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

CHAP TER 12

PLEADING AND PROOF

OF FOREIGN LAW

A. I NTRODUC TION

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 i s 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 l aw, but there is no basis for assuming the

same degree of familiarity with foreign law.

B. THE VOLUNTARY NATUR E OF CHOICE

OF L AW

Choice of law is voluntary, in the sense that it is an issue raised by the

parties rather t han 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 expres sly provide that it is to be interpreted using t he law of

Germany, but if neither party alleges that the dispute is to be res olved

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