Abstract:
A party who has not pleaded foreign law may not “rely” on foreign law. On the other hand, a party who has pleaded foreign law may rely on the presumption of similarity of foreign law to the substantive lex fori. The result is that if the plaintiff has pleaded foreign law, his claim based on foreign law will be dismissed only if the substantive lex fori is in fact unfavourable or the party-opponent proves that the foreign law in fact does not support the claim. These rules are almost trite but the exceptions to the rules are difficult to comprehend by reference to principle. This article examines the rationales of these two rules and argues that a coherent and rational classification is possible when the presumption of similarity is kept out of the pleading rule and its scope modulated in the light of developments in the doctrine of forum non conveniens.