In today’s world, where cross-border transactions are increasingly common, there are many disputes in which issues will be governed by foreign law. This may be because the governing law of a contract is a foreign law, and the foreign law is relevant for interpreting the terms of the contract and the rights and remedies that are available (for a discussion of the governing law of a contract, see China Business Law Journal, volume 3 issue 10, page 73: Governing law or proper law?). Alternatively, foreign law issues may be relevant as a result of the application of general principles under private international law. As a result, the question of how foreign law is determined is of critical importance for the legal system in every jurisdiction.
This article considers how foreign law is determined in court proceedings, and examines the issues comparatively in common law jurisdictions, civil law jurisdictions and in China. Finally, it notes the approach of the recently established Singapore International Commercial Court, which represents a departure from the traditional common law approach.
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.com.