Proving Foreign Law
Proof of foreign law
The courts cannot take judicial notice of foreign law. Foreign law must generally be treated and proved as a matter of fact, when it applies. Ultimately foreign law must be applied and interpreted notwithstanding that it is a matter of fact.
Foreign law is proved by expert evidence. The general principles applicable to expert testimony apply. Accordingly, evidence may be given only by a person with expertise in that foreign law. See generally the principles applicable to expert witnesses.
The courts take into account that although foreign law is a matter of fact in the domestic court, its interpretation is a legal process. An appeal court may more readily overturn the High Court in its interpretation. It is not treated in the same way as the determination of primary objective facts and observed facts.
Generally, a court may not interpret the foreign law. However, the court may be more willing to interpret a foreign document.
Expert Evidence
The opinion of experts on the foreign law concerned is the only admissible evidence. In the usual way, the expert must be shown to be competent in the field concerned. The expert may be a current or former practising lawyer in the jurisdiction concerned.
The courts are reluctant to accept evidence given by persons who have merely studied foreign law. Practitioners are preferred. A judge or legal practitioner from the state or jurisdiction concerned may appear to give evidence.
Courts have sometimes accepted evidence from a person practising in another foreign country whose laws are the same as the foreign country concerned. The court may accept the evidence of non-lawyers where their practical experience gives them the required authority.
In some cases, non-lawyers evidence will be accepted. Diplomatic representatives, ambassadors, bank officials, merchants, etc., may give evidence. However, they are not preferred, and the best evidence is that of legal experts.
However it will not lightly permit non-lawyers to give evidence as to foreign law. The principle of best evidence means that such evidence should only be received where is not practicable to obtain a legal expert practitioner to give evidence.
Method of Proof
Foreign law must be proved as if it is a matter of fact. It must be proved as any other fact in the case by way of evidence.
Each side may introduce evidence as to the law concerned. However, witnesses in each case are experts and owe duties to the court.
The witness may exhibit and refer to foreign statutes. The evidence must come from the witness and not from the foreign textbook to which reference is made.
In principle, parties can provide differing and conflicting evidence of foreign law. The modern approach is to seek, where possible, expert evidence from a single individual expert.
The witness expert witness may refer to an incorporate in a report, Â extracts from statutes, decisions and legal texts in the jurisdiction concerned. They need not necessarily do so.
The evidence is not to set out the content of the foreign but to state its effect on the law resulting from it. Generally, a domestic court may not interpret a foreign statute. In the case of a document, the court may be more willing to interpret it in accordance with the foreign law.
Resolution
Where uncontradicted evidence is given by an expert in a foreign law the court will generally follow it. The court cannot reject the evidence of an expert because it would come to a different conclusion. But if the evidence of the expert is obviously incorrect, the court should not accept it.
When the experts disagree, the court must decide the matter for itself. The ordinary rules apply that apply to the resolution of questions of fact. The court is entitled to do more than balance the authority of the experts. It may form its own opinion on the matter.
Acceptance & Admission
Foreign law may be admitted without proof. Courts may be more willing to admit foreign statutes than other laws.
A party may admit foreign law. He may, for example, admit that his conduct in another jurisdiction is illegal, However, if the remark is simply casual and in passing, this will be unusually insufficient to constitute an admission.
Where uncontradicted evidence of law is offered the courts will generally accept it. However, the witnesses’ qualifications and credibility must be unimpeached. If the evidence is false and unreliable, the court may reject it. Where there is a conflict of evidence, the court must determine the position as best as it can be using the material at its disposal.
Pragmatic Application of Domestic Law
There is said to be a presumption that foreign law is presumed to be the same as Irish law in the absence of proof to the contrary. Where a foreign law is not proved, the court may apply Irish law. This may be done for pragmatic reasons. This approach has been criticised.
In many cases, proving foreign law may be too expensive, troublesome, or complex. In such cases, it may be waived, and the courts may apply Irish law. They may be said to presume that foreign law is the same as Irish law and, to the contrary, is shown.