Part II Preliminary Topics, 7 The Proof of Foreign Law

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Civil Procedure ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Applicable Law ◽  
Foreign Law ◽  
English Law

This chapter examines the question of proof of foreign law and particularly the onus of proving that the foreign law is different from English law. Foreign law is treated as a question of fact, but it is ‘a question of fact of a peculiar kind’. To describe foreign law as one of fact is apposite, in the sense that the applicable law must be ascertained according to the evidence of witnesses, yet there can be no doubt that what is involved is at bottom a question of law. The courts have concluded that a mistake as to foreign law is to be regarded as a mistake of fact. This chapter first explains how foreign law is proved, including the use of expert witnesses, before turning to witnesses who can prove foreign law. It also considers the role of the English courts under the Civil Procedure Rules in dealing with expert evidence.

Brexit and Private International Law

2020 ◽  
Author(s):  
Kristina Salibová
Keyword(s):  
European Union ◽  
Transition Period ◽  
Private International Law ◽  
The European Union ◽  
Applicable Law ◽  
The United Kingdom ◽  
English Law ◽  
Energy Community ◽  
The Impact

My contribution deals with the issue concerning the question arising on the applicable law in and after the transition period set in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. The aim of this contribution is to analyze how the English and European laws simultaneously influence one another. This analyzation will lead to the prognosis of the impact Brexit will have on the applicable English law before English courts and the courts of the states of the European Union. The main key question is the role of lex fori in English law. Will English law tend to return to common law rules post-Brexit, and prefer the lex fori?

9. Opinion evidence

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Expert Opinion ◽  
Criminal Procedure ◽  
Civil Procedure ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Criminal Cases ◽  
Civil Cases ◽  
The Uk

This chapter, which focuses on opinion evidence in criminal and civil cases in the UK, explains the rule on the admissibility of opinion, including expert opinion, as well as notice and disclosure in criminal cases under the Criminal Procedure Rules 2014. The criteria for the admissibility of expert evidence, the responsibilities of expert witnesses, and the approach of the courts to new areas of expertise are examined in detail. It also considers the presentation of expert evidence, including the use of court-appointed experts, in civil cases under the Civil Procedure Rules, and, finally, examines the ultimate issue rule, which has been abolished by section 33(1) of the Civil Evidence Act 1972.

The Basis of the ‘Basis Rule’: The Role of the Basis Rule in the Admissibility of Expert Opinion

2015 ◽  
Vol 43 (2) ◽  
pp. 313-337
Author(s):  
Trang Phan ◽  
David Caruso
Keyword(s):  
Expert Opinion ◽  
Common Law ◽  
Court Decision ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Specific Context ◽  
High Court ◽  
General Terms ◽  
Admissible Evidence

The ‘basis rule’ is, in general terms, a rule which restricts expert witnesses to giving opinion evidence in respect of which there is or will be proof, by other admissible evidence, of the facts and assumptions upon which the opinion is based. There has been no clear consensus as to whether the basis rule exists either at common law or under the Uniform Evidence Legislation, or whether the rule goes to admissibility or weight. This article examines the jurisprudence, with a particular focus on the recent High Court decision of Dasreef Pty Ltd v Hawchar. The authors argue that the controversy surrounding the basis rule has been the result of a misunderstanding and misconstruction of the rule. They argue that the conflict may be resolved by understanding the basis rule as simply a rearticulation, in the specific context of expert evidence, of the requirement that evidence must be relevant to be admissible. The weight of that expert evidence remains to be determined in accordance with ordinary principles.

Public Policy in the Cayman Islands: Driving a Cart and (Unruly) Horses Through the Recognition Legislation

2001 ◽  
Vol 50 (1) ◽  
pp. 133-143
Author(s):  
Mitchell C Davies
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Direct Result ◽  
Private International Law ◽  
Cayman Islands ◽  
Choice Of Law ◽  
Applicable Law ◽  
Safety Mechanism ◽  
Foreign Law ◽  
English Law

Resort to public policy in order to impugn a foreign judgment or to negate the effects of the application of foreign law has correctly been given a narrow compass by the English courts. In the sphere of common law choice of law rules in contract and tort this approach has been encouraged by the in-built forum bias of the rules themselves which reduces significantly the need for circumvention of foreign law. At common law a tort, for example, is never actionable in England unless the cause of action is recognised as a tort by English law.1 The common law choice of law rules in contract, ostensibly less parochial, are so open textured however as to leave a judge minded to apply English law rarely without legal justification for doing so. An increase in the resort by English courts to the safety mechanism of public policy is therefore anticipated by most commentators to be a direct result of placing the choice of law rules in contract and tort on a statutory footing, respectively, by the Contracts (Applicable Law) Act 1990 and the Private International Law (Miscellaneous Provisions) Act 1995.2 What was achieved openly through an application of the rules themselves may now be arrived at less ingenuously by more indiscriminate resort to the mechanism of public policy. At one extreme a danger exists that public policy may become a badge of partiality resorted to for no better reason than to protect the perceived innate superiority of the forum's rules. At another, a misplaced desire to promote international comity may lead to an exclusion of public policy where it ought properly to be invoked; a balance must be struck. The delicate question of the correct weight to be accorded to the doctrine of public policy recently fell to be determined by the Grand Court of the Cayman Islands3 in Wheeler v. Wheeler.4

The psychiatric expert in court

1984 ◽  
Vol 14 (2) ◽  
pp. 291-302 ◽  
Author(s):  
Anthony Kenny
Keyword(s):  
Expert Witnesses ◽  
Expert Evidence ◽  
Impossible Task ◽  
The Law

SynopsisThe law about expert evidence is unsatisfactory: it gives scope for the expert to usurp the role of judge, jury and parliament; it brings the professions of the experts into disrepute; and it sets juries the impossible task of sorting pseudo sciences from genuine ones. The law should be reformed by changing statutes which force expert witnesses to testify beyond their science, by taking the provision of expert evidence out of the adversarial context, and by removing from the courts the decision whether a nascent discipline is or is not a science.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 48 Switzerland: Swiss Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Graziano Thomas Kadner ◽  
Meyle Hannes
Keyword(s):  
International Law ◽  
Hague Convention ◽  
Civil Procedure ◽  
Private International Law ◽  
Applicable Law ◽  
Foreign Law ◽  
Recognition And Enforcement ◽  
The Hague ◽  
The Law ◽  
The Hague Convention

This chapter describes Swiss perspectives on the Hague Principles. Switzerland is a Contracting State to the Hague Convention of 15 June 1955 on the Law Applicable to International Sale of Goods. For contracts other than commercial sales, the applicable law is determined by the Swiss Federal Act on Private International Law (PILA). It covers jurisdiction, international civil procedure, applicable law, and the recognition and enforcement of foreign judgments. The Swiss PILA therefore constitutes an all-inclusive, comprehensive codification of private international law. For many issues, the rules contained with the PILA are already in conformity with those in the Hague Principles. Where the Hague Principles cover issues that have not yet been explicitly addressed by the PILA, such as choice of non-State rules in Article 3 of the Hague Principles, or conflicting choice of law clauses in standard forms in Article 6(1)(b) of the Hague Principles, the legislator may very well take the Hague Principles into consideration when amending the PILA. In fact, the Swiss legislator regularly takes inspiration from international and foreign law when amending the law or covering new issues.

The Galbraith Judgment and the Defence of Diminished Responsibility in Scotland

2005 ◽  
Vol 45 (4) ◽  
pp. 297-302
Author(s):  
Nicola Hodelet ◽  
Rajan Darjee
Keyword(s):  
Case Law ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Diminished Responsibility

New case law on diminished responsibility in Scotland ( Galbraith v. HM Advocate 2001) re-defined the defence and clarified the role of expert witnesses. We examined how this judgment affected the use of the defence, provision of expert evidence and the outcome of trials. We studied homicide cases in one area of Scotland in the year before and the year after the new judgment. Results indicated little change in the number of cases where the defence was used, but a difference in how psychiatrists set out their opinions.

scholarly journals Sucesión de un nacional británico residente en España: el reenvío, de nuevo, como elemento decisivo entre la libertad de testar y los derechos sucesorios de legítima, típicos del Derecho civil común español = Succession of a british national resident in Spain: renvoi, again, as a decisive element between freedom to make a will and the legitimate successory rights, typical of the Spanish Common Civil Law

2019 ◽  
Vol 11 (2) ◽  
pp. 616
Author(s):  
Laura García Gutiérrez
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Foreign Law ◽  
English Law ◽  
The Law

Resumen: En este recurso de casación, resuelto por el Tribunal Supremo español, se plantea la admisibilidad del reenvío en la sucesión de un nacional británico que afecta a la propiedad de un inmueble situado en España. El Tribunal hace hincapié en su doctrina limitando el juego del reenvío cuando éste conduzca a la fragmentación de la sucesión. Al hilo de esta idea, analiza el concepto de domicilio en Derecho inglés y la incidencia de la fundación de un Trust conforme al Derecho de Malta en la sucesión del causante.Palabras clave: ley aplicable a una sucesión mortis causa, libertad de testar, ley aplicable a la legítima, reenvío de retorno, Trust constituido conforme a un Derecho extranjero sobre bienes no situados en España.Abstract: In this cassation appeal, resolved by the Spanish Supreme Court, the admissibility of the renvoi in the succession of a British national that affects the ownership of a property located in Spain is considered. The Court emphasizes its doctrine limiting the role of renvoi when it leads to the fragmentation of the succession. In line with this idea, it analyzes the concept of domicile in English Law and the incidence of the foundation of a Trust according to the Law of Malta in the succession of the deceased.Keywords: law applicable to succession, Freedom to make a will, Law applicable to Spanish “legítima sucesoria”, Renvoi, Trust founded according to a Foreign Law on goods located abroad.

Part IV Procedural and Institutional Aspects, Ch.29 The Role of Domestic Courts

2020 ◽  
Author(s):  
Siehr Kurt
Keyword(s):  
Public Policy ◽  
Applicable Law ◽  
Art Object ◽  
Foreign Law ◽  
Domestic Courts ◽  
Mandatory Rules ◽  
Institutional Aspects ◽  
The Law ◽  
Local Courts

This chapter discusses the important role of local courts in art law disputes. In several cases, a foreign country as defendant has raised the defence of immunity. With respect to jurisdiction, two different kinds must be distinguished: international jurisdiction and subject matter jurisdiction. Subsequently, several questions of the applicable law may become important in art law cases. They range from the law applicable to contracts to the law applicable to succession. If foreign law has to be applied, the result of this application may be changed or modified by public policy of the forum State or, if local law is applicable, foreign mandatory rules may be considered and given effect in the forum State. There are hardly any foreign judgments which had to be enforced in local fora. Most of the cases were decided in the country where the art object or its owner were located and therefore could be enforced in the country of decision.

13 Expert Evidence

2019 ◽  
Author(s):  
Brealey Mark ◽  
George Kyla
Keyword(s):  
Economic Analysis ◽  
Conflict Of Interest ◽  
Civil Procedure ◽  
Expert Evidence ◽  
High Court ◽  
Practical Guide

This chapter examines the use of expert evidence, and more specifically the role of economic experts and economic analysis, in competition-related litigation. It first provides an overview of the duties and responsibilities of experts, focusing on how expert evidence differs from factual evidence, issues addressed by expert evidence, the rules that apply to the production of expert evidence in the High Court and in the Competition Appeal Tribunal (CAT), and conflict of interest involving experts. The chapter then presents a practical guide to the use of experts in the course of competition litigation, covering the requirements of the relevant CAT Rules and Civil Procedure Rules 1998 (CPR), from instructing an expert to the submission of the formal written report, discussions between experts and joint statements after service of reports, and hearing of expert evidence at trial. Statutory provisions regarding concurrent expert evidence or ‘hot tubbing’ are also considered.

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