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Foreign Law in Domestic Courts

David Foxton QC

(2017) 29 SAcLJ 194

This article reviews the rules governing the ascertainment of foreign law in domestic proceedings. The competing approaches to ascertaining foreign law are reviewed: the traditional approach of proof by expert evidence; the alternative of referral to the foreign court on an ad hoc basis or pursuant to bilateral or multilateral conventions; the appointment of a judge from the relevant jurisdiction as a referee; or the ascertainment of foreign law on the basis of submissions. It concludes that the latter option, adopted in international arbitration, and now by the Singapore International Commercial Court, is the preferred approach, and best fits the forensic exercise in which both Bench and Bar are engaged when issues of foreign law arise.