4
Proof of foreign law

Status of rules of foreign law

In an action before an English court, a party who relies on the rules of a foreign system of law must plead and prove them. Normally, the courts will not take judicial notice of the rules of foreign law,1 except that the House of Lords, which is a court of appeal in civil cases from England, Scotland and Northern Ireland, will take judicial notice of the laws of all three countries in hearing appeals from the courts of any one of them.

In this respect rules of foreign law differ from those of public international law; moreover, the rules of public international law have the status of rules of law in an English court, because it is part of the law of England.2 Rules of foreign law have the status of facts. But they are unusual facts, because, unlike other facts, they need only be proved to the satisfaction of the judge, not that of the jury.3

At common law, a particular rule of foreign law must be proved afresh each time it is pleaded, because the foreign law may have changed since the previous occasion on which it was proved to and accepted by an English court.4

However, the Civil Evidence Act 19725 now provides that where any question of foreign law has been determined in any civil or criminal proceedings6 by a court other than one which can take judicial notice of foreign law, then any finding made or decision on that question in the earlier proceedings shall, if reported or recorded in citable form, be 33

____________________
1
El Ajou v. Dollar Land Holdings plc [1994] 2 All ER 685. But in Saxby v. Fulton [1909] 2 KB 208 CA at 211 notice was taken of the 'notorious' fact that gaming was lawful at Monte Carlo. This was heretical. As to proof of foreign law, see generally R. G. Fentiman, Foreign Law in English Courts (Oxford University Press, 1999).
2
See, for example, Trendtex Trading Corporation v. Central Bank of Nigeria [1977] QB 529 CA.
3
Supreme Court Act 1981, s. 69(5).
4
Lazard Brothers v. Midland Bank [1933] AC 289 HL. But cf. Re Sebba [1959] Ch. 166.
5
S. 4(2).
6
These are defined in s. 4(4).

-33-

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Conflict of Laws
Table of contents

Table of contents

  • Title Page *
  • Contents v
  • Preface to the Third Edition vii
  • Table of Statutes viii
  • Table of Cases xxiv
  • Part I - General Principles 1
  • 1 - Introduction 3
  • 2 - Characteristics of the English 8
  • 3 - Choice of Law Rules 11
  • 4 - Proof of Foreign Law 33
  • 5 - Domicile and Residence 37
  • 6 - Substance and Procedure 60
  • Part II - Jurisdiction and Foreign Judgments 69
  • 7 - Jurisdiction of the English Courts 71
  • 8 - Staying of English Actions and Restraint of Foreign Proceedings 84
  • 9 - Foreign Judgments 109
  • 10 - Jurisdiction and Judgments in the European Union and Efta 131
  • 11 - Arbitration 179
  • Part III - Law of Obligations 187
  • 12 - Contract 189
  • 13 - Tort 220
  • Part IV - Property and Succession 241
  • 14 - Property Inter Vivos 243
  • 15 - Succession 268
  • 16 - Matrimonial Property Relations 277
  • 17 - Trusts 286
  • Part V - Family Law 293
  • 18 - Marriage 295
  • 19 - Matrimonial Causes 319
  • 20 - Children 334
  • Part VI - Exclusion of Foreign Laws 359
  • 21 - Public Policy 361
  • Part VII - Theoretical Considerations 375
  • 22 - Reasons for and Basis of the Conflict of Laws 377
  • 23 - Public International Law and the Conflict of Laws 386
  • Index 395
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