Foreign and Comparative Law in the Courts

Article excerpt

THE RIGHT HONOURABLE LORD JUSTICE MANCE^

I. INTRODUCTION

On leaving university, I had a choice between working in the British Institute of International and Comparative Law and a period with a German law firm. Both possibilities arose from an interest in things foreign. An unperceived advantage (at the time) of my choosing the latter was that it would lead, indirectly, to my meeting my wife. More relevantly in the present context, it meant that I listened to Professor Zweigert's lectures at Hamburg University, and developed German and continental connections which I continue to value. Practice as a commercial barrister led to increased involvement with both comparative and foreign law. Appointment to the bench in 1993 as a High Court judge sitting in the Commercial Court gave the opportunity to see the relevance of both from a different angle. My period in the Commercial Court coincided with a proliferation of disputes under the European Conventions governing jurisdiction and recognition of judgments (the Brussels and Hague Conventions) and with the first disputes to come before English courts under the Rome Convention on the governing law of contracts. Almost my first experience of foreign law as a trial judge in 1994 involved a series of Spanish professors, one of whom remarked, at the close of his evidence, that appearing as an expert before an English court had been an experience about which future generations of Spanish lawyers should hear. I am confident that this was meant positively, although-and indeed probably because-the common law's method of informing itself about foreign law differs so very markedly from that adopted in civilian countries.

II. CONTEXTS IN WHICH FOREIGN LAW COMES BEFORE ENGLISH COURTS

A. Foreign Law Directly in Issue

Foreign law may be directly in issue. It may, for example, arise at the pretrial stage as part of an attempt to demonstrate the existence or absence of jurisdiction, the appropriateness of a particular forum or the propriety of foreign service, or it may be deployed at trial as an element needed to establish or assist to establish a claim or defence. In such cases, foreign law is treated in English courts as a question of fact on which the trial judge must make findings in light of any admissible expert evidence put before him.2 It is for one or the other party to plead, and then by expert evidence to establish, its effect.3 Unless and except to the extent that one or other (or both of the parties) does this, an English court will assume any applicable foreign law to be identical to English law, and will apply English law accordingly. So it is for the parties to decide whether it is in their interests (legal, tactical, and financial) to investigate, assert, and produce evidence to establish any relevant foreign law. English law will not insist on any particular course. The case referred to above illustrates the deployment of foreign law in both pretrial and trial contexts.5 At the pretrial stage, the case gave rise to both issues of forum non conveniens and issues under the Brussels Convention (which now allocates jurisdiction between European states). Large sums were in issue and there was exhaustive investigation of Spanish law and procedure governing both civil and criminal proceedings. Exceptionally, and in view of the bulk of material and intractable nature of the issues, I permitted cross-examination. Counsel were confident that this would conclude within four days-in the actual event it took ten days. I hoped then that the need for such extensive evidence was attributable to a prolonged teething period on the part of the Brussels Convention. But I doubt whether even the trend toward ever more active case management would have led to a much speedier resolution of such intensively argued points. Not infrequently, a decision at the jurisdiction stage means that foreign law thereafter no longer arises or is not pursued. In this case, at the trial in 1998 and 1999, which rounded off the last six months of my life as a first instance judge, some of the same issues and a number of other complex issues of Spanish law were the subject of further extensive Spanish evidence. …