Essay: Foreign Law

I. INTRODUCTION
In proceedings with a foreign element there are manifold interactions between the law of civil procedure on the one hand and private international law as well as (domestic or foreign) substantive law on the other hand. The “forum regitprocessum” rule is applied in the process and is performed under the forum law which is approached [“lexfori”], without taking into consideration the applicable law for the dispute in the case. Private international law assigns the relevant domestic as well as foreign law and therefore presents the foundation for a decision on the merits (lexcausae). Issues emerge when the system of Conflict of Laws allude to law of a foreign country, since its substance ordinarily is obscure to the court. In this circumstance it is once more for the lexfori to settle on the issue whether it is mandatory for the court to make application of a foreign country and by which means he might determine the substance of the lexcausae.
Therefore, in civil proceedings between two parties from different countries the procedural law plays a very vital role, it govern not only the proceedings but by setting up precise procedural fundamentals for its application but it may limit the scope of private international law i.e parties’ obligation to plead application of law of a foreign country. Besides, it is the procedural law of the forum which decides the issues that to what degree and by which means a judge is permitted to look at the substance of foreign law. This study will look the analyze the procedural aspects of application and proof of foreign law in a forum and while doing it the study has been divided into 3 major heads i.e. 1) Starting with the basics of the status of the foreign law and when does the issue of applicability of the foreign law emerges; 2) This section will discuss in detail about the procedural aspects and what is the consequences of treating a foreign law as a fact and will then lay down how is a foreign law proofed in a court of law. 3) This section will merely list down the exceptional circumstances in which the application of foreign law is not allowed by the court.
II. STATUS OF FOREIGN LAW
Courts have referred to laws of foreign countries in adjudicating disputes for well over a hundred years. Yet courts view “law” as including forum law, and deemed foreign principles to be facts to be proven like other facts in the case , as long as they are well established. The notion is that true “law” is only those norms that have binding force in the court’s territory. In practice however, matters regarding foreign country laws are for more challenging. In numerous occasions, courts might merely apply forum law if the parties do not plead or entirely brief questions in relation with the law of foreign country. The court confronted with insufficient proof of the substance of foreign country law will often merely “make application of the forum’s law; relying on the traditional Private International Law presumption that foreign is the same as that of the forum. The court may simply assume “from the absence of sufficient proof of foreign law that parties have consented to application of the forum’s law.” Alternatively, the courts have been known heavily favor domestic law when undertaking a full scale choice of law analysis, so as to ensure that easily ascertainable and known domestic law ultimately governs.
From the early eighteenth century, English law depends on the rule that law of foreign country is to be dealt with as an issue of fact. The fact doctrine depends on the old dissimilarity among the courts of admiralty and the common law court courts. While the previous had jurisdiction in matters with a foreign element, the latter chose absolutely domestic issues. Common Law court will undoubtedly regard law of a foreign country as a “fact” because of the fact that English law was the main “law” they can possibly apply when the court’s jurisdiction gets extended to disputes with a foreign component. Dicey’s “vested rights theory” in the early 20th Century served as an added explanation for applying these foreign law as a fact.
III. PROOF OF FOREIGN LAW
A. Consequences of Treating Foreign Law as Fact
1. Foreign Law should be Pleaded like a Fact
It is a general rule that, a party must plead a foreign law as a fact is pleaded if it wants it wants application of such foreign law. If this is not done, the court will assume that, the concerned law is same as the law of the forum and threat the dispute at as a domestic case of the forum. Foreign law is required to be proved as to the satisfaction of court just like a question of Fact. Courts should not sue moto take the cognizance of a foreign law. It must be specifically pleaded by the parties. It must be proved to the satisfaction of court just like any other matter.
2. Foreign Law should be Proved like a Fact
Just as facts are proved, the foreign law must be proved in the same way, i.e. by qualified witness who is considered expert in that field, but such testimonies are not necessarily regarded as decisive. It is inadequate to establish law of a foreign country by a translation, and after that leave the court to interpret it. Interpretation of an expert in this regard is necessary. The burden of proof for proving the application of foreign law is on the party who is relying on it. However if a foreign law is admitted then it did not needs prove. Also, the courts with consent of the parties can decide upon a question of foreign law without proof in exceptional circumstances. It is, certainly, accurate that when the party submits a statute to sustain his proof, the statute forms part of his evidence, and must be considered in the consideration of his evidence as a whole. Further in the Case of Buerger v. New York Life Assurance Co., Atkin L.J., while dealing with Russian law held that:
“And it is also true that where experts on the foreign law differ amongst themselves, the court will often have to resolve the conflict by looking at the statutes or documents and deciding for themselves the more probable contention. And it may also happen occasionally that a foreign expert may arrive at results so extravagant and involving such a misunderstanding of conceptions familiar to lawyers of all countries that an court may have to reject his evidence, and eventually come to the conclusion that they can safely interpret the words for themselves, or fall back upon the presumption that the proper methods of construction coincide with the English.”
3. Judicial Notice
Even in case that a foreign law has already been dealt with in a previous case, the court is not entitled to take judicial notice of such foreign law merely because the foreign law is regarded as a question of fact. The court should adjudicate upon the evidence submitted. The ruling of law is that the judicial notice of foreign law is not taken in a court of law and such laws are regularly subject of evidence entails that it should be established as questions of fact.
The court shall take judicial notice of, inter alia, all laws in force in the territory of India. Foreign laws are not included therein. Evidence Act allows evidence being tendered and expert opinion being given in support of proof of foreign law. Every pleading shall contain a statement in concise form of material facts relied on by a party but not the evidence nor the law of which a court may take judicial notice. However the rule in relation to pleading law is limited to that law only of which a court is bound to take judicial notice. When it is established that, the court will not take judicial notice of foreign law, it has to be pleaded like any other facts if at all the parties want to rely on it. The core principle is there in commonwealth private international law according to which courts can’t take judicial notice of the foreign law even when such law has been selected by the forum’s choice of law rules.
4. No Effect of Appellate Holdings on Other Cases
Foreign law cannot be established by referring to the preceding judgment of the Court which decided on the alike foreign law. The reason is that, foreign law are notion of a foreign foundation are merely questions of fact and the courts might not in general at common law place reliance on a such foreign law ruling as precedent.
B. Proof of Foreign Law Treated as a Fact
1. The Presumption that Foreign Law is the Same as Domestic Law
The onus to prove foreign law is on the party who wants its application on the case in dispute. If evidence in this regard is not provided, the court will normally presume that on the point of consideration both the law, i.e. forum law and foreign law, are same until a contrary is established. But this cannot be taken as a general rule and deviation have been seen when a foreign law is beyond the scope of common law. Uncertainties have also been shown on the issue whether the court is entitled to draw a presumption of similarity between law of the forum and foreign law. It is undoubted that to ascertain the intention of the parties it is necessary to put into consideration the law which the parties referred when they entered into the said transaction instead of the forum law where the proceedings are initiated. Moreover, inference in favor of application of foreign law can be drawn when it is clear that the domestic law differs from the foreign law by all means. The Privy Council, in 1918, while dealing with the same issue of presumption has ruled that:
“But having regard to the presumption that unless the contrary be proved the general law of a foreign country is the same as the English law, the mere fact that the contract was entered into with reference to the law of another country will be immaterial.”
But if the foreign law is pleaded and proven by the party who are wishing to rely on it then the court by default can apply the law of the forum on presuming that that law is same as the forum’s law or that the foreign law has not been established sufficiently.
2. Proof of Written Foreign Law
In above chapters is has been comprehensively established that, courts are in general not entitled to take judicial notice of foreign law for the reason that they are considered as fact. Moreover, when such law is in written form, it is not the language but law as per the exposition, interpretation and adjudication which is to be deliberated upon and the courts generally cannot interpret such written form of law all by themselves without taking support from an expert in the concerned area of law.
It was in fact considered in the past that the correct means of establishing written form of foreign law was by submitting a copy of its substantiation. The Sussex Peerage case, on the other hand, which is known for providing a customary common law method for establishing law of foreign country in England, recognized that the foreign law must be proved only by the expert witness and not by submitting simply a reproduction of a written form of foreign law.
3. The Role of an Expert Witness on Foreign Law
In India evidence of an expert on foreign law a relevant fact. The foreign law in forum courts has to be proved through the experts in that particular law. Today, courts routinely require parties to provide references to foreign law, and parties sometimes fulfill that obligation by soliciting testimony of actual foreign officials to establish the substances of the foreign laws. Parties do not need to secure cooperation of the foreign officials and most commonly simply hire a foreign expert.
Unlike English law which only provides for proof of foreign law only by expert evidences, Indian law provides for such proof, which authorizes the courts to take judicial notice of a foreign law written in a book issued by or under the authority of the foreign Government of a foreign country. It is always for the courts to judge the evidence of an expert and if an expert in foreign law says, the law in his country is this, and if that evidence is accepted by the court, that may be a finding of fact. If, in contrast, the expert submits the foreign law and accordingly establishes the substances thereof, his testimony with regard to the interpretation of such law will be subjected to inspection by the court and is positioned in balance with the evidence provided by other experts.
The court may draw any assumption when issue is in knowledge and skill of the expert from the fact that the expert may serve as guide in this regard. Therefore, what a law is should constantly be a question of court’s finding when a witness produces evidence as to the substance of the foreign law. The same is also recognized in England, the court is at liberty to examine the law even if the witness’ opinion is an outcome of his own practical experience and knowledge of the foreign law as it is open for him to make reference to treaties and foreign decision to refresh is memory.
IV. EXCLUSION OF FOREIGN LAW
On the basis of rules of choice of law, Indian courts will more often apply the foreign law for rendering justice to the parties before it. The Indian courts will do the same even if the application and acceptance of foreign law under the given circumstances may prove to be against the policy of India law which the courts generally apply in a domestic case. In a case of Insolvency the Indian courts would recognize the status of insolvency as it is established by the foreign court in relation to the property which is situated within jurisdiction. The English courts too have exhibited a constructive and cosmopolitan approach by their willingness to generally making a contract enforceable which is valid by its governing law. Even though the contract is without a valid consideration, is champertous, or is the one which oust the jurisdiction of a foreign court or is for a loan which is not recoverable under the domestic English law.
Similarly, the English Courts have also shown some liberal attitude by recognizing polygamy , marriage below age of consent, marriage within prohibited degrees and marriage by proxy.
A. Public Policy
As per the general principle of Private International Law that a court will not apply of even recognize and foreign law that when it is against the public policy of the ‘lexfori’. As it has been rightly pointed out by Dicey:
“Courts around the world argue alternatively, on application to a dispute otherwise governed by foreign law those principles of their own law which, in their own view, express basic ideas of morality.”
A similar proposal has been uttered by Prof. Stumberg in relation to this rule, “Relief may be refused at the forum because of disapproval, on grounds of policy there, of the particular cause of action as such.” In the reaction of Judge Bench, a contrary view can be established, who wrote:
“It would be an intolerable affectation of superior virtue for the courts of one state to pretend that the mere enforcement of a right validly created by the laws of a sister state ‘would be repugnant to good morals, would lead to disturbance and disorganization of the local municipal law,’ or would be, of such evil example as to corrupt the jury or the public.”
Indian Court can’t enforce a contract if the fact of the case is such that the enforcement of the contract would be opposed to the Indian public policy or if such contract is obtained by fraud. The India common law recognizes the principles that it will not enforce or recognize a right which is based on the foreign judgment, if such recognition of the right is not in line with justice or is opposed to morality or is obtained by fraud, or is unconscionable.
Public policy is an inclusive concept on the basis of which on the Indian Contract Act, 1972 declares the following transactions Void: a contract which is in restraint of trade , marriage or legal proceedings, an agreement interpretation of which is uncertain or is not capable of being certain, a wagering contract etc.
However, if a contract is subject to two jurisdictions, the parties have the liberty to choose between any of the two. This exercise of choice is not against the public policy and contract and is valid. Also in the cases where the parties to the contract have chosen the forum, recourse may be had to another problem if it satisfies the balance of convenience or it is Instrumental in promoting International Trade and commerce.
Even though party autonomy prevails and is the crux of many agreements, but when two parties form India enter into a contract and choose to be governed by a foreign law, such a clause can be seen as an attempt to derogate form the existing domestic law under which the whole dispute arises. Such an attempt can be seen against public policy. It has been long before established in TMD Infrastructure Case, that Indian nationals cannot be allowed to derogate from applicable India law which is the clear intention of the legislature and doing contrary to the above will be against public policy. But a contrary view on whether parties can by an agreement exclude the application of Part I of Arbitration and Conciliation Act, 1996 in the case of Reliance Industries Limited & Anr v Union of India and Delhi Airport Metro Express Pvt. Ltd v CAF India & Anr, where the Delhi High Court held that, party may in part or on full, exclude the application of Part of I of the said Act.
B. Foreign Penal Law
In conflict of law courts will not enforce a foreign law, either directly or indirectly. A penal law is different from a remedial law. The penal law gives the punishment for the breaching of a duty to the state, on the other hand under the objective of remedial law is to give compensation to the private person for damages which he has suffered due to the breach of duty which is owed to him. The question that whether a foreign law is penal law or not is to be decided by the court irrespective whether the foreign law agree with the fact or not. The amount of money which an individual may claim due to him under the foreign law should not be deemed as a penalty unless it is recoverable at the inatsnce of officials of foreign state concerned
In cases where the foreign law which is in question is partly remedial and partly penal, the court of law will chose to enforce only those rights which are arising under the remedial part to the exclusion of the other penal part. The court may enforce a foreign penal law for the other purposes like not to make a contract enforceable which will lead to commission of crime in that state or for that matter any foreign law which is discriminatory on the grounds religion race or is threat to human rights.
C. Foreign Revenue law
For the purposes of enforceability foreign revenue law can be compared to domestic revenue laws. Both of these signify exercise by the concerned stated of its sovereign power which is not of any importance for third states. The foreign revenue laws will neither confer a benefit nor impose a burden on the persons of other states. However states can recognize the revenue laws of third states on the basis of comity principle.
The courts will not enforce a foreign revenue law wither directly or indirectly. However for assisting a foreign court for obtaining the evidence of the proceedings for enforcing a foreign law in the foreign country would not be considered as enforcement. The action of collecting tax of the foreign country would never be entertained by the court even if it is claimed by calm liquidator at the time of winding up of the company or it be a garnishee order in respect of tax from the plaintiff.
V. CONCLUSION
To conclude a foreign law in a forum court is regarded as fact and unlike English court which allow only expert opinion to prove a foreign law, Indian courts allows written form and well as testimony of expert which may not be conclusive. It is for the parties to establish the foreign law failing to which the court will apply the forum law on the presumption that foreign law is same as the forum law. Thus the party who wants to rely on the foreign law has the burden of proving that its content is different from law of the forum.
The Indian courts are not expected to research into the concepts of foreign law or the law which has the foreign origin. A foreign law or the concepts of foreign law are required to be proved in the civil proceedings by the witnesses which are properly qualified by the virtue of their knowledge and experience and those who have the competency of giving the expert evidence on the major questions of law of any country. It is not important that they have practiced or are entitled to practice in the court of law of that country.
The court will generally accept the expert witness if it is not contradicted or if the witness is not obviously unreliable or extravagant. The courts are entitled to examine any material which the witness deposits in the court as evidence. If there in any conflict in the interpretation of any material which is produced as evidence, the court has the power to examine the material and draw its own conclusion. As a final remark, application of foreign law is specifically excluded in on the grounds of public policy and this serves as a exception to the notion of party autonomy.