REFERRING QUESTIONS OF FOREIGN LAW TO THE COURT OF THE GOVERNING LAW

• Author: TEO Guan Siew BCL (Oxford), LLB (National University of Singapore). WONG Huiwen Denise LLM (NYU), MA, BA (University of Cambridge).
• Date: 01 December 2011
• Published date: 01 December 2011

No Longer “Lost in Translation”

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.

I. Introduction

1 On 21 August 2010, the Supreme Courts of Singapore and New South Wales signed a Memorandum of Understanding on References of Questions of Law (“MOU”), which gave effect to an earlier oral agreement between the Chief Justices of both Courts. Article 1 of the

MOU states that if an issue in proceedings before the forum court is governed by the law of a foreign jurisdiction, the forum court will give consideration to directing the parties to take steps to have that issue determined by the court in the foreign jurisdiction.

2 The MOU is significant because it is the first time that either court has forged ties on a legal issue. Chief Justice Chan Sek Keong stated that “[t]he MOU recognises the importance of facilitating legal cooperation in a way that has never been done before”, and that he looked forward to its more widespread adoption in the future as a new means of determining complex questions of foreign law. Chief Justice Spigelman noted that the MOU could prove valuable in determining complex cross-border commercial and family disputes, and acknowledged “the growing need for closer cooperation between courts and judges”.1

II. Background and rationale

3 The press releases of both courts recognised that, even prior to the MOU, the Supreme Court of Singapore referred a question of foreign law for determination by a foreign court in Westacre Investments Inc v The State-Owned Company Yugoimport SDPR2 (“Westacre”). In that case, the appellant had obtained an arbitral award in its favour from an International Chamber of Commerce (“ICC”) tribunal against the respondent. A year later, the appellant commenced proceedings in England to enforce the arbitral award and obtained judgment from the English High Court (“the English judgment”). Over the next few years, the appellant tried but failed to enforce the English judgment. Approximately seven years after the English judgment was obtained, the appellant found a bank account in Singapore that was linked to the respondent. The appellant applied ex parte to register the judgment pursuant to the Reciprocal Enforcement of Commonwealth Judgments Act3 (“RECJA”). The respondent then applied to set the judgment aside, with the matter eventually reaching the Court of Appeal.

4 The Court of Appeal found that one of the key questions to be determined was whether the judgment was enforceable for the purposes of the RECJA.4 Under the RECJA, enforceability of a judgment in the jurisdiction in which it was obtained is a prerequisite of registration.

problems.

Hence, the issue turned on whether the English judgment was enforceable without leave of the English court. Such leave had not in fact been obtained. As such, if leave was necessary, then the registration of the judgment under the RECJA had to be set aside. On this issue, the experts of the parties were diametrically opposed. Hence, the Court of Appeal adjourned the hearing and directed the appellant to refer to an English court the issue of whether the English judgment remained enforceable by way of a garnishee or third-party debt order. The matter went before Tomlinson J in Westacre Investments Inc v Yugoimport SDPR,5 who answered the question in the affirmative. This determination was then admitted into evidence before the Singapore Court of Appeal and was taken into account by the court in deciding that the decision of the High Court judge should be overturned.

5 The novel approach taken by the Court of Appeal in Westacre6 was undoubtedly in the minds of those instrumental in the signing of the MOU. Both Singapore and New South Wales have made concrete their commitment to the MOU by making changes to their civil procedure rules. In particular, Singapore has introduced a new O 101 to the Rules of Court, which is substantially based on the equivalent New South Wales amendment to the Uniform Civil Procedure Rules 2005.

6 Prior to the MOU, the issue of proof of foreign law had received consideration in a number of cases in Singapore.7 The law in this regard is generally similar to the traditional English common law position, which states that where foreign law applies, it must be pleaded and proven as a fact to the satisfaction of the judge.8 Unlike in England, issues of foreign law can be proven in two ways:9 (a) by directly adducing raw sources of foreign law as evidence; or (b) by adducing the opinion of an expert in foreign law.

7 This statement of law has its statutory roots in various provisions of the Evidence Act.10 Section 40 states that a court may receive as evidence the law contained in a book purporting to be published under the authority of the Government of the country or in a book purporting to be a report of the rulings of the courts of that country. Section 47 complements this by allowing the court to receive the opinions of experts as evidence of foreign law, who in the legal context, are defined by the provision as persons “specially skilled” in foreign law. Sections 60 to 62 of the Evidence Act and O 40A of the Rules of Court11 provide the framework for the admissibility and proof of opinions obtained.

8 In practice, foreign law issues are primarily determined through an assessment of conflicting expert evidence. Even where authoritative texts and superior court rulings definitively pronounce on issues of law in foreign jurisdictions, such material is generally brought before the court as part of the evidence of an expert witness, as the expert‘s opinion is often required to interpret or apply those pronouncements.12

9 The supremacy placed on the role of the expert in such circumstances has been roundly criticised.13 Doubts are often raised as to the competence and impartiality of experts14 and the issue was given extensive treatment by the Court of Appeal in Pacific Recreation Pte Ltd v SY Technology Inc.15 Order 40A of the Rules of Court16 and Form 58 of the Subordinate Courts Practice Directions attempt to ameliorate the problem by setting out the duties of an expert witness and detailed directives on what an expert report should include.17

10 Even with these measures in place, it is difficult to eliminate the element of bias (whether actual or apparent) of the expert towards the party that has engaged him. Indeed, it is interesting to note the scathing comments made by the US courts on the use of foreign law experts:18

Lawyers who testify to the meaning of foreign law, whether they are practitioners or professors, are paid for their testimony and selected on the basis of the convergence of their views with the litigating position of the client, or their willingness to fall in with the views urged upon them by the client. These are the banes of expert testimony.

11 It may be that such problems of partiality can be mitigated by relying on court-appointed experts,19 who would by definition be partyneutral. However, practical experience suggests that the O 40 procedure is far less utilised than experts appointed by the parties, possibly because of the ingrained adversarial nature of court proceedings. Moreover, even where parties consent to the appointment of a court expert, they are not precluded from subsequently calling their own experts to challenge the court expert‘s opinion.20

12 By comparison, the approach envisaged by the MOU and enshrined in O 101 of the Rules of Court21 can be expected to produce a determination that is not only impartial but also authoritative. The foreign court is obviously not beholden to any of the parties to the dispute, and is purely being asked to determine a question of foreign law applied to a hypothetical factual scenario. The impartiality and competence of a foreign court for the purpose of making a determination based on its own law can quite safely be assumed, and no one will seriously dispute that the foreign court is certainly in a better position than an expert to do so. Order 101 thus gives both the court and the parties a valid option to consider, particularly where the issue of law is complex, or when there is a dearth of experts willing to provide evidence.

13 Leaving aside questions as to the ability and professionalism of the expert, the method of proving foreign law via expert testimony is almost always expensive. There are significant costs involved in hiring an expert to produce a report, depose to an affidavit and to attend a hearing or trial to be cross-examined. In this connection, the MOU recognised the difficulties and costs involved in the traditional method

of proving foreign law. In the usual case, the O 10122 regime is predicted to be more cost-efficient as parties simply take out an...