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 instead (=safety valve rule).
 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