English Courts: Applying Foreign Law?

In cross-border cases, English courts may need to apply the national law of a foreign country. This raises questions about when, why, and how this is done. The answer to these questions lies in the area of private international law, or the conflict of laws. In such cases, the content of foreign law must be proved as if it were a fact. This can be done through expert witnesses, a lawyer who will give a witness statement to explain the sources of law on a specific issue. The judge will then examine the witnesses. However, if there is no satisfactory evidence of the content of foreign law, the judge will usually apply English law to the issue.

English courts can refuse foreign law that contradicts English public policy

English courts can and do apply foreign law in cross-border cases. However, they can refuse to apply foreign law in specific circumstances, such as when it contradicts English public policy. This is influenced by the UK's international obligations, including the European Convention on Human Rights, and significant breaches of human rights are considered a violation of public policy. For example, a foreign law that permits actions that constitute a "flagrant violation of rules of international law of fundamental importance" would contradict English public policy.

The threshold for refusing to apply a foreign law on these grounds is high, and it must be shown that the application of the foreign law would lead to a result "wholly alien to fundamental requirements of justice as administered by an English court." This means that the contradiction with English public policy must be significant and fundamental to justify the English court's refusal to apply the foreign law.

The content of foreign law must be proved as if it were a fact, and the burden of proof falls on the party relying on the foreign law. If the foreign law is not satisfactorily proved, English law will generally be applied instead. This is a procedural rule and is, therefore, unaffected by EU Regulations.

It is important to note that English courts will only refuse to enforce foreign judgments in exceptional circumstances. One example of this is when the court determines that the foreign judgment was obtained through fraud, either by the party in whose favour the judgment is given or by the foreign court itself.

English courts can apply foreign law in cross-border cases

In cross-border cases, it is sometimes necessary for English courts to apply the national law of a foreign country. This is known as private international law or the conflict of laws. The conflict of laws rule allows for the application of foreign law in English courts, but there are several considerations and complexities to this process.

Firstly, the court must be aware that the case has a foreign element. If none of the parties involved invoke the application of foreign law, the court may treat the case as an international case and apply English law. The onus is on the parties to prove and establish the content of foreign law, which can be done through expert witnesses, such as lawyers, who can provide statements and explain the sources of law on the specific issue.

In the case of transfers of movable property, the applicable law is that of the location of the movable item at the time of transfer. English courts can refuse to apply foreign law if it conflicts with English public policy, such as in the case of human rights violations or a "flagrant violation of rules of international law of fundamental importance".

Additionally, the doctrine of renvoi, which allows for the application of the law of the court's jurisdiction, may be considered in certain circumstances, particularly in family matters. However, this is a complex issue and the proof of foreign choice of law rules can be expensive, leading parties to choose not to argue for their application.

English courts can also recognise and enforce foreign judgments, provided they fulfil certain criteria, such as being for a specified sum of money and having jurisdiction over the parties and issues involved. Once a foreign judgment is registered in England, it has the same force and effect as an English judgment, and enforcement proceedings can be initiated. However, if a foreign judgment conflicts with existing English law or is irreconcilable with an English judgment on the same issues, the English court may refuse to recognise it on the grounds of being contrary to public policy.

English law is usually applied in family matters

English family law recognises both marriages and civil partnerships, and same-sex couples are allowed to marry or enter into civil partnerships. The Matrimonial Causes Act 1973, which primarily dealt with divorce, set out five "facts" that were necessary for a divorce or dissolution to be granted: adultery, behaviour that the petitioner could not reasonably be expected to live with, desertion for over two years, separation for two years with consent, or separation for five years. This was reformed by the Divorce, Dissolution and Separation Act 2020.

In family law, child custody issues can expand beyond the scope of divorce, as grandparents or older siblings may also file for custody to remove a child from a dangerous home situation. Courts determine child custody based on what is in the best interests of the child, ensuring their safety and well-being. Child support refers to the financial obligations of parents towards their children, and this is typically paid to the custodial parent or guardian.

Family law also includes prenuptial and postnuptial agreements, which outline the division of assets and property during a divorce or separation. Additionally, family law can overlap with immigration law when marriage or divorce involves individuals with different citizenship statuses, impacting the citizenship of their children.

In cross-border cases, English courts may need to apply foreign law, but they can refuse to apply a foreign law that contradicts English public policy or "fundamental requirements of justice". In practice, this threshold is very high, relating to breaches of human rights or violations of international law.

Foreign law must be proven in English courts

In cross-border cases, English courts may need to apply the national law of a foreign country. However, foreign law must be proven to the court's satisfaction by expert evidence or other means. In the absence of satisfactory evidence of foreign law, the court will apply English law to such a case. This is a rule relating to evidence and procedure and is, therefore, unaffected by EU Regulations.

The content of foreign law is proved as if it were a fact. This is also the case in Australian courts, where foreign law is a question of fact, albeit a highly anomalous one. There is no obligation to plead foreign law, but this can sometimes cause unfairness. Parties can plead and prove a wide variety of foreign law, and foreign law can be proven with greater flexibility than is commonly supposed.

In the case of Iranian Offshore Engineering and Construction Company v Dean Investment Holdings SA [2018] EWHC 2759 (Comm), the claimant had pleaded a viable cause of action that could be determined under English law, and the defendant did not show that it would be inappropriate to apply English law. The court held that, in most cases, it will apply English law unless the claimant pleads and proves the content of a relevant foreign law or the defendant shows that it would be inappropriate to apply English law.

In Belhaj v Straw [2014] EWCA Civ 1394, the defendants contended that where a claim was governed by foreign law, the claimant had to plead a case under foreign law. However, Baker J did not interpret this as a rule of general application. He found the Court of Appeal's approach in OPO v MLA more compelling and declined to follow Belhaj v Straw.

English law can be used in international contracts

English law is frequently chosen as the governing law in international contracts. This is due to several factors, including the judicial independence of English courts, the availability of specialist international arbitration institutions in London, and the flexibility, efficiency, and predictability of English law.

English courts are known for their impartiality and independence, guaranteeing that cases will be handled fairly and in accordance with the law. This judicial independence provides businesses and entrepreneurs with the confidence to conduct their business activities without hesitation. Additionally, London is home to many international arbitral and alternative dispute resolution institutions, such as the London Court of International Arbitration (LCIA), which offers flexible, efficient, and impartial arbitration services under any law system.

English law is also advantageous in international contracts due to its global acceptance and flexibility. It is often chosen for cross-border construction contracts, as English courts are amenable to enforcing limitation of liability clauses, waivers of consequential loss, and other provisions that may be favourable to companies. The relative speed and efficiency with which commercial disputes can be resolved through English courts or alternative dispute resolution mechanisms contribute to the popularity of English law in international contracts.

Furthermore, English law provides certainty that the obligations in an agreement will be enforced as per the expressed intentions of the parties, without the application of codified rules of law or implied terms (except in exceptional circumstances). The confidentiality of discussions with English lawyers, protected by legal privilege, is another factor that makes English law attractive in an international context.

In summary, English law can be used in international contracts due to its judicial independence, the availability of specialist arbitration institutions, the flexibility and efficiency of its legal system, and the certainty it provides in enforcing the intentions of contracting parties. These factors contribute to London's reputation as a leading international dispute resolution centre.

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