United Kingdom: The Traditional Approach to Foreign Law in Civil Litigation in the Legal Systems of the United Kingdom

Abstract

The legal systems in the United Kingdom adopt an adversarial approach to judicial proceedings and consider the application and proof of foreign law as depending upon the rules of civil procedure and the law of evidence. In principle, it is for the parties to disclose the international character of a particular dispute that leads to the application of conflict-of-law rules, and in turn, to plead, and, if disputed, prove, the foreign law that may be applicable following such conflict-of-laws rules. This chapter examines the application of foreign law in the courts of the United Kingdom from a theoretical and a practical perspective. It argues that the positioning of foreign law is crucial to the adjudication of a dispute in international civil and commercial litigation and as such a core aspect of Private International Law (Conflict of Laws) methodology. It submits de lege ferenda that in certain circumstances the ability to take judicial notice of foreign law could provide the courts in the United Kingdom with ‘another tool in the case management toolbox’ if done with regard to the functional differences between the pleading and proof of foreign law by the parties, and applying foreign law ex officio. Such a possibility – even if used only in exceptional cases- could further enable the courts to provide a more efficient, cost-effective and fair case management.