Government of India v. Taylor

Proving a foreign law is not the end of the inquiry. Even a proved foreign law may be excluded by the forum, and the syllabus treats the three classes of excluded law — revenue, penal, and laws offending fundamental policy — as a single head. Government of India v. Taylor is the first case for the first class, and its one-line justification is the best statement of why any of the three exclusions exist.

The course states the case for the proposition that foreign revenue laws are not enforced. Treat it that way: name the rule, quote the line, and move to the classification question, which is where the marks are.

Foreign revenue laws are not enforced:

"Tax gathering is not a matter of contract but of authority and administration as between the State and those within its jurisdiction"

Step one: begin from the frame. Lord Parker's statement in Dynamit Actien Gesellschaft v. Rio Tinto Zinc supplies it: "it is not the foreign law but our own law to which effect is given ... As has often been said, private international law is really a branch of municipal law and obviously there can be no branch of law in which the general policy of such law can be properly ignored." Because the operative law is always the forum's own, the forum retains a veto.

Step two: ask what a revenue claim actually is. Not a private obligation between two parties, which is the kind of thing conflict of laws exists to handle, but an exercise of authority and administration by a State over those within its jurisdiction. To enforce it abroad would be to lend the forum's courts to another State's exercise of sovereign power. That is the whole of the reasoning, and it is why the same logic extends to penal laws.

Step three: keep the classification for the forum. In Huntington v. Attrill the forum decides for itself whether the foreign law is penal — it is not bound by the foreign system's own description; Banco de Vizcaya v. Don Alfonso is the case where the foreign law was held penal. The same control over characterisation that decides cases in Module 1 reappears here.

Step four: keep the third class narrow. Laws offending fundamental policy are excluded, the court refusing to apply a law which "outrages its sense of justice and decency" — but the doctrine is deliberately narrower in conflicts than in domestic law. A transaction valid by the foreign lex causae "should not be invalidated on this ground unless it's enforcement would offend some moral, social or economic principal so sacrosanct in English eyes as to require its maintenance at all costs without exception". (The passage carries the spellings the course records.)

Step five — the distinction students miss. Exclusion is not non-recognition. Revenue and penal laws are still recognised for other purposes; so a contract designed to defraud a foreign revenue will not be enforced. The forum declines to collect another State's tax, but it does not pretend the tax does not exist.

It opens: What foreign laws will the forum refuse to apply? and any question on public policy in private international law. Structure: the frame from Dynamit Actien Gesellschaft; revenue, on Government of India v. Taylor; penal, on Huntington v. Attrill with Banco de Vizcaya as the instance; fundamental policy, with the narrowness proviso; then the recognition–enforcement distinction as the closing refinement.

Link it to the foreign-judgments scheme. A judgment given in penal or revenue proceedings will not be enforced, which is the same doctrine reappearing as a defence; and public policy pleas are "extremely rare", the standing example being Re Macartney, where a Maltese decree of perpetual maintenance for an illegitimate daughter was refused enforcement.

Use it also to make a theoretical point. The exclusions are the clearest proof of the Vishwanathan proposition that this is a branch of the civil law of the State: a body of rules that genuinely applied foreign law of its own force could not pick and choose among foreign laws.

It does not decide: whether a particular foreign law is revenue or penal in character — that is for the forum to determine case by case; nor does it prevent the foreign revenue law being taken into account as a fact, for instance where illegality under it is relevant to a contract.