Procedure & Evidence
Rules of the forum
Even when foreign law applies, the courts will apply their own procedural law. The rules of the state must distinguish between matters of substance and procedure.
Matters of procedural law as opposed to substantive law are governed by the domestic rules. This may lead the procedural domestic rule to apply the foreign law in a way different to that in which its own jurisdiction’s courts would apply it.
European legislation on conflict of laws must be applied so as to achieve uniform application. However most such rules provide that the court shall follow their own domestic  rules on evidence and procedure. In some cases, the definition of procedure for the purpose of conflicts of law rules for European Union legislation may differ to that adopted by domestic courts.
Domestic Rule Apply
Courts apply their own procedural and evidence rules, including rules relating to the course of court proceedings and methods of execution.
Courts may apply the foreign substantive law of another jurisdiction; however, they will follow their own procedural rules.
Domestic law determines the procedure in the trial. The capacity and ability of a witness to give evidence are procedural. This covers the issues of competence, compellability and privilege.
The principle that domestic law applies to procedural matters is a practical necessity. Although a court may hear evidence of foreign law and apply it, it cannot, as a practical matter, apply another jurisdiction’s procedural rule.
Evidence
The rules of evidence are procedural. Questions as to the admissibility of evidence are determined by the domestic law. Evidence may be allowed, that would be inadmissible under the law of the jurisdiction of the foreign law which apply.
The rule is not strict. Where compliance with domestic rules of evidence is impractical, given the manner of proof of particular matters, the domestic court may be prepared to bend and waive its own rules.
The burden of proof is determined by domestic law. Generally, common law requires proof of a claim in a civil case on the balance of probabilities.
Procedural or Substantive
Limitation periods have been traditionally prescribed as procedural matters. Under the Rome Regulation it is treated a substantive rule. Matters of the burden of proof and presumptions are generally governed by the applicable law and not the law of the court.
Issues may arise as to what is categorised as procedural or substantive. For example, the statute of limitations is traditionally categorised as a procedural matter in Ireland and the UK. This arises from the fact that the statute of limitations is not a substantive rule but is a procedural bar to proceedings.
However, the Brussels Regulations and Rome and Rome II Conventions treat it as a substantive rule. Where the rules extinguish rights as matters of substance, this is treated as the equivalent of a substantive rule in the context of conflicts of law.
Matters of interpretation arise as to the boundary between substantive and procedural rules. Traditionally, many common law rules, which have become substantive rules, originated as procedural devices.
Certain rules of evidence are, in effect, substantive. For example, the rule res ipsa loquitur, the matter speaks for itself, applies to the burdens of proof. However, although technically procedural, it may have a substantive effect. There is significant support for the proposition that it is substantive, in this context.
There is a distinction between evidence which seeks to interpret a document and evidence that seeks to vary or contradict it. The former is governed by the relevant law of the transaction. The latter is procedural and domestic law applies.
The requirement that a contract be evidenced in writing is technically a procedural matter under the Statutes. However, in this context, it is treated as substantive rather than procedural.
Presumptions of Law
Presumptions arise in the law of evidence. A presumption of fact is a presumed fact, that arises from proof of another fact. Most such are logical propositions which can be contradicted by evidence to the contrary. Accordingly, they do not raise significant issues.
Foreign law may provide a presumption that if such and such is proved, the onus is on the other party to displace the position. In this case, applying foreign law may change the evidential balance. It will matter whether the domestic court applies its own rules of evidence or the rules of evidence derived from foreign law.
There are rebuttable and irrebuttable presumptions of law. These include, for example, the presumption that a child under seven does not have criminal capacity. Irrebuttable presumptions are effectively substantive rules for the purpose of conflicts of law.
The more difficult position arises in relation to rebuttable presumptions of law. These include, for example, the presumption of death where a person has not been heard of for seven years, the presumption of legitimacy and the presumption of resulting trusts.
The courts have taken various approaches to such presumptions. The solution they adopt depends on the particular category of presumption involved. Some presumptions are treated as matters of substantive law.
Rights and Remedies
Common law courts distinguish between rights and remedies. Rights at common law rights are defined by the relevant applicable law. Remedies are defined and available in accordance with the laws of the forum.
Under domestic law, the quantification of damages has been regarded as procedural. However, under foreign law, it may be regarded as substantive.
The domestic court may only grant domestic remedies. Practical difficulties may arise giving effect to foreign law where there is no appropriate remedy in the home jurisdiction.
Matters of the burden of proof and presumptions are generally governed by the applicable law and not the law of the court.
The former procedural rule that a court gives judgment in the domestic currency only was modified in the 1970s.
Domestic Remedies Only
The remedies available are determined by domestic law. The procedure in the trial and the nature of remedies available turn on domestic law. Domestic law governs the execution of judgments within the state.
The domestic court may only grant domestic remedies. Practical difficulties may arise giving effect to foreign law where there is no appropriate remedy in the home jurisdiction.
Contracts may be specifically performed under domestic law, even though the applicable foreign law would not permit such an order. Conversely, an Irish domestic court may not grant the order where it’s not available under domestic law, even if the relevant foreign law would allow it.
Where there are self-help remedies or rights, for example, the right to reject goods, the law of the place of the transaction applies.
Damages
Damages are the principal remedy under the common law system. Some aspects of damages are procedural. The principle that damages apply by way of a once for a lump sum is determined by the domestic court.
Questions as to the measure of damages are largely substantive. Rules of remoteness are matters of substance rather than procedure. The distinction between the measure of damages and remoteness of damage is blurred in the law of torts / civil wrongs.
The quantification of damages has been regarded as procedural, under domestic law. However, under foreign law, it may be regarded as substantive.
The former procedural rule that a court gives judgment in the domestic currency only was modified in the 1970s.
Mandatory Rules
Statutes may provide mandatory rules that apply irrespective of which laws contract governed. Rules protecting consumers and employment rules may, as a matter of application of the statute, apply, regardless of private international law.
The European Union Regulation makes specific provisions for such protective laws. It may be that the domestic statute is mandatory and applies notwithstanding the foreign law.
Limitation periods have traditionally been prescribed as procedural matters. Under the Rome Regulation, however, they are treated as substantive rules.
Foreign Law as Evidence
The manner in which foreign law is received in the domestic court is procedural. The evidence of foreign law must be proved as a matter of evidence. Expert evidence is required.
Domestic rules on the receipt of evidence may not necessarily apply to the reception of foreign law. For example, documents obtained under foreign law by way of discovery or disposition that would not be allowed under domestic law may be allowed in relation to foreign law.
The foreign law may provide a presumption that if such and such is proved, the onus is on the other party to displace the position. In this case, Â applying the foreign law may change the evidential balance. It will matter whether the domestic court applies its own rules of evidence or the rules of evidence derived from the foreign law.