Pleading and Proof of Foreign Law

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 235-245

235

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 t o allege t hat it shou ld be res olved by for eign rat her tha n domest ic

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 ta ke a st riki ng exa mple, 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

1SeePettkus v. Becker, [1980] 2 S.C.R. 834 at 853–54, Dickson J. [Pettkus].