chap3section4

Chapter Three
Section4 & 5 Proof of Foreign Law & Evasion of Law
Pre question
After all the processes in the application of conflict rules including classification and identification, renvoi, and the test of public policy etc., a certain rule of a foreign country’s internal law has been ascertained as the proper law to a foreign-related civil legal relationship. Is this the end of the process ? Will the court now apply directly that foreihe case here, we think the New York courts would apply ( and therefore we should ) the substantive “law” of the country which is most closely connected – in this case, American “law”. But plaintiff has offered no data showing that Saudi Arabia is thus “uncivilized’. We loath to and will not believe it, absent such showing…. Affirmed. • Qs: • 1. What is "take judicial notice"? • 2. What if "foreign law" to be ascertained as a question of fact? and a question of law?
• 司法认知作为一项证据规则，在世界各国被广泛运用。司法认知对于 免除当事人举证负担、节约诉讼时间和成本、提高诉讼效率等有重要 意义。司法认知（judicial notice），亦被译为审判上的知悉，它是指 法官在审判过程中对法律或者事实的认知或者知悉。即凡是某一件事 属于法律上规定为司法认知或者审判上知悉的，法院将断定其存在， 而无需当事人举证予以证明。司法认知是一切事实必须用证据加以证 明的总原则的例外规则。
II. Proof of foreign law in England (and common law countries)
In English law there is an important concept of judicial notice(司法认知), referring to “facts which a judge can be called upon to receive and to act upon either from his general knowledge of them, or from enquiries to be made by himself for his own information from sources to which it is proper for him to refer.”
Proof of Foreign Law
No. The contents of the foreign law have yet to be proved.
Key question
• Is “foreign law” a question of law or a question of fact?
Questions:
1 2 3 4 Who to decide? Who to prove? How to prove? How to decide?
1. Who to decide?
Where it is necessary to ascertain the law of any other country which is applicable to the facts of the case, any question as to the effect of the evidence given with respect to that law shall, instead of being submitted to the jury, be decided by the judge alone. 2. Who to prove? In an action before an English court, a party who relies on the rules of a foreign system of law must plead and prove them. 3 How to prove? The submission to the court of foreign statute or law , books of authority or decisions of courts is not sufficient. Where it is necessary to prove foreign law it should be done by calling properly qualified/ competent witnesses, or by having recourse to the machinery provided for by any relevant statute。 Usually a competent witness is one who has had experience as judge or advocate in a court administering the relevant foreign law and therefore possesses special knowledge of that law; but the court could also accept the evidence of a person who has held some office or position in which he has become familiar with the foreign law ( e.g. professors in a foreign law in relation to that foreign country’s law, former officials in foreign countries in relation to administrative laws of relevant foreign countries, bankers who have many years banking practices in relevant foreign countries for the purpose of proving foreign banking law).
An English court will take judicial notice of English common law and of the contents of English statutes without proof of their due passage through Parliament, but will not take judicial notice of foreign law. (But an English court will take judicial notice of EU law and public international law.) Foreign law is a question of fact. Therefore it is to be determined as any other fact is determined in an English court, namely on the evidence adduced in each case. The fact that the question relating to foreign law has been decided previously in English courts is not conclusive but is admissible as prima facie evidence of that law.
Walton v. Arabian American Oil Co. U.S. Court of Appeals, Second Circuit [1956]
The plaintiff is a citizen and resident of Arkansas, who, while temporarily in Saudi Arabia, was seriously injured when an automobile he was driving collided with a truck owned by defendant, driven by one of defendant’s employees. Defendant is a corporation incorporated in Delaware, licensed to do business in New York, and engaged in extensive business activities in Saudi Arabia. Plaintiff’s complaint did not allege pertinent Saudi Arabian “law”, nor at the trial did he prove or offer to prove it. There was evidence from which it might have been inferred, reasonably, that, under well-established New York decisions, defendant was negligent and therefore liable to plaintiff. The trial judge, saying he would not take judicial notice of Saudi Arabian “law”, directed a verdict in favor of the defendant and gave judgment against the plaintiff. The plaintiff appealed. The Court of Appeals, Second Circuit heard the appeal and affirmed the trial court’s decision for the following reasons: