Lloyd's Maritime and Commercial Law Quarterly
Foreign law as fact
Marcus Teo*
In English law, “foreign law”, as applied under choice-of-law rules, is a question of fact. This “fact doctrine”, however, faces scepticism for three reasons: it remains unclear whether foreign law is truly treated as a question of fact, why it is so treated, and what the precise fact-in-issue is. This article addresses these concerns. It demonstrates that, today, foreign law is treated like any other question of fact. It then argues that foreign law should be classified as a question of fact, and should refer to foreign legal rulings, because this facilitates the accurate prediction of foreign decisions.
I. INTRODUCTION
Choice-of-law rules often require courts to apply foreign law, and thus to ascertain its content. The rule here, of ancient origin, is that foreign law’s content is a question of fact, to be treated as such by the law of evidence and civil procedure.1 This “fact doctrine”,2 however, has also long been the subject of considerable ire. Richard Fentiman, for one, has called the fact doctrine an “old shibboleth”,3 and condemned it as “anachronistic, unsatisfactory, even ‘primeval’”.4 And Adrian Briggs has written that calling “the content of the rules of foreign law … (a matter of) fact is unedifying, mainly because it is conspicuously not true”.5
At first glance, this scepticism may seem warranted. After all, despite its historical pedigree and the detailed academic attention it has received, at least three significant questions about the fact doctrine persist. First, does it truly exist? Is foreign law really
* Assistant Professor, Faculty of Law, National University of Singapore. I am grateful to Adrian Briggs, Adeline Chong, Yeo Tiong Min, Yip Man and the anonymous reviewer for their helpful comments. An earlier draft of this paper was presented at the inaugural meeting of the Singapore Private International Law Discussion Group at the Singapore Management University in March 2024. All errors remain mine.The following abbreviations are used:Briggs: A Briggs, Private International Law in English Courts, 2nd edn (Oxford, 2023);Fentiman, Foreign Law: R Fentiman, Foreign Law in English Courts (Oxford, 1998);Fentiman (2006) 59 CLP 391: R Fentiman, “Laws, Foreign Laws, and Facts” (2006) 59 CLP 391;Fentiman, ICL: R Fentiman, International Commercial Litigation, 2nd edn (Oxford, 2015);Geeroms: S Geeroms Foreign Law in Civil Litigation: A Comparative and Functional Analysis (Oxford, 2004).
1. Mostyn v Fabrigas (1774) 1 Cowp 161; 98 ER 1021.
2. Following the literature in this area, I use the term “fact doctrine” loosely to mean either a rule classifying foreign law as fact or a judicial practice of doing so.
3. Fentiman (2006) 59 CLP 391, 426.
4. Fentiman, Foreign Law, 287.
5. Briggs, 34. However, a holistic reading of Briggs’ more recent work suggests that he endorses a position close to that which I ultimately reach below; see text to fn.86.
636