Proof of Foreign Law by Reference to the Foreign Court

Abstract

The traditional means by which a question of foreign law is answered is by use of expert evidence. The inadequacies of this mechanism have been frequently identified: experts are expensive, difficult to procure, of various levels of expertise and are frequently partisan. The problems of determine a question of foreign law using expert evidence are particularly acute where a trial judge is required to determine a novel question in the foreign jurisprudence and two experts, of equal standing and persuasiveness, reach entirely different conclusions. This paper sets out an innovative mechanism that has been adopted in New South Wales, whereby a question of foreign law may be referred to a foreign court for determination. In addition to adopting rules of court allowing such references to be made, the Supreme Court of New South Wales has entered into a memorandum of understanding with the Supreme Court of Singapore whereby each agrees to give consideration to referring a matter of foreign law to the other jurisdiction for determination. Similarly, the Chief Justice of NSW has entered into a memorandum of understanding with the Chief Judge of New York, whereby the latter has undertaken to appoint a standing panel of five volunteer judges from New York appellate courts whom, acting in a voluntary capacity, will answer a question of law referred to them by the Australian court. This paper discusses the history of referrals between foreign courts, the constitutional validity and practical operation of such a mechanism, and the circumstances in which such a referral would be suitable.