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Cross-border cases and proof

of law: where the foreign law


is and how to find it ?
Tuulikki Mikkola
Professor of Private International and Comparative Law
Starting point
In the daytoday work of the lawyer, it is also important that we note
the new, global character of legal information. When working with
legal information be it theoretical or practical we increasingly find
ourselves needing the skills to cross the boundaries between legal
cultures.
Problems
acquiring reliable comparative knowledge and
comparative data
the interplay between private international law and
comparative law, has increased the use of digital
environments.
But even though one is sometimes able to find piles of
information of foreign law, the problem remains, how one
should approach the information and how one is able to
make sure that the information is relevant where is the
foreign law ?
Link
Respect
Foreign law must be respected to the highest
degree possible.
Only with a wide-ranging perspective can private
international law function as it should.
Must be built on using global legal information in
a reliable way.
Compass
In the narrowest sense it is a field of law composed of
rules designating the legal system governing the substance
of a private law dispute having international character. In a
wider sense it includes also the rules on the jurisdiction of
courts and recognition and enforcement of foreign
judgments. The court will apply the law of the forum
(lex fori) to all procedural matters.
PIL is comparable with a railway inquiry room. By
approaching the inquiry room you can only ascertain the
platform from which a particular train leaves. It is the train
that reaches you to your destination not the enquiry room.
Differences
no successful unification of conflict rules has ever taken
place on the universal level ..
legislation on PIL has also been enacted or is under
preparation within the European Union
Key
In practice even the seemingly unified and identical rules of
private international law often function in different ways
depending on the varying national approaches to general
problems of private international law, such as foreign law in
a court process.
procedural law has a key function in international civil
proceedings. It determines how foreign law is ascertained in
each system and it also sets the standard for evaluating the
sufficiency of the proof provided. It also provides the
solution in circumstances where the proof of the applicable
foreign law is not sufficient.
Guidelines
The Code of Judicial Procedure chapter 17, section 3:
(1) A fact that is notorious or known to the court ex officio
need not be proven. In addition, no evidence need be
presented on the contents of the law. If the law of a foreign
state is to apply and the court does not know the contents of
this law, the court shall exhort the party to present evidence
on the same.
(2) If, in a given case, it is specifically provided that the court
is to obtain information on the contents of the foreign law
applicable in the case, the specific provisions apply.
(3) If, in a given case, foreign law should apply, but no
information is available on its contents, Finnish law applies
Facts
foreign law is generally treated as a question of fact; parties
are allowed to use whatever means they choose to
ascertain the content of foreign law.
If foreign law is not proven, the court should apply lex fori,
its own national legal rules concerning the issue a safety
valve rule.
The court is also permitted to complete the information of
foreign law if it thinks that information received from parties
is not sufficient. However, it is not obliged to do so.
If both parties present conflicting information, the court may
and has to decide which is correct and what is the true
content of a foreign legal norm.
Loyalty
No provisions on burden of proof, and courts have wide
discretion to decide whether it has been exceeded
under private international law doctrine one should be
able to apply the foreign law in a loyal way - the
same way as it is being applied in the country of
its origin.
Questions
The safety valve rule reflects the circumstances at the
time that it came into force in 1948.
The internet has meant a revolution in the area of
comparative law; nevertheless, establishing the content
of foreign law is not always easy, and the safety valve
rule still holds its place and is justifiable in our
procedural system.
Courts apply the law of the forum infrequently
the information brought to the court is of good quality /
the standard of proof too low ?
Proof
The most important function of the Supreme Court is to
establish judicial precedents in leading cases thus
ensuring uniformity in the administration of
justice by the lower courts requirements of leave
to appeal.
Apprx. 100-150 precedents are decided each year.
Do Supreme Court precedents indicate what kind of a
proof of foreign law is considered sufficient ?
Does party autonomy also has a place at this stage
where the applicable law has been chosen and its
content should be presented to the court: does it matter
if the other party approves or disapproves the evidence
provided?
KKO 1999:98 (recovery to a bankrupts estate, property law in
Spain).
The plaintiff presented two expert opinions on Spanish property
law - drafted years before the contestable conveyance. The
experts were bank officials, one from a Finnish bank and the
other from a Spanish bank. The expert opinion drafted by the
Finnish bank official had no references to Spanish law, Spanish
case law or legal literature.
The other expert had based his/her conclusions on one article
of the Civil Code but the opinion ended with a following
statement: ..comments are based on solely scholarly opinions
that are contested (not-unanimous) in our legal science.
The Court of Appeal considered that this proof was not
sufficient and applied the safety valve rule. The Supreme Court
considered the proof sufficient and applied Spanish law.
The Supreme Court made general comments in its
reasoning regarding what the type and extent of proof
that should be required. there are cases in which the
judgment cannot be made, if the precise wording of a
relevant foreign provision is not known. Sometimes it
is enough that the main principles, according to which a
certain legal question is provided within the legal
system of a relevant state, are known.
However, these arguments ignore the essential core of
comparative law; that is, to apply foreign law
authentically - individual provision must be put against
the relevant legal system.
Divided burden of proof:
the plaintiff had the primary obligation for proof,
whereas the corresponding obligation of the defendant
was secondary, according to which the defendant
should have provided information of possible exceptions
to what the other party provided.
does not guarantee that the proof is of good quality.
the court should concentrate on the quality of the
evidence provided, rather than making conclusions on
the proof on the basis of actions taken by the parties.
KKO 2006:108 (recovery to a bankrupts estate)
the law of Estonia was the applicable law.
the reasoning of the Supreme Court is conspicuous,
stating that the bankrupt's estate had delivered quite
extensive evidence to the District Court, mainly legal
norms with translations. This evidence is not disputed.
significance was given to the actions taken by the
defendant and to whether he/she has disputed or
accepted the evidence given suggests that standard
of proof of foreign law was considered discretionary in
character.
KKO 2011:97 (payment of maintenance to a spouse after
divorce)
the District Court acquired information of Swiss law and
legal literature by means of executive assistance. The
Court delivered the request for legal advice to the
international unit of the Ministry of Justice. Both parties of
the case had also acquired a statement from Swiss
attorneys.
The reasoning of the majority does not touch the
problematic question of the standard of proof.
Accordingly, it does not discuss the basic questions of
comparative law, such as the reliability of the sources of
foreign law and their relative ranking order.
Challenges
To be practically useful as well as intellectually valuable
comparative law has to compare more than just rules.
This scope makes the study of comparative law
particularly engaging as well as challenging.
Understanding specific legal rules presupposes a
conception of what law is in that particular legal
system; who in the specific legal system has the
responsibility of elaborating principles and concepts.
A legal system must be considered from the perspective
of its normative, conceptual and methodological
elements.
Conclusions
Supreme Court decisions give us guidelines what kind of
info is required when providing proof of foreign law ?
No in some decisions proof of foreign law has been of
a low quality / basic doctrines of comparative law not
applied etc.
And worries..
Finnish courts in general are not willing to take
questions of true comparisons seriously. Not much
discussion connecting foreign law and comparative
method to cross-jurisdictional problems
this has its effects on private international law when
one cannot say that we are truly respecting the foreign
law
private international law is not working as it should
justice achieved in cross-border cases is not as good
as in purely domestic cases
THANK YOU !
Tuulikki.mikkola@ulapland.fi