Extrajudicial Dispute Resolution CMLP-568

Extrajudicial Dispute Resolution CMLP-568

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 Childs best interest Protection of vulnerable parties Judges dont know/cant be assumed to know foreign law Why care about foreign law is proved? Globalisation = more intl disputes Civil justice crisis, increased importance of proportionality 1 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, Halsburys 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 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 wont do A written report wont suffice; exam/x-exam are necessary 3 Problems of proportionality An eye-opening case: Bodum USA v. La Cafetire 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 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 Wheres the incoherence? Interest in getting it right on foreign law much stronger here 5 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 2809s 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 reportno exam/crossexam 6 A word on interprovincial disputes Whos 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 judgments already a

reality re: enforcement Foreign initiatives European Convention of 1968 Bilateral agreements entered into by NSW Supreme Court 7 of

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