Report No. 69
Chapter 18*
Foreign Law
I. Introductory
* The paras have not been numbered hereinafter in this Chapter, in the Report as published by the Law Commission.
We shall now deal in detail with one of the matters mentioned in section 45, namely foreign law. This matter was reserved for further discussion when we considered section 45, in view of its importance1. Section 45, it may be recalled, allows evidence of opinion to be given by experts, on the subjects enumerated in the section, which include foreign law. It is obvious that local courts cannot command extensive knowledge of foreign law, and that explains the necessity of taking evidence. Many other countries have similar rules. In A. G. v. A. R. Arunachalam Chettiar, 1957 AC (PC), the expert opinion of Shri K. Rajah lyer and Shri Bhashyam was produced in the District Court in Colombo2.
Other provisions as to foreign law.-It may be pointed out that section 45 is not the only provision relevant to foreign law3. Under section 38, where the court has to form an opinion as to the law of any country, any statement of such law contained in a book printed under the authority of the Government of such country and purporting to contain any such law, is relevant. Secondly, under the same section, any report of the ruling of the courts of such country, contained in a book purporting to be a report of such rulings, is relevant. In respect of both these kinds of evidence, there is a presumption as to genuineness of the report which has to be drawn under section 84, if the conditions laid down in that section are satisfied.
Thirdly, amongst the facts of which the court must take judicial notice under section 57, certain items are mentioned, and these include certain species of foreign legislation. Fourthly, foreign law may be ascertained by a special statutory procedure, contained in two British statutes of 1859 and 1861, to which we shall refer later. Incidentially, it may be mentioned that in a very early case4 the Court of Chancery of England requested the Supreme Court of Calcutta for opinion on a question of Hindu law under one of these statutes. Fifthly, other special Acts sometimes contain provisions relevant to the ascertainment of foreign law.
With reference to section 38 of the Evidence Act, it may be mentioned that, while law reports, in order to be relevant under that section, need not be published under the authority of Government, other books relevant under that section, that is, statements of law, must be published under the authority of Government. For this reason, a statement of law, not contained in a law report and not published under the authority of Government, but contained in an unauthorised translation of the Code Napoleon,-a statement as to what the French law was,-was rejected by the Calcutta High Court5.
Agreement by parties to leave the question to the Judge.-Almost all these provisions, while resting on the theoretical postulate that foreign law is a question of fact, seek to introduce a qualification thereto for practical reasons. It may also be mentioned that while the English theory is that the relevant foreign law must be proved, like other matters of which no knowledge is imputed to the Judge "by appropriate evidence, i.e., by properly qualified witnesses,"6 there is an exception, where the parties agree to leave the investigation of the foreign law to the Judge and to dispense with the aid of witnesses7.
Foreign law in Appellate Court.-In connection with foreign law, there is an interesting aspect relating to the powers of appellate courts. Though the general rule is, that appellate courts are slow to interfere with trial courts on questions of fact, the rule applies with particular force only as regards the assessment of the relative veracity (of witnesses) and the judgment of the weight of evidence. This general rule is not applied with so much severity in relation to foreign law. In regard to foreign law, the inference of fact depends on written material and an appellate court, not being at any particular disadvantage in comparison with the trial court, is free to review the decision of the trial court, according to the view taken by Simon, P. in an English case8.
1. Chapter 17, supra.
2. See Bhashyam & Adiga on Negotiable Instruments, under section 137.
3. See sections 38, 57, 84 and British Statutes cited, infra.
4. Robbin v. Princess Victoria, 1 Jurist Old Series 179, referred to by Woodroffe under section 38.
5. Christian v. Dellani, 1899 ILR 26 Cal 931.
6. Nelson v. Bridport, (1845) 8 Bear 547: (1843-60) All Eng Reports Reprint 1932.
7. Fouad Jabboz v. Custodian etc., (1954) 1 All Eng Reports 145 (152, 153) (reviews cases).
8. Report of the International Law Commission, 1948, pp. 61-62; Cheshire Private International Law, (1970), p. 190, f.n. 2.
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