Report No. 69

II. Varieties of Processes

Varieties of process of ascertainment.-We shall now deal in some detail with the processes for ascertaining foreign law. The content of the relevant foreign law must be ascertained in each case, but the process of ascertainment is not uniform. In some countries, the courts alone assume this task ex-officio: in others, the courts and the parties co-operate in this endeavour; in common law countries, the burden of proving foreign law falls exclusively upon the parties.

Power of Judge in continental countries.-It would appear that in certain continental countries and certain South American countries, a judge has power to commence investigation unassisted by the parties4. In Germany, for example, it appears that foreign law requires proof only to the extent to which it is unknown to the judge, and the Judge can use the own sources of information1.

1. Cheshire Private International Law; (1970), pp. 154, footnote 1.

18.8. The position is the same in substance, in Sweden. The Swedish Code on Judicial Procedure (Ratteggngabalk) Article 352, provides1 as follows:

"Proof of circumstances that are generally known is not required. Nor is proof required as to legal rules. If foreign law is to be applied and if its contents are not known to the court. The court may direct a party to present proof thereof."

Somewhat similar provisions are to be found in a few other Scandinavian countries2.

1. Article 35:2, Swedish Code of Judicial Procedure.

2. See Code of Judicial Procedure (Finland) 17:3 (to the same effect): Cf Code of Judicial Procedure (Norway), section 191 (the court may request that the parties submit detailed proof of foreign law).

III. Qualifications of Experts

Whether Practical experience necessary.-After this introductory and brief comparative discussion, we address ourselves to the specific points requiring consideration. We first take up the question of the qualifications required of an expert in foreign law. Section 45 does not lay down that the expert must be a person who has taken a formal degree or undergone an academic course of study in foreign law. Now does it require that he must be a practising lawyer.

In England, some controversy arose, in the past, in regard to persons who can be regarded as experts in foreign law. In Bristow v. Sequeville, (1850) 5 Exch 275, for example, a jurisconsult adviser to the Prussian consulate in London, who had studied law in Leipzig and knew that the Code Napoleon was in force in Saxony. was not allowed to give evidence concerning the Code Napoleon. Certain observations in the judgment suggest that it is essential to call a practitioner in every case. But other English authorities have taken a wider view.

Persons who have been held sufficiently qualified to give evidence as to foreign law include-(a) a former (as opposed to present) practitioner in the jurisdictions is question1, (b) some one who was qualified to practise in that jurisdiction although he had never done so2, (c) a Governor-General3, (d) an embassay official4 and (e) the Reader in Roman Dutch law to the Council of Legal Education.-5-6

So far as civil proceedings are concerned, section 4(1) of the Civil Evidence Act7, now finally disposes of the proposition in issue in Bristow v. Sequeville, Act, 1972 (English) by declaring that a person suitably qualified on account of know-ledge or experience is competent to give evidence of foreign law irrespective of whether he has acted or is qualified to act as a legal practitioner in the country in question. In India, in view of the wide and unqualified language used in section 45 the controversy is not likely to arise.

1. Duke of Wellington (in re:), 1947 Ch 506 (514-515).

2. Barford v. Barford and McLeod, 1918 Probate 140.

3. Cooper-Kind v. Cooper Kind, 1900 Probate 65.

4. Goods of Dist Aly Khan (in re:), (1889) 6 PD 6.

5. Brailey v. Rhodesia Consolidated Ltd., (1910) 2 Ch 95.

6. In collecting these cases, assistance has been taken from Cross on Evidence.

7. Section 4(1), Civil Evidence Act, 1972 (English).

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