Background

1. Background Two important preliminary points: • All modern systems provide for the (occasional) application of foreign law • For several reasons; e.g.: • Parties’ legitimate expectations • Personal autonomy • Comity/sovereignty • Child’s best interest • Protection of vulnerable parties • Judges don’t know/can’t be assumed to know foreign law Why care about foreign law is proved? • Globalisation = more int’l disputes • Civil justice crisis, increased importance of proportionality 1

2. The typical common law approach Foreign law must be pleaded Foreign law must be proved “Foreign law must be proved by the testimony of [party-appointed] expert[s]” (J. Walker, Halsbury’s Laws of Canada, 2011) Same approach traditionally adopted in Quebec A lengthy, cumbersome, one-size-fits-all approach Additional (potential) problem: partisan spin to experts’ opinions Two problems: • Problems of proportionality • Problems of coherence 2

3. Problems of proportionality Four questionable premises • Getting it right on points of foreign law is of utmost importance • The involvement of experts is always necessary • A single, court-appointed expert won’t do • A written report won’t suffice; exam/x-exam are necessary 3

4. Problems of proportionality An eye-opening case: Bodum USA v. La Cafetière Inc., 621 F.3d 624 (7th Cir. 2010) • Majority: • French law readily available in English • “Lawyers who testify to the meaning of foreign law, whether they are practitioners or professors, are paid for their testimony and selected on the basis of the convergence of their views with the litigating position of the client, or their willingness to fall in with the views urged upon them by the client.” • Secondary sources will usually suffice, and may even be preferable • Dissent: • “There is no need, however, to disparage oral testimony from experts in the foreign law. That kind of testimony has been used by responsible lawyers for years, and there will be many instances in which it is adequate by itself or it provides a helpful gloss on the literature.” 4

5. Problems of coherence Consider how judges use foreign law when they interpret local law • Current practice: • Experts are rarely involved • Judges carry out comparative law research independently • No strict requirement to give parties opportunity to comment • Where’s the incoherence? • Interest in getting it right on foreign law much stronger here 5

6. The good news Quebec judges have all the tools they need • “2809.Judicial notice may be taken of [foreign law], provided that it has been pleaded. The court may also require that proof be made of such law; this may be done, among other means, by expert testimony or by the production of a certificate drawn up by a jurisconsult.” • Judges are given complete control over the process • 2809’s potential remains untapped; change in practice is needed: • Traditional practice should become option of last resort • Judges should first look for secondary sources • Experts should only be involved if/to the extent that is necessary • Court-appointed expert should be the norm • Expert(s) should only file written report—no exam/cross-exam 6

7. A word on interprovincial disputes • Who’s best placed to advise on a difficult point of Ontario law • An Ontario judge… • There seems to be a compelling case for increased judicial cooperation • Judicial cooperation already a reality re: enforcement of judgments • Foreign initiatives • European Convention of 1968 • Bilateral agreements entered into by NSW Supreme Court 7