UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

Second Semester 2021/2022

LAW 3207 – PRIVATE INTERNATIONAL LAW

Lecturer: Hubert A. Forrester

WORKSHEET #7: Pleading & Proof of Foreign Law

Introduction
The content of a foreign law is not normally known to the court. As such, it is the party
who seeks to rely on a foreign law who has to plead and prove the foreign law. The lex
fori determines the extent to which foreign law can be considered and how it should be
pleaded.
In regard to pleading and proof of foreign law, there can be said to be 4 presumptions.
First, there is no obligation to allege, let alone prove, foreign law. Secondly, foreign law
is a matter of fact to be proved by expert evidence. Thirdly, the burden of proof lies
upon whoever claims that foreign law departs from the local law. Fourthly, in the
absence of proof to the contrary, foreign law is presumed to be the same as local law.
Pleading of Foreign Law
Foreign Law as a Question of Fact or of Law
Issues before the court are set into two procedural categories: questions of law and
questions of fact. This distinction is important for the following reasons:
1. Questions of law have to be considered by the court ex officio (out of duty)
whereas questions of fact have to be pleaded by the parties;
2. Questions of law are governed by the principle iura novit curia (the court knows
the law); questions of fact have to be proven by the parties.

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 3. The decision of a lower court may be overruled on a point of law, but statements
of fact are binding on the appellate court. However, as it relates to foreign law,
there is an exception to this rule. Appellate courts can therefore overrule a
decision of a lower court on the ground that the foreign law was not applied
correctly (Parkasho v Singh [1968]).
Foreign law is treated as a question of fact in the Caribbean (common law jurisdictions).
In many civil law jurisdictions (mostly continental Europe) it is treated as a question of
law.
Who Pleads?
The reference to a foreign law as the lex causae does not mean that the foreign law will
be applied by the court. The principle that applies is the party who wishes to rely on a
foreign law must plead it in the same manner as any other fact. (Ascherberg Hopwood and
Crew Ltd v Casa Musicale Sonzogno).
No matter how obvious the foreign law may be, the court does not have the power nor
obligation to introduce the foreign law (Warner Brothers Picture Inc., v Nelson; National
Commercial Bank Jamaica Ltd., v Guyana Refrigerators Ltd.).
As such, pleading of a foreign law is entirely voluntary; the parties can choose whether
or not to introduce it.
Introduction of a foreign law is usually made in the pleadings, i.e., formal statements of
claim, defence, reply, counterclaim, etc.

Proof of the Foreign Law

Since the foreign law is treated as a question of fact, the judge is therefore assumed to
have no knowledge of this fact. The parties will plead and prove the existence of the
foreign law through evidence, such as through the use of an expert witness.

Burden of Proof
The burden of proving foreign law lies on the person relying on the foreign law. In
Callwood v Callwood [1960], the Respondent pleaded that Danish law, on the grounds of
community of property, entitled her to her deceased husband’s property (Great Thatch
Island) situated in the British Virgin Islands. The deceased’s son claimed that he was
entitled to the island as the deceased’s heir under English law (the lex situs). The case

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went to the Privy Council where the court ruled that it was the respondent’s burden to
prove that such Danish law existed. The respondent adduced evidence of a judgement
in a US court which made general reference to the idea of community property
according to Danish law. The court found that this evidence was not sufficient to
discharge the burden.

Evidence of Foreign Law

What is required and who can give evidence? S16 of the Evidence Act of Guyana
provides guidance on evidence by expert witnesses. Part 4 states:
“When there is a question as to a foreign law, the opinion of an expert,
who in his profession is acquainted with that law, is the only admissible
evidence thereof, though the expert may produce to the court books
which he declares to be works of authority on the foreign law in
question, and those books the court, having received all necessary
explanations from the expert, may construe for itself.”
So, who is an expert? Part 5 goes on to say:
“It is the duty of the judge to decide whether the skill of any person
in the matter on which evidence of his opinion is offered is sufficient
to entitle him to be considered as an expert.”
Though no doubt the court has a discretion in the matter, the general principle has been
that no person is a competent witness unless he is a practising lawyer in the particular
legal system in question, or unless he occupies a position or follows a calling in which
he must necessarily acquire a practical working knowledge of the foreign law. In other
words, practical experience is a sufficient qualification.
In De Bratt v De Bratt Malone, Snr. J acknowledged that the Court needed the assistance
of a lawyer qualified in the foreign law.
The forum decides whether a foreign expert is competent to give evidence and by this
means it controls the process of proof. Early cases emphasised that expertise in foreign
law was demonstrated by practical experience rather than bare academic knowledge. A
person who had merely ‘read books relating to’ the foreign law did not qualify as an
expert in that foreign law. Opinions offered by someone whose qualifications and
standing as a lawyer were very high did not carry any great weight if that person
possessed only limited practical experience.

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Changes to this line of reasoning appeared in the 20th century with Brailey v Rhodesia
Consolidated Ltd [1910]. Mr. Lee, a Reader in Roman Dutch law at the Council of Legal
Education in London, had made a special study of that law for the purpose of his
lectures to students who intended to practise in Southern Rhodesia. He was admitted
to testify as to Rhodesian law, even though he himself had never practised in that
jurisdiction. This line of reasoning was followed in the Caribbean case of Roywest Trust
Corporation v Savannah NV(1987).
These changes have been codified in English law by the Civil Evidence Act 1972 which
provides that a person is suitably qualified to give expert evidence as to foreign law ‘on
account of his knowledge or experience … irrespective of whether he has acted or is
entitled to act as a legal practitioner’ in the foreign country.
Although no equivalent Caribbean legislation can be found, insofar as Brailey represents
the common law, it can be said that such a similar position would be followed in the
Caribbean. S4 of the Evidence Act of Guyana provides that the common law rules and
principles relating to evidence are in force, providing they are not in conflict with the
Evidence Act or any other laws.

Foreign Law over Local Law

Where there is a conflict between the local and foreign law, the court will apply the
foreign law so long as the evidence adduced satisfies the court of the existence and
application of the foreign law. (Barriero v De Freitas, 1924)

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Reading List
Winston Anderson, Chapter 3: Proof of Foreign Law
Cheshire, North and Fawcett – The Proof of Foreign Law
James McComish - Pleading and Proving Foreign Law in Australia
Evidence Act Cap 5:03

List of Cases
• Parkasho v Singh [1968] P 233
• Ascherberg Hopwood and Crew Ltd v Casa Musicale Sonzogno [1971] 1 WLR
1128
• Warner Brothers Picture Inc., v Nelson [1937] 1 KB 209
• National Commercial Bank Jamaica Ltd., v Guyana Refrigerators Ltd. (1998) 53
WIR 239
• Callwood v Callwood [1960] AC 659
• De Bratt v De Bratt, Unreported, The Supreme Court of The Bahamas,
Common Law Side, Nos. 681/1986 & 682/1986, dated June 20, 1986
• Brailey v Rhodesia Consolidated Ltd [1910] 2 Ch. 95
• Roywest Trust Corporation v Savannah NV, Unreported, The Supreme Court
of the Commonwealth of The Bahamas, Equity Side, No. 431 of 1985, dated
July 22, 1987
• Barriero v De Freitas (1924) LRBG 96

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