As a result of globalization and the growth in cross-border trade and investment activities, courts in countries like Australia are increasingly hearing commercial disputes in which both parties are from countries outside Australia.
An example is a dispute between two Chinese parties in relation to an investment in a company over a mining operation in Australia. In such circumstances, judges sometimes need to assess evidence about foreign law. Foreign law may be relevant to questions such as whether one of the parties had capacity to enter into a contract, whether the investment complied with Chinese foreign exchange regulations, and whether an Australian judgment would be recognized and enforced in China. Foreign law will also be relevant where a dispute arises in relation to a contract that is governed by foreign law.
In common law jurisdictions, a question under foreign law is treated as a matter of fact that needs to be proved by expert evidence. If there is a dispute as to the interpretation and application of foreign law, the parties will engage independent expert witnesses to provide expert reports. In situations where the experts disagree as to the position under the foreign law, the experts may be questioned and subject to cross-examination in court. The judge will then assess the expert evidence and endeavour to determine the true position under the foreign law.
This is different from the position in civil law jurisdictions, where a question under foreign law is generally treated as a matter of law and the court can make its own investigations to determine the position. In civil law jurisdictions, foreign law experts are sometimes engaged by the court itself, and operate under its direction (for a discussion about these issues, see China Business Law Journal volume 7, issue 4: Determining foreign law; and China Business Law Journal volume 10, issue 4: Expert evidence).
Whether a judge needs to assess expert evidence on foreign law will depend on the specific matter, and whether foreign law is relevant. It is, of course, much more common for judges to assess factual evidence from the parties themselves, and from other witnesses. For this purpose, judges often hear oral testimony from the witnesses in court. When judges hear and assess oral testimony, they often consider the demeanour of the witnesses to determine their credibility; namely, whether the witnesses are telling the truth and providing evidence that is reliable. The English word “demeanour” refers to the way in which a person behaves, speaks and communicates with others.
The process of assessing demeanour can be difficult for a judge when the witness is from another country and belongs to a culture that is different from that of the judge. It can be even more difficult if the witness cannot speak English and needs to communicate through an interpreter. Difficulties can also arise in the case of self-represented parties; namely, parties who represent themselves and do not engage a lawyer to represent them in court (for a discussion about the challenges in this regard, see China Business Law Journal volume 7, issue 9: Self-represented parties).
These difficulties have been noted by judges in Australian cases. For example, a judge from the New South Wales Supreme Court stated the following in a case that was decided in 2010:
The fact that key witnesses gave evidence through an interpreter limits the ability of a tribunal of fact to assess demeanour as an aid to fact finding. Further, great care must be exercised in making demeanour findings where witnesses are from a different cultural and ethnic background to that with which the Judge is familiar … It is necessary to weigh impressions as to demeanour carefully against the probabilities, and to examine whether the disputed evidence is consistent with incontrovertible facts, facts that are not in dispute, and other relevant evidence in the case…
– Justice Johnson in Jinhong Design and Constructions Pty Ltd v Xu and Anr
In the past decade, courts in common law jurisdictions such as Australia have realised that it is important for judges to strengthen their awareness of other cultures, and for judicial training colleges to incorporate cultural awareness and cultural diversity into their judicial training programmes.
Judicial training in countries such as Australia has been accompanied by conferences on cultural diversity and also by the publication of papers and benchbooks. A benchbook is a book that provides guidance to judges in areas such as civil and criminal procedure. In Australia, judicial training colleges have also published benchbooks to provide guidance to judges on the customs and cultures of Australia’s indigenous people.
Of course, there are inherent difficulties in designing training about culture. As this column has previously noted (see China Business Law Journal volume 5, issue 10: Cross-cultural communications), “culture” is a word that is subject to so many different meanings and interpretations that it has become virtually meaningless. The term “culture” is one of the most used (and misused) words in the English and Chinese languages, and is often used to describe or explain something when another term or label does not exist.
Justice Kyrou of the Court of Appeal in Victoria has identified the need for judicial officers to develop “a mental red-flag cultural alert system, which gives [them] a sense of when a cultural dimension may be present so that they may actively consider what, if anything, is to be done about it” [Emilios Kyrou, Judging in a multicultural society (2015)]. Just as it is important to be aware of how culture might have an impact on the way in which somebody behaves or communicates, it is equally important to be aware that culture may not have any impact at all.
Experience reveals a few truths about culture. First, it should be clear to everyone that culture is not always the same as nationality. People can have the same nationality (e.g., Australian nationality or Chinese nationality) but belong to different cultural backgrounds. Second, culture is not always synonymous with language; in other words, the fact that people speak the same language does not mean that they share the same culture. Third, culture is not homogenous, static or absolute, and changes and evolves at different times and in different ways. For example, one culture may consist of several sub-cultures and it may vary across generations. Finally, as noted above by Justice Johnson, culture is usually just one part of the factual matrix that courts need to consider. It is rarely determinative by itself.
Culture is reflected in the different ways that people negotiate and in the different attitudes that people have towards the legal system and concepts such as mediation (for a discussion about the differences in this regard, see China Business Law Journal volume 2, issue 9: Mediation or conciliation; and China Business Law Journal volume 4, issue 5: Negotiate].
Despite the difficulties in designing training in culture, there are various ways of bridging the cultural gap in court proceedings. These include strengthening awareness of other cultures, as noted above. Such a process might be described as developing “cultural intelligence” on the part of courts and lawyers. In addition, it is important for judges and lawyers to adopt and implement strategies and techniques to ensure that cultural misunderstandings do not arise. For example, experience reveals that when a judge gives a direction or order to a party, it is usually better to avoid asking the question “Do you understand the order?” and, instead, to ask the question, “Is there anything about the order that is not clear?” The reason for this is that people from certain cultures are likely to say “yes” to the first question, even if they do not understand the order, as they either misinterpret the question to be, “Will you obey the order?” or they are too embarrassed to admit that they do not understand.
Finally, it is important to redress the diversity imbalance – in both ethnicity and gender – among the legal profession and judiciary in common law jurisdictions such as Australia (for a recent discussion of diversity, see China Business Law Journal volume 11, issue 1: Chinese legal pioneers).
A Chinese case study
Culturally and Linguistically diverse parties in the courts. A leading-edge report was launched in New Zealand in November 2019: Culturally, Ethnically and Linguistically Diverse Parties in the Courts: A Chinese Case Study (see https://www.superdiversity.org/research-reports/reports/). The report was authored by Mai Chen, chair of the Superdiversity Institute for Law, Policy and Business, and examines the key issues and challenges faced by culturally, ethnically and linguistically diverse (CALD) parties in getting equal access to justice in New Zealand courts. The report includes perspectives from judges, lawyers and interpreters, and makes a number of important recommendations.
According to the media release for the report, the percentage of New Zealanders who identified with at least one Asian ethnicity grew from 11.8% in 2013 to 15.1% in 2018. China is now the third-most-common place of birth after New Zealand and England.
The report confirms many of the challenges outlined above; namely, cultural background and language limitations are key issues for CALD parties who come before the courts in New Zealand. By way of example, the report notes that culture affects: the way that they present evidence; the way that they respond to questioning of their actions and motivations; their confidence in representing themselves without the assistance of legal counsel; and their perceptions as to the role, impartiality and independence of courts and judges.
Significantly, the introduction to the report identifies communication as both a barrier and a solution to the challenges:
Increasing superdiversity in New Zealand means that the court system has to be adequately equipped to ensure that those of culturally and linguistically diverse backgrounds are not denied equal access to justice because of cultural and linguistic differences. Our research has shown that clear and accurate communication is a potential barrier to achieving access to justice where parties are from different cultural and language backgrounds.
The findings in the report are also illustrative of the challenges faced by CALD parties in other countries such as Australia, and will be very useful in informing courts and the legal profession about those challenges and how they might be overcome.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia