Foreign Law in English Courts: Pleading, Proof, and Choice of Law

Foreign Law in English Courts: Pleading, Proof, and Choice of Law

Foreign Law in English Courts: Pleading, Proof, and Choice of Law

Foreign Law in English Courts: Pleading, Proof, and Choice of Law

Synopsis

The pleading and proof of foreign law are often treated as atters of peripheral importance. But, in reality, how foreign law is established, and whether is must be established at all, are central issues in private international law. Whether litigants are free to ignore the foreign elements in a dispute goes to the heart of the conflicts process, and without effective means to establish foreign law the very purpose of that process is subverted. Such issues give rise to particular problems in English law. It is often unclear whether the rules for choice of law are mandatory, and whether the application of foreign law is therefore required. The cost and uncertainty of establishing foreign law may also affect how cases are argued and decided, and may discourage litigants from suing at all. This book, the first to examine the topic from the perspective of English law, offers a radical reappraisal of a long-neglected subject. Fentiman argues that the law is both more complex, and more defensible, than had previously been supposed. He provides a practical guide to the subject and in so doing presents the conflict of laws in a way which is both novel and illuminating. The book will be recognised by practitioners and scholars alike as a welcome addition to the series of Oxford Monographs in Private International Law.

Excerpt

This volume is the second contribution to the series, Oxford Monographs in Private International Law. The aim of this series is to publish works of originality and quality on a number of important and developing areas of private international law. Contemporary private international law is a subject characterized by a marked interaction between scholarly and practitioner interests. The series is designed to accommodate this.

In England ascertainment of the rules governing pleading and proof of foreign law has traditionally been regarded as involving no more than the provision of simple answers to a few apparently simple questions. Is foreign law to be treated as law or as fact? If fact, who decides it, judge or jury? If judge, may he take judicial notice of it? If not, may he rely upon all relevant evidence? Where does the burden of proof lie? What standard of proof is required? What is the position if the content of foreign law is neither judicially noticed nor proved? The present author, however, reveals a more complex, and more sophisticated, underlying pattern. Moreover, he sees the issues involved in the wider context of the whole choice of law process. He not only investigates doctrinal implications of pleading and proof of foreign law, but he also explains and demonstrates its importance in practice. This volume can indeed be seen as a good example of the achievement of the aim of the series, Oxford Monographs in Private International Law.

Wadham College, Oxford

1 November, 1997

P. B. CARTER

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