Australia: Foreign Law in Australian International Litigation: Developing the Common Law

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Keyes, Mary
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Nishitani, Y

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The Australian courts are often required to consider the application of foreign law, especially in international civil litigation. The application of foreign law generally arises if one party relies on the foreign law, in which case that party bears the onus of proving the content and general interpretation of the foreign law. Most of the cases involve interlocutory applications. Foreign law is regarded as a question of fact, although one of a hybrid kind. Because of its characterisation as a question of fact, foreign law must be proven. At common law, this was usually done by expert evidence; legislation now facilitates the proof of documents which establish the foreign law. Often, both parties tender expert evidence as to the relevant foreign law. Sometimes, the evidence of experts conflicts, and sometimes it does not adequately establish the content of the foreign law. In the absence of proof, the court may apply a presumption that foreign law is the same as forum law, which justifies applying forum law to the issue, but Australian courts are becoming more reluctant simply to apply this presumption. There have been some recent and progressive innovations which facilitate the proof of foreign law, including the possibility of appointing a referee to determine the applicable foreign law, and the use of direct court-to-court communication in a small number of areas, including the Hague Judges Network. The Australian law requires further development, which seems more likely to occur if there were greater international cooperation in this area.

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Treatment of Foreign Law - Dynamics towards Convergence?

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