Pleading and Proof of Foreign Law
Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
Pages | 249-260 |
CHAPTER
12
PLEADING
AND
PROOF
OF
FOREIGN
LAW
A.
INTRODUCTION
An
important
issue
in
cases
involving
choice
of
law
is
how
the
court
becomes
aware
of
the
content
of
foreign
law.
If,
for
example,
a
contract
dispute
before
the
Ontario
court
is
governed
by
the
law
of
California,
how
does
the
court
come
to
know
California
’
s
law?
The
domestic
court
is
taken
to
know
its
own
law
but
there
is
no
basis
for
assuming
the
same
degree
of
familiarity
with
foreign
law.
B.
THE
VOLUNTARY
NATURE
OF
CHOICE
OF
LAW
Choice
of
law
is
voluntary
in
the
sense
that
it
is
an
issue
raised
by
the
parties
rather
than
by
the
court.
It
is
up
to
one
or
both
parties
to
a
dis
pute
to
allege
that
it
should
be
resolved
by
foreign
rather
than
domestic
law.
If
neither
party
makes
such
an
allegation,
the
court
resolves
the
dispute
using
the
law
of
the
forum,
no
matter
how
strong
the
factual
connections
to
another
legal
system.
1
To
take
a
striking
example,
a
con
tract
may
expressly
provide
that
it
is
to
be
interpreted
using
the
law
of
Germany
but
if
neither
party
alleges
that
the
dispute
is
to
be
resolved
using
German
law
then
the
clause
will
be
ignored
and
forum
law
will
1
See
Pettkus
v
Becker,
[1980]
2
SCR
834
at
853-54,
Dickson
J
[Pettkus].
249
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