Parkasho v. Singh

Foreign law is treated as fact, and that classification has consequences that a student can be examined on directly. This case supplies the refinement that stops the classification from being taken too literally.

This course cites the case for its characterisation of foreign law and does not set out its facts.

Foreign law is a question of fact of a peculiar kind, so that an appellate court will reverse a finding on it more readily than an ordinary finding of fact.

Step one — start from the general rule. Courts do not take judicial notice of foreign law. It must be pleaded and proved by the party relying on it, and the judge may not decide from his own knowledge — even if he previously practised the law of that country, his knowledge is irrelevant.

Step two — note how it is proved. Written foreign law by authenticated copies of the instruments; unwritten foreign law by expert oral testimony from a witness with practical experience of the system.

Step three — note the consequences of treating it as fact. A holding on foreign law in one case is not evidence in another case raising the same problem, and appellate holdings on foreign law do not have the force of precedent.

Step four — then the refinement. Foreign law is not an ordinary fact. It is a body of rules, and an appellate court is as well placed as the trial judge to read the material and weigh the expert evidence. Hence the readier reversal.

It opens: How is foreign law proved, and what is its status? — and the phrase about a question of fact of a peculiar kind is the one to carry.

Connect it to the doctrinal foundation in Module 1. The only law the judge applies is the law of the forum; the only rights he enforces are those created by the forum's law. Foreign law enters the case as a fact to be taken into account, and the judge creates and enforces a right as nearly as possible similar to the one the foreign court would have created. Three practical rules grow from that seed — foreign law is pleaded and proved as fact; the forum may exclude a foreign rule; and a foreign judgment is enforced through a domestic judgment and not directly.

Then give the exclusion cases as the natural sequel: foreign revenue laws, on Government of India v. Taylor; foreign penal laws, on Huntington v. Attrill, with Banco de Vizcaya v. Don Alfonso as an instance where the law was held penal; and laws offending fundamental policy, on the narrow test that the principle offended must be so sacrosanct as to require maintenance at all costs. And Dynamit Actien Gesellschaft v. Rio Tinto Zinc for the frame: it is not the foreign law but the forum's own law to which effect is given.

It does not decide what happens when foreign law is not proved; the course does not state a presumption on that.