Proof and application of

foreign law
• Two basic question to be decided by the court before applying foreign
law :
• 1. how is the court to ascertain what the foreign law is
• 2. whether there are any reasons not to apply it in particular case

• What the foreign law is , is regarded as a question of fact, generally

proved by expert evidence.
• In determining the question of fact, the parties may prove it by
evidence, oral, documentary or by expert witnesses and the burden of
proving the foreign law lies exclusively on the parties
Proof of foreign law – Position in England
• In England, courts generally insist on expert evidence being led on what the foreign law on
an issue is:
• In any case to which foreign law applies, that law must be pleaded and proved as a fact, to the
satisfaction of the judge by expert evidence or, sometimes, by certain other means.
• In the absence of satisfactory evidence of foreign law, the court will apply English Law in such a case.
• This rule has been set out and approved by the Court of Appeal. (Bumper Development
Corpn. Vs. Commr. Of Police of Metropolis)
• English courts do not take judicial notice of foreign law, except of facts described as
notorious such as: the fact that gambling is legal in Monte Carlo (Saxby vs. Fulton): in a few
cases, however, they have apparently applied foreign law without it being proved before
them.
• English courts have been quite flexible in determining who can be regarded as an expert
on foreign law. Who can be regarded as an expert would depend on the precise character
of the question on which expert evidence is required.
• Experts are usually lawyers Academy professors familiar with the law but the
evidence of the others knowledgeable in the law is accepted.
• In addition to lawyers practising in the foreign country concerned, English
courts have regarded a range of persons whose evidence they would accept
to prove foreign law:
• Bishop: The evidence of a Roman Catholic Bishop was accepted to prove the matrimonial law in
Rome.
• Bank Manager: When the question related to commercial matter, the evidence of a bank
manager with 47 years of experience was allowed to establish the meaning of Chilean bill of
exchange. The privy council has held that a bank manager with many years of experience in
Nigeria can give expert evidence as to the exchange control law of Nigeria.
• Diplomats: The evidence of an Iranian diplomat who was required to be ‘thoroughly familiar’
with the law of Iran was accepted when it was shown that at that time there were no
professional lawyers in Iran. Similarly, the evidence of the Russian Ambassador was accepted to
prove the rules of succession to a member of the Imperial Russian Royal Family.
• Hotel Keeper: The evidence of a Belgian hotel keeper conversant with commercial matters was
accepted to prove the Belgian Law relating to promissory notes.
• Non-practising Lawyer: The evidence of a lawyer who had made a special study of Roman-Dutch
Law was admitted to prove that law in Rhodesia even though he has never practised there.
• Notary: The evidence of a notary, was not a qualified Chilean lawyer, was accepted to prove the
powers and duties of executors in Chilean Law.
• Section 4(1) of the English Civil Evidence Act, 1972, permits expert evidence on
foreign law of persons suitably qualified to do so on account of their
knowledge or experience irrespective of whether they have acted or are
entitled to act as a legal practitioners in that foreign country; the provision is
essentially declaratory of the law as laid down in the decisions.
• English courts give considerable weight to the judgements of foreign courts as
evidence of foreign law, provided that they are duly proved by expert evidence,
but such judgements are not regarded as binding on English courts if they are
satisfied that the judgements do not reflect the correct position in that law.
• When the judgements in the foreign country in question, conflict, and there is
no decision regarded as binding in that country the English court has to choose
between them.
• Courts in England are chary of conducting their own research in what the
foreign law is, but can, and should look at the original sources if expert
evidence is conflicting. It is permissible to refer to decisions of court in the
country concerned and this should be done.
 Position in India
• How foreign law can be proved is provided for in the Indian Evidence Act, 1872.
• Section 38 of this act provides that any official publication of a foreign country containing its laws or law reports
can be admitted in evidence.
• Section 45 provides that expert evidence can be laid on what the foreign law in a given case is. Under section 45,
a person who is specially skilled can give expert evidence on the subject. The flexibility of the language gives
considerable latitude to a court to decide who can be regarded as an expert.
• Under Section 78, ‘public documents’ include the legislative acts of any country.
• Under Section 82 of the Evidence Act, such documents shall be admissible in India for the purpose for which
they are admissible in England or Ireland. There are several enactments in England under which documents are
admissible in England without proof of seal, stamp or signature.
• Under Section 81, "can presume to be genuine official copies of British Parliamentary Statute.”
• In a matter under Section 45 of the Arbitration and Conciliation Act, 1996 the Supreme Court was considering an
agreement containing an arbitration clause governed by Japanese law, and the question was whether the
agreement was null and void, inoperative or incapable of being performed. The Supreme Court held by a
majority of 2:1 that Japanese law could not be proved by affidavit evidence, and evidence should be laid as in a
trial.
• In Re Goods of D McIntyre, a question arose whether a holograph Will made in Scotland was valid, as the
testator was domiciled in Scotland: the court declined to rely on a treatise on Scottish law but accepted the
expert evidence of a lawyer in Scotland. The same view has been taken by the Bombay High Court.
• Both High Courts and Supreme Courts have also often referred to decisions of English, Australian and American
Courts to set out the position in the laws in those countries.
• The Indian law accepts the English law and lays down that the foreign law is a question of fact. Section 45
of the evidence act provides that.
• The Suganchand Bhinkimchand vs. Mangibhai Gulabchand, it has been opined that a judgement of the
highest court of a foreign country is the best evidence as to the law that foreign country.
• In Palaniappa Chetty vs. Nagappa Chettiar, has been held that although the evidence of an expert on a
point of law of a foreign country is the usual mode of providing foreign law, the court should itself interpret
the provisions of foreign law and should not rely on the interpretation of expert howsoever eminent he
may be.
• Section 84 of the Evidence Act, 1872 provides that “The court shall presume the genuineness of every
book purporting to be printed or published under the authority of the government of any country, and to
contain any of the laws of that country: and of every book purporting to contain reports of decisions of the
court of such country.”
• Regarding Public Documents Section 74 of the Evidence Act, 1872 states that “The following documents
are public documents;
• (1) Document forming the acts or records of the act (i) of the sovereign authority; (ii) of official bodies and
Tribunals; and (iii) of public officers, legislative, judicial and executive, of, or of foreign country;
• (2) Public records kept in any state of private documents
• Hence, the records of confession of an accused person recorded before a magistrate is public document.
The record of proceedings of a foreign court is a public document. The passport obtained from the foreign
government is a public document.
• Thus, under Indian laws:
• (i) the foreign law may be proved by expert evidence; or
• (ii) the court may take judicial notice of a publication containing foreign law provided it is published under the authority
of the government.
Application of Foreign Law
• Once the foreign law is duly proved, the court is entitled to ascertain
the proper meaning of the text itself. The Supreme Court has
expressed the same opinion after citing De Beeche vs. South Americal
Stores Ltd. and Chilean Stores Ltd. observing:
• “therefore, ultimately it is for this court to resolve the conflict by
looking at the admitted text of the French law and the material on
record to decide the proper application of the provisions”
Presumption if Foreign Law is not Proved
• If a party contends that in determining the issue before the court, the
court should apply foreign law in a particular case, the burden is on
the party so contending established what the foreign law is. If he fails
to do so, or leads insufficient evidence to do so, the court applies the
lex fori.
Exclusion of foreign law
Basis of Exclusion of Foreign Law
• Under certain circumstances, private international law of a country applies
foreign law. However the application of foreign law is excluded due to
• Ordre Public i.e., Public Policy;
• Being Penal Law; and
• Being Revenue Law
• The civil law doctrine of our Republic under which any domestic rule
designed to protect the public welfare must prevail over an inconsistent
foreign rule.
• Similarly, the English doctrine of the forum must be preferred withholds all
recognition from any foreign law judgement which is repugnant to the
distinctive policy of English law, and it refuses to enforce any foreign law
which is of penal, revenue or other public law nature.
• Furthermore foreign expropriated laws will in some circumstances not be
recognized and in other circumstances although recognized will not be
enforced. Finally the mandatory rules of the forum may be applied, with the
result that to that extent, foreign lawyers excluded
• Thus, under the English private international laws, the
application of otherwise applicable foreign law may be
excluded under the following heads:
• (i) foreign law is against the public policy;
• (ii) foreign laws penal law;
• (iii) foreign law is revenue law; and
• (iv) mandatory rules.
Meaning of Public Policy
• According to Graveson, “public policy” is an in definite concept which indicates those matters
regarded by Parliament or the court as clearly of fundamental concern to the state and society at
large.
• “Public Policy” is equivalent to “Policy of the Law”. It is applicable to the spirit as well as the letter.
Whatever tends to injustice of operation, restraint of liberty, commerce and natural or legal rights,
obstruction of justice, violation of statute, against good morals is against public policy.
• Public policy is not the policy of a particular government. It connotes some matter which concerns
of public good and public interest. The principles governing public policies must be an a capable,
on proper location of expansion or modification.
• The expression public policy means and includes a wide range of topics, such as trading with the
enemy in time of war, stifling prosecutions champerty and maintenance, and various other
matters which recognise certain recognised matters. The doctrine of public policy cannot be
extended beyond the classes of cases already covered and the courts cannot invent a new head of
public policy. An agreement which would contravene a covenant or clause in the lease of grant by
the government would not be one opposed to public policy as such.
Foreign Law Repugnant to the English Public
Law
• There has been considerable debate about the basis of this rule. One suggestion is that
recognising such foreign laws, which are based on the exercise of foreign powers by the
foreign state, would be contrary to the concept of independent sovereignties.
• The English law relating to exclusion of foreign law by operation of doctrine of public policy
is formulated by Dicey and Morris thus;
• "the court will not enforce or recognise a right, power, capacity, disability, or legal relationship arising
under the law of a foreign country. If the enforcement or recognition of such right, power, capacity,
disability or legal relationship would be inconsistent with the fundamental public policy of English
law.”
• The house of lords has held that the field of public policy is narrower in the field of conflict
of laws than in municipal law, in part because recognising and applying for a law in foreign
judgement is itself a rule of public policy
• It is well established principle that any action brought in England is subject to the English
doctrine of public policy. There is a distinctive policy, or, what West Lake calls a “stringent
domestic policy”, adopted in England to which the application of foreign laws must always
remain subject. Certain heads of domestic doctrine of public policy command such respect
and certain foreign laws and institutions seem so repayment to English nations and ideals
that English view must prevail in proceedings in England. If the courts decide that having
regard to the particular circumstances, the distinctive policy of English law is in truth
affected, then the incompatible foreign law must, indeed, be totally excluded.
The areas where the doctrine of public policy
has been applied
1) International Relations : English law cannot be invoked to assist private transactions which, by the illegal
purpose may threaten to compromise friendly international relations between England and the rest of
the world. In De Wutz v. Hendricks, the English court refused to enforce a contract made in England for
a loan of money intended to assist a rebellion by subjects of a friendly state.
2) Trading with an alien enemy : Public policy will invalidate an act which would result in giving comfort or
assistance to the enemy in time of war. The test is the empirical one of the actual probable result of the
transaction, not the intention of the parties, so that a contract which involves both enemy and neutrals
and only indirectly assess the enemy will be invalidated. (Dynamit v. Rio Tinto Co.)
3) Contracts in restraint of trade : Contract in restraint of trades contracts involving trading with the
enemy, champertous contract, the stifling of criminal prosecution, corrupt and collusive arrangement
for divorce, a contract obtained by coercion, duress or contracts that are prejudicial to the relations of
the UK with foreign states, are some of the instances of the operation of the doctrine of public policy.
(Rousillon v. Rousillon)
4) Liability of permanent maintenance of illegitimate children : In Re Macartney, the mother of an
illegitimate child sought to enforce in England against the estate of child's deceased father a valid
judgement of the court of the parties domicile (Malta) for the payment of maintenance to the child for
the duration of his life. The English court declined to enforce the judgement and observed, this is not a
penal action, nor is it directly a case so contract to general morality as could not be entertained in this
country. It is however a claim of a kind which would not only raise no cause of action here, but in my
judgement is contrary to public policy. That is to say that the general permanent recognition of
illegitimate children and their mothers as recognised in Malta, is contrary to the established policy of
this country.
English Ideas of Justice and Morality
For English courts the overriding test of fairness and honesty is the English conception. Transactions denied
enforcement under the principle of justice and morality fall into three main groups:
1) Contracts tainted with immorality in a wide sense : It cannot be doubted that a contract or other
transaction which is objectionable in English English eyes on the ground that it tends to promote sexual
immorality will not receive judicial recognition in England, though it maybe innocuous according to its
foreign lex causae. Under this head English courts have refused to enforce agreements, valid according
to the proper laws, for the suppression of criminal proceedings or of a champertous nature. Thus
foreign contract, transaction law or judgement violative of English idea of the morality will not be given
effect to. Similarly a foreign judgement violative of the principles of natural justice will not be enforced.
2) Acts contrary to English Ideas of Justice : Justice in this connection at times bears a wider meaning of
natural justice, and applies particularly in the recognition and enforcement of foreign judgement. If in
the opinion of the court, inadequate notice of the foreign proceedings have been given to enable the
defendant to appear or defend any consequent decree or judgement will be refused recognition in
England. Similarly, the court will not enforce a foreign judgement in which foreign court had an interest
in the outcome of the proceedings on the principle that no man should be the judge in his own case.
3) Foreign Confiscation and requisition of property: With regard to the recognition of title to property
based on a foreign confiscatory decree, the English courts generally adhere to the territorial concept of
State power i.e., a foreign state has authority to deal with all matters within its territory, but not
beyond. A decree will, therefore, be recognised in England it deals only with property or persons,
including corporations, within the territorial jurisdiction of the enacting State. It will not be recognised
or given effect to in relation to property, outside the territory or control of the foreign power as the
date of the decree.
Position in Australia
• Courts would exclude foreign laws on grounds of public policy, the
rules being related to rules to protect the domestic and external
interest of Australia, and the moral interest of universal application.
The leading Australian textbook cites mainly English decisions. In
obiter observations, the High Court of Australia has observed that the
court ought not to enforce a foreign law infringing human rights.
Position in Canada
• A foreign law would be regarded as contrary to public policy if it
offends some fundamental principles of justice, offends international
norms or some prevalent conception of good models, or some deep-
rooted tradition of the forum.
• The mere fact that the lex fori differs from the applicable foreign law
would not justify its exclusion on the ground of public policy.
Exclusion of Penal Laws
• Penal law is a law which imposes punishment for an offence against the State or
some division thereof.
• A penal law is equivalent to criminal law.
• Penalty is a fine or other exaction imposed by the state or some violation of public
order of a criminal complexion.
• In Huntington V. Attrill, the Privy Council expressed that, “the proper test for
ascertaining whether an action was penal is that proceedings must be in the nature
of a suit in favour of the State whose law has been infringed. Any pending penalties
imposed must for this purpose be recoverable at the instance of the States or of an
official duly authorised to prosecute on its behalf, or of a member of the public in
the character of a common informer.
• The imposition of a penalty reflects the exercise by a state of its sovereign power
and it is an obvious principle that an act of the sovereignty can have no effect in
the territory of another state.
• As the word penal is equivalent to criminal, it does not include all penalties such as
the ones that are included in commercial contracts, the purpose of which is the
speedy performance of the contractual obligations.
 Exclusion of Foreign Laws
Expropriating Property
• English courts classify foreign expropriatory legislation in several categories: laws
requisitioning property when the ownership of the property remains unchanged,
but position is taken over temporarily during some period of emergency;
nationalisation laws, and compulsory acquisition laws, in which ownership of the
property is taken over either as a measure of social economic policy or in the
public interest, on payment of compensation; and confiscatory laws in which the
ownership of the property is taken over without the payment of any
compensation.
• Generally, courts will recognise as valid and enforceable in England, such laws in
respect of property situated in the state which enacts such legislation, and this
would be so even in respect of property belonging to non-nationals of that
country. The only exception could be if it is found in the foreign law in question is
in violation of human rights or international law.
 Exclusion of other Foreign Public
Laws
• Apart from laws imposing penalties, and the laws connected with
taxes, courts may decline to enforce a third category of foreign laws,
described as ‘public laws’. Some hypothetical illustrations of such laws
have been suggested.
• A claim by the Islamic Republic of Iran for the recovery of antiquities
excavated in Iran and unlawfully exported from Iran was enforceable
in England; the Iranian law was not penal or confiscated, or
retroactive, it was an assertion of a patrimonial claim to antiquities
forming part of the Iranian national heritage. (Islamic Republic of Iran
v. The Barakat Galleries Ltd.)
 Exclusion of Foreign Revenue Laws
• Revenue laws a law requiring a non-contractual payment of money or a kind in favour of the
State or some department or subdivision thereof. Thus, laws imposing income tax, custom duty,
stamp duty, succession duty, municipal contribution, capital gains tax, compulsory contribution
to the State insurance scheme and a profit levy have been held to be revenue laws.
• Ever since Lord Manfiled’s remarks in Holman v. Johnson, that “no country takes notice of the
revenue laws of another” it has been the traditional view that no action lies in action for the
revenue of a tax, public or local, including such forms as customs, excise and death duties, or
other monitory imposition levied by a foreign state with a foreign municipal authority.
• In Re. Visser, the Queen of Holland claimed for estate duty against the English property of a
deceased Dutch national dying domiciled in Holland. Tamlin J., remarked “the court will not
collect the taxes of foreign States for the benefit of the sovereigns of those foreign States.”
• In Government of India v. Taylor, the House of Lords, affirming the judgements of the High Court
and the Court of Appeal, observed: “Tax gathering is not a matter of contract but of authority
and administration as between the State and those within its jurisdiction.”