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Cheshire, North and Fawcett: Private International Law, 15th Edition by Grušić, Uglješa; Heinze, Christian; Merrett, Louise; Mills, Alex; Otero García-Castrillón, Carmen; Sophia Tang, Zheng; Trimmings, Katarina; Walker, Lara (28th September 2017)

Part II Preliminary Topics, 7 The Proof of Foreign Law

Paul Torremans

From: Cheshire, North and Fawcett: Private International Law (15th Edition)

Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett

Subject(s):
Choice of law clauses — Applicable law — Limitations on jurisdiction — Burden of proof — Witnesses

This chapter examines the question of proof of foreign law and particularly the onus of proving that the foreign law is different from English law. Foreign law is treated as a question of fact, but it is ‘a question of fact of a peculiar kind’. To describe foreign law as one of fact is apposite, in the sense that the applicable law must be ascertained according to the evidence of witnesses, yet there can be no doubt that what is involved is at bottom a question of law. The courts have concluded that a mistake as to foreign law is to be regarded as a mistake of fact. This chapter first explains how foreign law is proved, including the use of expert witnesses, before turning to witnesses who can prove foreign law. It also considers the role of the English courts under the Civil Procedure Rules in dealing with expert evidence.

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