Report No. 193
Chapter III
Recent developments in Private International Law in Common law countries: From Procedural to Substantive
According to Cheshire and North's Private Institutional Law (13th Ed. 1999)(pp 67-68), in any action involving the application of a foreign law, the characterization of rules of law as substantive or procedural is crucial. They say:
"One of the eternal truths of every system of private international law is that the distinction must be made between the substance and procedure, between the right and remedy. The substantive rights of the parties to an action may be governed by a foreign law, but all matters appertaining to procedure are governed exclusively by the law of the forum'. (Huber v. Steiner, (1835) Bing NC 202; Chaplin v. Boys, 1971. A.C. 356.
The reason for the distinction between substantive and procedural law is that the forum Court cannot be expected to apply every procedural rule of the foreign state whose law it wishes to apply. The forum's procedural rules exist for the convenience of the Court, and forum judges understand them. They aid the forum court to "administer (its) machinery as distinguished from its product". (Poyser v. Minors, (1881) 7 Q.B.D. 329 (at p 333)) per Lusl L.J.
Chestire and North also say (ibid p 68): "The field of procedure constitutes perhaps the most technical part of any legal system, and it comprises many rules that would be unintelligible to a foreign judge and certainly unworkable by a machinery designed on different lines. A party to litigation in England must take the law of procedure as he finds it. He cannot by virtue of some rule in his own country enjoy greater advantages than other parties here; neither must he be deprived of any advantages that English law may confer upon a litigant in the particular forum of action".
Chestire and North (ibid pp 70-72) further discuss the views of jurists as to the manner in which the distinction between procedure and substance has to be made and point out that the matter must be examined on a case by case basis and in relation to particular matters of procedure.
So far as routine matters like service of process, form that the action must take and whether any special procedure is permissible, the title of the action (e.g. by what person and against what persons it should be brought); the competency of witnesses and question as to the admissibility of evidence, the respective functions of Judge and Jury; the right of appeal, and (according to some writers) the burden of proof - these are clearly procedural matters. The authors then discuss various other specific matters to find out if they belong to the sphere of procedural or substantive law under different headings (A) to (H). Under heading (A), they deal with the law of limitation with which we are presently concerned.
Back
