justice Act 1920, s.15. For
the High Court, see now the Supreme Court Act 1981, s.69(5); for county courts, see the
County Courts Act 1984, s.68. For criminal cases, see R. v. Hammer [1923] 2 K.B. 786.
67. Parkasho v. Singh [1968] P. 223, 250; approved in Dalmia Dairy Industries Ltd v.
National Bank of Pakistan [1978] 2 Lloyd's Rep. 223,286 (CA); Bumper Corpn, supra n.65,
at p.1370.
68. [1984] A.C. 1.
APRIL1996]
Foreign Law and European Systems
285
calledits expertwitnessand,on the point in question,the courtpreferred
This
the evidence of the witness for the governmentof New Zealand.69
and
of
the
New
was
the
Court
Zealand
overturned
Appeal,70
by
finding
governmentappealedto the Houseof Lords.Initsjudgment,the Houseof
Lordsset aboutthe taskof interpretingthe statutein exactlythe sameway
as it wouldhave approachedthe interpretationof an Englishstatute.The
argumentsof counselwerecarefullyconsidered,butno weightappearsto
havebeen givento the viewsof the expertwitnesses.After a detailedanalysisof the statute,the House of Lordsupheldthejudgmentof the Courtof
Appeal.
Since an appeal to the House of Lords lies only on a point of law of
generalpublicimportance,7'leave to appeal-which was grantedby the
Courtof Appeal-must have been given on the groundthata questionof
Englishlawneededto be decided;nevertheless,the wholeof the House of
Lords'judgmentwas taken up with the issue of New Zealandlaw. This
showsthatin practicethe House of Lordsis preparedto considerpointsof
foreignlawon appeal,at leastif the lawis thatof ajurisdictionsuchasNew
Zealand.72
No doubtit wouldadopta differentattitudetowardsa French
statute or even an American one; nevertheless,the issue of principle
remainsthe same.
B.
Exceptions
It was said previouslythat an English court will not apply foreign law
(even if its applicationis requiredby the relevantchoiceof lawrule)unless
it is pleadedby one of the parties,and thatif it is not so pleaded,or is not
proved,the lexfori will apply.Thisrule,whichwill henceforthbe referred
to as the "defaultrule",is entirelysatisfactoryin the generalrunof cases;
nevertheless,the questionmustbe askedwhetherthere are situationsin
which an exception has to be made, as is the case in those Continental
systems(such as France)whichadopt a similarapproachto England.
The impressiongivenby the standardtextbooksis thatsuchexceptions,
if they exist at all, are verylimited.73
However,thoughauthorityis sparse,
there is reason to believe that the default rule may not apply in the
69. [1982]Q.B. 349.
70. [1984]A.C. 1.
71. Administration of Justice Act 1960, s.1(2).
72. There is of course a close similarity between New Zealand law and English law, the
methods of interpretation in the two systems being virtually identical. Moreover, an appeal
lies from New Zealand to the Privy Council, which is the final authority in the New Zealand
court system. The House of Lords must, therefore, have felt fully competent to decide questions of New Zealand law. In spite of this, however, New Zealand law is still foreign law in the
House of Lords, though not in the Privy Council.
73. See Dicey and Morris, op. cit. supra n.55, at pp.227-229 and 238 (text to n.26);
Cheshire and North, op. cit. supra n.55, at p.107, n.2.
International and Comparative Law Quarterly
286
[VOL.45
situationsset out below.74Wherethisis the case,the Englishcourtswould
not normallyascertainthe foreignlawfor themselves;instead,theywould
rule againstthe partyon whomthe burdenof proof lay.
1.
Criminalproceedings
The defaultrule does not apply in criminalproceedings.Thoughforeign lawis not normallyrelevantin suchproceedings,the crimeof bigamy
is an exception,since the prosecutionmust prove that the accusedwas
alreadymarriedwhen he went throughthe second ceremony.If the first
marriagewas celebratedabroad,or if the parties to it were domiciled
abroad,its validitycould dependon foreignlaw. In such a case the prosecutioncannotrely on the defaultrule but mustprove the validityof the
marriageunderthe foreignlaw. If this is not done the defendantwill be
Thisis in keepingwiththe principlesgoverningthe burdenof
acquitted.7"
proofin criminalproceedings:the prosecutionmustproveits case beyond
a reasonabledoubt,and,unlessthe accusedpleadsguilty,it cannotrelyon
his failureto lead evidenceas establishinghis guilt.
2.
Status
The default rule may also be inapplicablewhere the court is asked
to give a declarationor decree on status that would bind third parties.
Thus,if a partypetitionsfor a decreeof nullityof marriage(or for a declarationof validityof marriage),andif, underthe Englishruleson the conflict of laws, the validityof the marriageis governedby foreignlaw, the
petitionershouldnot be able to relyon the defaultrule andsimplyestablish his case on the basisof Englishlaw:if he does not provethatthe marriage is invalid (or valid) under the foreign law, the petition should be
There is no direct authorityfor this77and there are dicta
dismissed.76
74. There may be other exceptions: see e.g. BP Exploration Co. (Libya) Ltd v. Hunt
[1980] 1 N.S.W.L.R. 496, 503; Osterreichische Liinderbank v. S'Elite Ltd [1981] 1 Q.B. 565
(CA).
75. R. v. Povey (1852) Dears. C.C. 32; R. v. Savage (1876) 13 Cox C.C. 178; R. v. Lindsay
(1902) 66 J.P. 505; R. v. Naguib [1917] 1 K.B. 359. See also Dicey and Morris, op. cit. supra
n.55, at p.238.
76. The same principle should apply where a petitioner for divorce seeks to establish the
validity of the marriage which he is asking the court to dissolve. In such a case the jurisdiction
of the court depends on the validity of the marriage and jurisdiction in matrimonial proceedings cannot be established by default or consent. See Kahn-Freund, General Problems of
Private International Law (1980), p.115.
77. Rule 10.14 of the Family Proceedings Rules 1991 seems to assume that the foreign law
must be proved, but does not say so directly. The same is true of the section in Dicey and
Morris on the proof of marriage (op. cit. supra n.55, at pp.655-661).
There are many divorce cases concerning a marriage celebrated in a foreign country in
which the petitioner was required to prove that the marriage was valid under the foreign law:
see e.g. Cooper-King v. Cooper-King [1900] P. 65; Wilson v. Wilson [1903] P. 157; Bater v.
Bater [1907] P. 333. However, where the marriage is celebrated abroad, the formalities
APRIL1996]
Foreign Law and European Systems
287
against it;78nevertheless, since a petitioner in matrimonial proceedings
must positively establish his case and cannot simply rely on the failure of
the respondent to defend the action,79it would seem wrong in principle for
him to rely on the latter's failure to plead and prove foreign law.o0
3.
Summary judgment
It also seems that the default rule may not apply to an application for
summary judgment under Order 14 of the Rules of the Supreme Court.
The question arose in National Shipping Corporation v. Arab, where
Buckley U said:"'
The submissionswhich have been put forward-with great clarity-on
behalf of the plaintiffs depend upon the presumption-which is one
undoubtedlyrecognisedby ourlaw-that the lawof a foreigncountryis the
same as Englishlaw except where evidenceis adducedto show that it is
different.But it does not seem to me that it wouldbe satisfactorythat the
plaintiffsshouldobtainsummaryjudgmentin a case in whichforeignlawis
clearlyinvolveduponthe basisof thatpresumption.
The appeal against summary judgment was allowed.
4. International obligations
The existence of another exception is indicated by a statement of Lord
Diplock in UCM v. Royal Bank of Canada:82
requiredby Englishlawwouldalmostneverbe satisfied,indeed(exceptin specialcasessuch
as a consularmarriage)it is hardto see howtheycouldbe satisfied;so the defaultrulewould
not normallybe of assistanceto the petitionerin suchcases.However,if the defaultruledid
applyto marriage,a petitionerin an undefendedactionfor the annulmentof a marriage
celebratedabroadcouldalwayssucceedby the simpleexpedientof leadingno evidenceon
the formalrequirementsof the foreignlaw andmerelyshowingthatthe Englishformalities
hadnot been observed.It is hardto believethatthiscouldbe the law.
78. Szechterv. Szechter[1971]P. 286,296.Thereare a numberof casesin whichEnglish
lawhasbeenappliedto decidewhethera marriagewasinvalidforlackof consent,orwhether
it shouldbe annulledfor impotenceor wilfulrefusalto consummate,and in whichforeign
lawwasnotpleadedeventhoughthereweresignificantconnectingfactorswithforeigncountries.However,in the caseof consent,the Englishchoiceof lawruleis uncertainandthe lex
fori may applyeitheras the governinglaw or on the basisof publicpolicy:see Dicey and
Morris,idem,pp.682-685.In the case of annulmentfor impotenceor wilfulrefusalto consummate,the applicablelaw is probablythe lexfori:see idem,Rule79(3),pp.719-724.
79. See s.1(3) of the MatrimonialCausesAct 1973.
80. It shouldbe rememberedthat the matrimonialjurisdictionof the Englishcourtsis
derivedfromthatof the ecclesiasticalcourts.The latter'sprocedurewasbasedon the canon
law andwasmoreinquisitorialthanthatof the commonlaw:see LawrenceStone,Roadto
Divorce (1995) pp.195-198.
81. [1971]Lloyd'sRep. 363,366 (CA). See also p.365(perDaviesU).
82. [1983]A.C. 168,189.Inmakingthisstatement,LordDiplockwasapprovinga similar
statementmadeearlierbyLordDenninginSinghBatrav. Ebrahim[1982]2 Lloyd'sRep.11,
13(CA). LordDenning'sstatementis alsoset out in thejudgmentof AcknerU in the Court
of Appealin UCM:[1982]Q.B. 208,241-242.
288
International and Comparative Law Quarterly
[VOL.45
If in the courseof the hearingof an actionthe courtbecomesawarethatthe
contracton whicha partyis suingis one that this countryhas acceptedan
internationalobligationto treatas unenforceable,the courtmusttake the
pointitself,eventhoughthedefendanthasnot pleadedit, andmustrefuseto
lend its aid to enforcethe contract.
Though obiter, this statement almost certainly represents English law.
UCM v. Royal Bank of Canada was an action for breach of a contract
which was contrary to the exchange control regulations of a foreign country. The "international obligation" referred to is contained in Article VIII
(2)(b) of the International Monetary Fund Agreement,83which provides:
"Exchange contracts which involve the currency of any member and
which are contrary to the exchange control regulations of any member
maintained or imposed consistently with this agreement shall be
unenforceable in the territories of any member." The effect of Lord
Diplock's statement, therefore, is that if proceedings are brought in
England to enforce such a contract, and neither party pleads that the contract is illegal under the foreign exchange control regulations, the English
court would, in appropriate cases, consider the issue of its own motion. In
such cases it would require the plaintiff to prove that the contract was not
illegal and, if he failed to do this, it would refuse to enforce it.84
Exchange control regulations invariably provide for criminal penalties,
and Article VIII(2)(b) is concerned with protecting the interests of foreign States by preventing the enforcement of contracts that are illegal
under their law. Lord Diplock's statement would apply to other conventions of such a nature, but it is doubtful whether it would apply beyond
this. In particular,there is no reason to believe that the default rule would
be excluded simply because the choice of law rule in issue was derived
from an international convention for the unification of private international law.
5.
Illegality
Even in the absence of an international convention, comity may require
that a contract should not be enforced where it is illegal under foreign law.
The requirements of comity in this regard have been crystallised in the
rule in Regazzoni v. Sethia,s5which states that an English court will not
83. Applicablein the UK by virtueof the Bretton-WoodsAgreementsOrderin Council,
S.R. & O. 1946No.36, Art.3,madeunderthe Bretton-WoodsAgreementsAct 1945.See
Dicey andMorris,op. cit.supran.55,at pp.1595-1600.
84. By "enforce"is meanteitherto granta decreeof specificperformanceor to award
damages.It shouldbe noted that the rule appliesirrespectiveof the law applicableto the
contract.Art.VIII(2)(b)is not affectedby the RomeConvention,sinceArt.21of the latter
providesthattheRomeConventiondoesnotprejudicetheapplicationof otherinternational
conventionsto whicha contractingStateis a party.
85. [1958]A.C. 301.
APRIL1996]
Foreign Law and European Systems
289
enforce, or award damages for the breach of, a contract which involves
doing an act in a foreign country that is illegal by the law of that country.
This rule is based on public policy and operates independently of the law
governing the contract; it does not matter, therefore, whether the applicable law is English law or foreign law.
Where an English court learns of facts that might trigger the rule in
Regazzoni v. Sethia, it should consider the question of its own motion even
if neither party pleads foreign law. This is because the rule is not intended
to serve the interests of the parties, but applies in the public interest. To
enforce a contract that required an illegal act to be committed in a foreign
country would conflict with the duty of comity and could affect good
relations between the foreign State and the United Kingdom. These
should not be jeopardised simply because the defendant has failed to
plead the foreign law.
An additional reason why the court should raise the matter of its own
motion is that the rule in Regazzoni v. Sethia is often regarded as a rule of
English domestic law.86 By this is meant that a contract is illegal under
English domestic law if it requires an act to be done in a foreign country
which is illegal by the law of that country.87If this is correct, it would be
covered by the rule that, if it comes to their notice, English courts will take
a point of illegality under English law even if it is not raised by the parties.88
6.
Conclusions
The default rule in English law is a rule of procedure-a rule of pleading
and evidence-and its application depends on general procedural considerations. It is based on the principle of English procedure that a court
will not normally consider issues unless they are raised by the parties.
Where there is an exception to this general principle, there should also be
an exception to the default rule.
VII.
OTHER COUNTRIES
THEposition in Austria,89the Netherlands9"and Portugal9'is broadly similar to that in Germany. This is also the official position in the Scandinavian
86. See Cheshire, Fifoot and Furmston's Law of Contract (12th edn, 1991), pp.367-368.
87. Such a rule of English law would be internationally mandatory in terms of Art.7(2) of
the Rome Convention. This may in fact be the only way in which the rule in Regazzoni v.
Sethia could be applied under the Rome Convention, since Art.16 allows public policy to be
used only to exclude the application of the law that would otherwise be applicable, not to
require the application of a law that would otherwise be inapplicable.
88. Cheshire, Fifoot and Furmston, op. cit. supra n.86, at pp.391-392.
89. Information supplied by Professor Gerte Reichelt.
90. Information supplied by Professor A. V. M. Struycken and Mr Harry Duintjer
Tebbens.
91. Information supplied by Judge Manuel Moura Ramos.
290
International and Comparative Law Quarterly
[VOL.45
countries,92 though, with regard to questions which could be settled by
agreement between the parties, it seems that in practice the courts do not
usually apply foreign law unless it is pleaded by one of the parties. In Italy93
legal authors have for many years advocated a solution similar to that in
Germany, but the courts have not always accepted this. Article 14 of the
new statute on private international law,94however, now states expressly
that foreign law must be applied ex officio. In Belgium95 courts are
required to ascertain the content of foreign law through their own
research. However, there is no decision of the Cour de cassation that
requires a court to apply foreign law ex officio, though such a requirement
probably exists where public policy (ordre public) or mandatory laws are
involved, that is to say, mainly in the area of family law. In other areas
foreign law would probably not be applied unless one of the parties
claimed its application. The position in Spain seems to be similar to that in
England.96
VIII. THE ROME CONVENTION
DOEs the Rome Convention affect the rules of the contracting States on
the pleading and proof of foreign law? At firstsight this might appear to be
the case. The Convention states, in seemingly peremptory language, that
its rules "shall apply to contractual obligations in any situation involving a
and goes on to
choice of law between the laws of different countries""97
shall
be
for
that
"a
contract
example,
governed by the law chosen
provide,
it
the
be
that contracting States are
therefore,
parties";98 might thought,
by
to
law
whenever
required by the Convention even if
obliged apply foreign
the parties do not plead it. However, Article 1(2)(h) states that the rules of
the Convention do not apply to evidence and procedure.99Since the rules
on pleading and proof of foreign law are clearly part of the law of evidence
and procedure, it follows that they cannot be affected by the Conven92. Information supplied by Professor Michael Bogdan (Sweden), Professor Ole Lando
(Denmark) and Professor Helge Thue (Norway). See also Lando at pp.128-140 of Dierk
Mtiller (Ed.), Die Anwendung auslandischen Rechts im internationalen Privatrecht (1968),
Vol.10 of the series Materialien zum auslandischen und internationalen Privatrecht, MaxPlanck-Institut fir auslandisches und internationales Privatrecht.
93. Information supplied by Professor Andrea Giardina and Professor Fausto Pocar.
94. Law 218 of 31 May 1995.
95. Information supplied by Professor Marc Fallon.
96. Information supplied by Professor A. Boris and Professor J. Gonzales Campos.
97. Art.1(1).
98. Art.3(1). Similar language is used in other choice of law provisions in the Convention.
99. This is without prejudice to Art.14, which states that the law governing the contract
under the Convention "applies to the extent that it contains, in the law of contract, rules
which raise presumptions of law or determine the burden of proof" (emphasis added). This
cannot affect the rules on the pleading and proof of foreign law, since they are not part of the
law of contract but are part of the law of evidence and procedure: they apply generally to all
proceedings, not just those in which a contract is in issue.
APRIL1996]
Foreign Law and European Systems
291
tion.'10 One can conclude, therefore, that the Convention does not impose
any legal obligation on contracting States to alter their rules on these
matters.
Though there is no legal obligation on contracting States to apply foreign law ex officio, it might be thought that failure to do so could undermine the objectives of the Convention. The most important objective,
however, is to give the parties freedom to choose the governing law. Since
this is meant to be for the benefit of the parties, it would seem perverse for
a court to apply foreign law when neither of them wanted it to do so. It is
suggested, therefore, that the spirit of the Rome Convention does not
require ex officio application of foreign law in those cases in which the
parties chose, or could have chosen, the applicable law.o""
Articles 5 and 6 apply the law of specified countries irrespective of the
choice of the parties. This is done in the interest of the weaker party (consumer or employee) since it is thought that his weak bargaining position
might force him to agree to a choice of law that was detrimental to him.
However, once litigation has begun, his economically weak position
would hardly prevent him from pleading foreign law; so there is no reason
why the court should be required to apply foreign law ex officio.102
It seems, therefore, that the objectives and policy of the Rome Convention do not normally require the ex officio application of foreign law.
However, there may be a few unusual cases, normally involving illegality,
where ex officio action might be desirable. These would usually occur
where Article 7(1) was applicable,103
but could occur under Article 3(3). In
these exceptional cases the spirit-though not the letter-of the Convention might make it desirable for a court to apply foreign law of its own
motion. In England these cases would almost certainly be covered by one
of the exceptions set out above.
IX. CONCLUSIONS
As far as the pleading and proof of foreign law are concerned, the legal
systems of Europe may best be represented as a continuum, with Germany at one end and England at the other. Though the contrast between
100. Dicey and Morris, op. cit. supra n.55, at p.229. The Giuliano-Lagarde Report (1980)
O.J. C282/1, at p.36, states that Art.1(2)(h) was inserted in order "that there should be no
doubt as to the freedom retained by the States regarding questions of evidence not decided
by the Convention". The only questions of evidence dealt with by the Convention are those
under Art.14.
101. In any event, failure to plead foreign law could be regarded as an implied choice of
(forum) law under Art.3(2).
102. However, where the consumer or employee fails to plead foreign law due to ignorance. it might be desirable for the court to explain the position to him and to give him the
opportunity to amend his pleadings if he so wishes.
103. It is not in force in Germany or the UK. See Art.22(1)(a) and, for the UK, s.2(2) of the
Contracts (Applicable Law) Act 1990.
292
International and Comparative Law Quarterly
[VOL.45
each country and its successor along the line may not be great, there is
nevertheless a significant difference between countries at opposite ends of
the scale. In Germany the court is obliged to apply foreign law even if it is
not pleaded; in England it is normally precluded from doing so. In Germany the judge is under an obligation to conduct his own research where
this is necessary to ascertain the foreign law; in England he is prohibited
from doing so, except where requested by both parties.
Nevertheless, the practical differences, even between England and
Germany, should not be exaggerated. Parties do not take part in legal
proceedings unless they hope to be successful, and litigants in English proceedings will usually plead and prove foreign law if its application would
be in their interests. They will normally omit to do so only where they
believe it to be the same as English law. The main exceptions occur where
a party is unaware that foreign law is applicable, ignorant of its content or
unable to prove it. Except where these circumstances exist, the English
system will produce the same result as the German. Differences of outcome are most likely to occur, therefore, where the parties lack the
resources to obtain good-quality legal advice and representation.
Lawyers from countries such as the Netherlands or Germany feel that
their system is superior. They find it unbelievable that English judges are
not only not obliged to conduct their own research where this is necessary
to ascertain the foreign law, but are actually prohibited from doing so.
English lawyers, on the other hand, wonder why judges in Germany insist,
even in the absence of special circumstances, on applying foreign law
where both parties would prefer the simpler and more familiar method of
deciding the case according to the lex fori. The result is a measure of
mutual incomprehension, incomprehension resulting in part from the differing legal traditions of the countries concerned: is the function of a judge
to ascertain "the truth" and to "do justice" in the abstract, or is it to decide
the case according to the pleadings and evidence? It is to differences in
such fundamental conceptions as these that the differences in the rules on
foreign law owe their origin. The heavy hand of history, therefore, is likely
to ensure that the legal systems of England and the Continent retain their
distinctive features for many years to come.