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