Party Choice and Proof

Source abstract

Abstract Courts are reluctant to intervene in how conflicts cases are presented. But, as we have seen, the introduction of foreign law is exceptionally manda tory. And, as the present chapter shows, courts may sometimes regulate whether, how, and by whom foreign law is proved. This is not to say that a court will make directions to this effect, still less that it will seek to deter mine foreign law on its own. But a party who is duty-bound to plead for eign law and does not do so, or who offers insufficient proof, faces a powerful and persuasive sanction. The penalty for insufficiently proving foreign law is the failure of the defence or claim, either because the court will prefer the other party’s evidence, or will apply English law by default. Where foreign law is relied upon but no evidence is tendered, the effect may be still more severe. Arguably, the defective case should simply be dismissed.