Abstract:
The question of proof of foreign law in cross-border litigation is often a difficult one, not least because the court of the forum is being asked to make a ruling on an area of law which is by definition outside its expertise. This is not necessarily helped by expert opinions, which can be sharply conflicting, almost certainly costly, and which may not always lead to a just result. In a significant move to promote legal co-operation across jurisdictions, the Supreme Courts of Singapore and New South Wales recently signed a Memorandum of Understanding to provide a new means of determining questions of foreign law, viz, by the forum court referring the issue in question directly to the foreign court to make a ruling on its own law. This article examines the background and rationale of the initiative, analyses the procedures put in place to support the endeavour, and raises issues that will likely need to be resolved when the procedure is utilised in practice. It also offers some tentative suggestions on the considerations that one should bear in mind in deciding whether to apply for, or (from the court’s point of view) make an order for such a reference. From a broader perspective, the possible implications on the doctrine of forum non conveniens will also be considered.