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Pleading and Proof of Foreign Law: The Major European Systems Compared

Published online by Cambridge University Press:  17 January 2008

Trevor C. Hartley
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Though generally uncontroversial in England, the rules on pleading and proof of foreign law are nevertheless of interest from the comparative point of view by reason of the diversity of approaches found in different European countries. There is, moreover, a feeling on the part of some Continental lawyers that the English rules undermine the objectives of international and EU initiatives on conflict of laws and that the United Kingdom does not, therefore, fully carry out its international and EU obligations in this regard. These accusations have been levelled in particular with regard to the Rome Convention.1 In view of this, a comparative study of the different approaches in the main European countries might be timely; it might also provide an appropriate background for an examination of the question whether the Rome Convention requires any modification of the traditional English approach.

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Articles
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International & Comparative Law Quarterly , Volume 45 , Issue 2 , April 1996 , pp. 271 - 292
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Copyright © British Institute of International and Comparative Law 1996

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References

1. The Convention on the Law Applicable to Contractual Obligations, opened for signature in Rome on 7 Dec. 1981, O.J. L266/1.

2. This is the position in England: see Parkasho v. Singh [1968] P. 223, 250.

3. The word “appeals” is used here in a broad sense to include such remedies as Revision in German law and cassation in French law.

4. For Germany (appeals to the Bundesgerichtshof). see below; for the Netherlands (appeals to the Hoge Raad), see the Wet Rechterlijke Organisatie (Judicial Organisation Act), Art.99(1), point 2 (for limited exceptions, see Jessurun, H. U. d'Oliveira, “Foreign Law in Summary Proceedings”, in Malhilde, Sumampouw et al. (Eds), Law and Reality (1992), p.119 at p.123).Google Scholar

5. England: see infra. The position regarding jury trials in England is also paradoxical.

6. The extent to which such a request must be made in a particular form varies from country to country.

7. In the Netherlands e.g. such agreements are permitted whenever the case involves patrimonial matters (vermogensrechtelijke taken), a concept also applied to determine whether a dispute is subject to settlement by arbitration: see Court of Appeal of 's-Hertogen-bosch, 20 Feb. 1989, N.I.P.R. 1989, No.259 (contract concluded prior to the Rome Convention); District Court of Rotterdam, 8 Jan. 1979, N.J. 1979, 1134; N.I.L.R. 1981, p.63 (tort: Rhine pollution); Hoge Raad, 19 Nov. 1993, N.J. 1994,622; N.I.L.R. 1994, p.363 (note by H. Duintjer Tebbens) (tort).

8. The literature is vast. The main works in English are cited and discussed in Cheshire and North, Private International Law (12th edn. 1992, North, P. M. and Fawcett, J. (Eds)), pp.27–40.Google Scholar

9. For the Dutch concept, see supra n.7; for the Swiss and French concepts, see the discussion of Swiss and French law, infra.

10. This section is based on information, material and citations supplied by Professor Karl Kreuzer.

11. See Jan, Kropholler, Internationales Privatrecht (2nd edn, 1994), p.519Google Scholar; Christian von Bar, Internationales Privatrecht, Vol.I: Allgemeine Lehren (1987), note 372; Reinhold Geimer, Internationales Zivilprozeβrecht (1987), note 2136; Peter, Arens, Proiessuale Probleme bei der Anwendung ausländischen Rechts im deutschen Zivilprozeβ, Festschrift für lmre Zajtay (1982), p.7 at p.8Google Scholar; Lorenz, Fastrich, “Revisibilität der Ermittlung ausländischen Rechts” (1984) 97 Z.Z. P. 423, 427Google Scholar; Erwin, Riezler, Internationales Zivilprozeβrecht undprozessuales Fremdenrecht (1949), p.493Google Scholar; Geimer in Richard Zöller, Zivilprozeβordnung (19th edn, 1995), §293 ZPO note 14.Google Scholar

12. See Bundesgerichtshof, judgment of 21.02.1962, B.G.H.Z. 36, 348, 353; Bundesgerichtshof, judgment of 30.03.1976, N.J.W. 1976, 1581, 1582; Kropholler, idem, p.520; von Bar, idem, note 373; Geimer (1987), ibid; Sonnenberger, in Münchener Kommentar zum Burger-lichen Cesetzbuch, Vol.7: Einführungsgesetz. Internationales Privatrecht (2nd edn, 1990), Einl. note 453Google Scholar; Hartmann, in Adolf, Baumbach, Zivilprozeβordnung (53rd edn, 1995), §293 ZPO note 6Google Scholar; Fastrich, idem, pp.424 et seq.; Werner, Geisler, “Zur Ermittlung auslandischen Rechts durch ‘Beweis’ im prozeB” (1978) 91 Z.Z.P. 176, 181 et seq.Google Scholar; Gerhard, Kegel, Internationales Privatrecht (7th edn, 1995), pp.362 et seq.Google Scholar See also Gerardo, Broggini, “Die Max-ime ‘iura novit curia’ und das ausländische Recht. Ein Beitrag zur Präzisierung des §293 ZPO” (1956) 155 A.c.P. 469 et seq.Google Scholar

13. See Bundesgerichtshof, judgments of 23.12.1981, NJ.W. 1961, 410; 10.07.1975.N.J.W. 1975, 2142, 2143; 30.03.1976. N.J.W. 1976, 1581; 16.10.1986, W.M. 1987,25,26; Kropholler, idem, p.521; von Bar, idem, note 375; Geimer, idem, note 2138; Kegel, idem, p.363; Geimer (1995), op. cit. supra n.11, at note 15.

14. See Bundesgerichtshof, judgment of 24.11.1960, N.J.W. 1961, 411; H. Dolle, “Bemer-kungen zu §293 ZPO” in Festschrift für Arthur Nikisch (1958), p.195; Kegel, idem, p.316.

15. Geimer (1987), op. cit. supra n.ll. at note 2141.

16. Bundesarbeitsgericht, judgment of 10.04.1975, R.I.W. 1975, 521; von Bar, op. cit. supra n.11, at note 373; Geimer, idem, note 2140.

17. See von Bar, ibid; Geimer (1995), op. cit. supra n.11, at §293 ZPO note 17.

18. See Bundesgerichtshof, judgment of 18.01.1988, N.J.W. 1988,1592.

19. See e.g. von Bar, op. cit. supra n.11 (Vol.II, 1991), at p.341.

20. Zivilprozeβordnung, s.549(1).

21. There are certain qualifications or exceptions: e.g. if the trial court failed to appreciate that foreign law was applicable; if it did not properly carry out its duty to ascertain it; if it wrongly concluded that it was impossible to ascertain it; if the foreign law was retrospectively changed after the trial court made its finding; if proper application of the foreign choice of law rule would, under the renvoi doctrine, lead to German law; or if the jurisdiction of the German court depended on a rule of foreign law. In addition, there is an exception in the field of labour law.

22. This section is based on information and material provided by Professor Andreas Bucher and Professor Kurt Siehr. See in particular Andreas Bucher, Droil International Privé Suisse (1995), Vol.I/2, Partie Générate—Droit Applicable, §§360 el seq.

23. Loi fédérate sur le droit international privé.

24. “Le contenu du droit étranger est établi d'office.” It is, however, provided that the court may ask the parties for their assistance in this regard.

25. “En matière patrimoniale, la preuve peut être mise à la charge des porties.” See Bucher, op. cit. supra n.22, at §§375–379. It is not entirely appropriate to talk of the “burden of proof” in this context; it is, rather, a matter of freeing the court from its duty to apply foreign law ex officio: failure to prove foreign law does not result in a ruling against the party claiming a right based on it, but merely in the application of Swiss law. It is interesting to note that the provision quoted above was not in the original draft of the 1987 Act, but was added as an amendment during its passage through the Swiss Federal Parliament. It was apparently a compromise aimed at securing the acceptance of the general principle of application ex officio. It is possible that the provision will not apply when foreign law is applicable by virtue of an international convention: Bucher, idem, §381. It has also been suggested that it should not be applied where this would jeopardise the objectives of the choice of law rule in issue: idem, §380.

26. “Le droit suisse s 'applique si le contenu du droit étranger ne peut pas être établi”

27. See supra n.7.

28. See infra.

29. Bucher, op. cit. supra n.22, at §375.

30. This subsection is based on information and material supplied by Professor Hélène Gaudemet-Tallon.

31. Civ. 12 May 1959, D. 1960.610, note Malaurie; J.C.P. 1960.11.11733, note Motulsky; Clunet 1960.810, note Sialelli; Rev.crit.dr.int.pr. 1960.62, note Batiffol; Ancel, B. and Lequette, U., Grands arrêts de la jurisprudence française de droil international privé (2nd edn, 1992), No.33.Google Scholar

32. A decree of judicial separation was already in force and the court was asked to convert this into a divorce.

33. Civ. 2 Mar. 1960, Rev.crit.dr.int.pr. 1960.97: J.C.P. 1960.II.11734, note H.M.; Clunet 1961.408, note B.C.; Ancel and Lequette, op. cit. supra n.31, at No.34.

34. See infra.

35. Civ. 25 Nov. 1986, Rev.crit.dr.int.pr. 1987.383. note Ancel and Lequette; J.C.P. 1988.II.20967, note Courbe; and Civ. 25 May 1987, Clunet 1987.927, note Gaudemet-Tallon; Rev.crit.dr.int.pr. 1988.60, note Lequette; J.C.P. 1988.II.20976, note Courbe.

36. Civ. 11 and 18 Oct. 1988, Clunet 1989.349, note Alexandre; J.C.P. 1989.11.21327. note Courbe; Rev.crit.dr.int.pr. 1989.368; Ancel and Lequette, op. cit. supra n.31, at Nos 70 and 71.

37. “[L]e juge droit trancher le litige conformémenl aux règies de droit qui lui sont applicable.”

38. Civ. 4 Dec. 1990, Clunet 1991.371, note Bureau; Rev.crit.dr.int.pr. 1991.558, note Niboyet-Hoegy; Ancel and Lequette, op. cit. supra n.31, at No.72.

39. “[E]n une matière où les ponies ont la libre disposition de leurs droits” See also Cour de cassation. Civ. 4 Oct. 1989, Rev.crit.dr.int.pr. 1990.316, note Lagarde.

40. For a case in which it has been held to cover paternity proceedings, see Cour de cassation. Civ. 18 Nov. 1992, Clunet 1993.309, note Lequette; Rev.crit.dr.int.pr. 1993.276, note Ancel.

41. Lagarde, Rev.crit.dr.int.pr. 1994.332, 337.

42. Ibid.

43. This would constitute a procedural agreement under Art.12(3) of the New Code of Civil Procedure.

44. See Roho, Cour de cassation. Civ. 19 Apr. 1988, Rev.crit.dr.int.pr. 1989.69, note Batiffol.

45. See the note by Lagarde to Cour de cassation. Civ. 4 Oct. 1989, Rev.crit.dr.int.pr. 1990.320–322.

46. This subsection is based on information and material supplied by Professor Paul Lagarde. See also Lagarde, op. cit. supra n.41 (note on Amerford, infra).

47. Named after the two leading cases: Lautour, Cour de cassation. Civ. 25 May 1948, Rev.crit.dr.int.pr. 1949.89, note Batiffol; D.1948.357, note P.L.-P.; S.1949.I.21, note Niboyet; J.C.P. 1948.II.4532, note Vasseur; and Société Thinet, Cour de cassation. Civ. 24 Jan. 1984, Clunet 1984.874, note Bischoff, Rev.crit.dr.int.pr. 1985.89, note Lagarde.

48. “La charge de la preuve de la lot étrangère pèse sur la panic dont la prétention est soumise à cette loi el non sur celle qui l'invoque, fçt-ce à l'appui d'un moyen de défence.” Societe Thinet, ibid.

49. There was one exception: when the principal claim was governed by French law and the defendant raised a plea of inadmissibility, the latter had to prove that this plea was justified under the foreign law.

50. Ch.com. 16 Nov. 1993, Rev.crit.dr.int.pr. 1994.332, note Lagarde; Clunet 1994.98, note Donnier.

51. Lagarde, idem, pp.338–339.

52. See Société Daman. Civ. 5 Oct. 1994, Rev.crit.dr.int.pr. 1995.60, note Bureau.

53. This subsection is based on information and material supplied by Professor Catherine Kessedjian.

54. The case law is firmly settled on this point. For an example, see Compagnie algérienne de Crédit et de Banque v. Chemouny, Civ. 2 Mar. 1960, Rev.crit.dr.int.pr. 1960.97; J.C.P. 1960.II.11734, note H.M.; Clunet 1961.408, note E.G.; Ancel and Lequette, op. cit. supra n.31, at No.34.

55. See Dicey, and Morris, , The Conflict of Laws (12th edn, 1993), chap.9Google Scholar; Cheshire, and North, , Private International Law (12th edn, 1992), chap.7Google Scholar; O'Malley, and Layton, , European Civil Practice, chap.9Google Scholar; Fentiman, , “Foreign Law in English Courts” (1992) 108 L.Q.R. 142. For ScotlandGoogle Scholar, see Anton, , Private International Law (2nd edn, 1990), pp.773–780. For AustraliaGoogle Scholar, see Nygh, P. E., Conflict of Laws in Australia (6th edn, 1995)Google Scholar, chap.17. Richard Fentiman is at present writing a book entitled Foreign Law in English Courts, to be published in 1996 by the Oxford University Press in the series Monographs on Private International Law. I am grateful to him for letting me see parts of this in draft and for his comments and assistance. I am also grateful to Mr Ian Karsten QC, Professor Robin Morse and Professor Michael Zander for assistance and ideas; friendly discussions with critics of the English system, such as Professor Hans Ulrich Jessurun d'Oliveira, have helped me to understand the Continental point of view. Needless to say, none of the above has any responsibility for what I have written.

56. An English court is not normally entitled to act ex officio in declaring foreign law applicable. However, it may of its own motion invoke the British Law Ascertainment Act 1859, even though neither party has pleaded foreign law: Topham v. Duke of Portland (1863) I De G.J.& S.517(varied but not on this point sub nom. Duke of Portland v. Topham (1864) 11 H.L.C. 32); Eglinton v. Lamb (1867) 15 L.T. 657; Dicey and Morris, idem, p.226. On the operation of the Act, see infra n.59; see also Dicey and Morris, idem, pp.236–237.

57. If the content of the foreign law is admitted, no proof will be necessary: Dicey and Morris, idem, p.228, notes 25 and 26.

58. There are certain statutory exceptions to this. See e.g. the Maintenance Orders Act 1950, s.22(2).

59. A party cannot prove foreign law simply by citing the text of foreign legislation or by referring to a decision of a foreign court. (For an exception, see the Evidence (Colonial Statutes) Act 1907, which permits Commonwealth statutes to be admitted in evidence without further proof.) A party may, however, ask the court to make an order under the British Law Ascertainment Act 1859, which permits a court in one Commonwealth country to request a court in another Commonwealth country for a ruling on the latter's law. Such a ruling is binding on the court making the request. Recourse to this Act is rare. Similar provision with regard to the la w of non-Commonwealth countries was made by the Foreign Law Ascertainment Act 1861, but no international conventions were concluded to give effect to it and it was repealed in 1973. The UK is a party to the 1968 Council of Europe Convention on Information on Foreign Law and regularly provides information to foreign countries. There is no provision in the rules of court for its use by English courts, but the High Court may have inherent jurisdiction to make a request under it: cf. Panayiotou v. Sony Musical Entertainment (UK) Ltd [1994] Ch. 142, where it was held that the High Court has inherent jurisdiction to issue a letter of request to a court in another country for assistance in obtaining production of a document.

Another method of proof has been established by s.4(2) of the Civil Evidence Act 1972, which provides that where a point of foreign law has previously been decided by an English court, that decision may (subject to certain conditions) be cited in subsequent cases as evidence of the foreign law. Such a decision is not binding on the later court: it merely creates a rebuttable presumption. This rule of “quasi-precedent” is interesting in view of the doctrine that foreign law is fact.

A court is not normally entitled to conduct its own research to ascertain the foreign law, but it may do so if requested by both parties. Courts are not obliged to accede to such a request and are generally reluctant to do so: Dicey and Morris, op. cit. supra n.55, at p.228.

60. Civil Evidence Act 1972, s.4(1).

61. Ibid.

62. See McCabe v. McCabe, The Independent, 3 Sept. 1993, a case involving a marriage under Akan customary law in which a professor from the School gave evidence for the one side and a former colleague of his gave evidence for the other (the identity of the expert witness appears only in the transcript).

63. See X, Y and Zv.B [1983] 2 Lloyd's Rep. 535; [1983] 2 All E.R. 464, in which a New York attorney gave evidence on the one side and a professor at New York University on the other. The latter was, in the words of the judge, “a person of the greatest academic distinction and one of the leading authorities” in the field of law in question.

64. If he does not, the court will normally accept the evidence of the expert called, provided it is coherent and not obviously wrong. However, if the opinion is not supported by the sources quoted, the court may examine the latter for itself and reach its own conclusion. See Dicey and Morris, op. cit. supra n.55. at pp.232–233.

65. idem, p.232. For a case in which a judgment was reversed on this ground, see Bumper Corpn v. Comr of Police of Metropolis [1991] 1 W.L.R. 1362 (CA).

66. This was originally brought about by the Administration of Justice Act 1920, s.15. For the High Court, see now the Supreme Court Act 1981, s.69(5); for county courts, see the County Courts Act 1984, s.68. For criminal cases, see R. v. Hammer [1923] 2 K.B. 786.

67. Parkasho v. Singh [1968] P. 223, 250; approved in Dalmia Dairy Industries Ltd v. National Bank of Pakistan [1978] 2 Lloyd's Rep. 223,286 (CA); Bumper Corpn, supra n.65, at p. 1370.

68. [1984] A.C.I.

69. [1982] Q.B. 349.

70. [1984] A.C. 1.

71. Administration of Justice Act 1960, s.1(2).

72. There is of course a close similarity between New Zealand law and English law, the methods of interpretation in the two systems being virtually identical. Moreover, an appeal lies from New Zealand to the Privy Council, which is the final authority in the New Zealand court system. The House of Lords must, therefore, have felt fully competent to decide questions of New Zealand law. In spite of this, however. New Zealand law is still foreign law in the House of Lords, though not in the Privy Council.

73. See Dicey and Morris, op. cit. supra n.55, at pp.227–229 and 238 (text to n.26); Cheshire and North, op. cit. supra n.55, at p. 107, n.2.

74. There may be other exceptions: see e.g. BP Exploration Co. (Libya) Ltd v. Hunt [1980] 1 N.S.W.L.R. 496, 503; Österreichische Länderbank v. S'Elite Ltd [1981] 1 Q.B. 565 (CA).

75. R. v. Povey (1852) Dears. C.C. 32; R. v. Savage (1876) 13 Cox C.C. 178; R. v. Lindsay (1902) 66 J.P. 505; R. v. Naguib [1917] 1 K.B. 359. See also Dicey and Morris, op. cil. supra n.55, at p.238.

76. The same principle should apply where a petitioner for divorce seeks to establish the validity of the marriage which he is asking the court to dissolve. In such a case the jurisdiction of the court depends on the validity of the marriage and jurisdiction in matrimonial proceedings cannot be established by default or consent. See Kahn-Freund, General Problems of Private International Law (1980), p.115.

77. Rule 10.14 of the Family Proceedings Rules 1991 seems to assume that the foreign law must be proved, but does not say so directly. The same is true of the section in Dicey and Morris on the proof of marriage (op. cit. supra n.55, at pp.655–661).

There are many divorce cases concerning a marriage celebrated in a foreign country in which the petitioner was required to prove that the marriage was valid under the foreign law: see e.g. Cooper-King v. Cooper-King [1900] P. 65; Wilson v. Wilson [1903] P. 157; Baler v. Baler [1907] P. 333. However, where the marriage is celebrated abroad, the formalities required by English law would almost never be satisfied, indeed (except in special cases such as a consular marriage) it is hard to see how they could be satisfied; so the default rule would not normally be of assistance to the petitioner in such cases. However, if the default rule did apply to marriage, a petitioner in an undefended action for the annulment of a marriage celebrated abroad could always succeed by the simple expedient of leading no evidence on the formal requirements of the foreign law and merely showing that the English formalities had not been observed. It is hard to believe that this could be the law.

78. Szechter v. Szechter [1971] P. 286, 296. There are a number of cases in which English law has been applied to decide whether a marriage was invalid for lack of consent, or whether it should be annulled for impotence or wilful refusal to consummate, and in which foreign law was not pleaded even though there were significant connecting factors with foreign countries. However, in the case of consent, the English choice of law rule is uncertain and the lex fori may apply either as the governing law or on the basis of public policy: see Dicey and Morris, idem, pp.682–685. In the case of annulment for impotence or wilful refusal to consummate, the applicable law is probably the lex fori: see idem. Rule 79(3), pp.719–724.

79. See s.1(3) of the Matrimonial Causes Act 1973.

80. It should be remembered that the matrimonial jurisdiction of the English courts is derived from that of the ecclesiastical courts. The letter's procedure was based on the canon law and was more inquisitorial than that of the common law: see Lawrence Stone, Road to Divorce (1995) pp.195–198.

81. [1971] Lloyd's Rep. 363, 366 (CA). See also p.365 (per Davies LJ).

82. [1983] A.C. 168, 189. In making this statement. Lord Diplock was approving a similar statement made earlier by Lord Denning in Singh Batra v. Ebrahim [1982] 2 Lloyd's Rep. 11, 13 (CA). Lord Denning's statement is also set out in the judgment of Ackner LJ in the Court of Appeal in UCM: [1982] Q.B. 208, 241–242.

83. Applicable in the UK by virtue of the Bretton-Woods Agreements Order in Council, S.R. & O. 1946 No.36, Art.3, made under the Bretton-Woods Agreements Act 1945. See Dicey and Morris, op. cit. supra n.55, at pp.1595–1600.

84. By “enforce” is meant either to grant a decree of specific performance or to award damages. It should be noted that the rule applies irrespective of the law applicable to the contract. Art.VIII(2)(b) is not affected by the Rome Convention, since Art.21 of the latter provides that the Rome Convention does not prejudice the application of other international conventions to which a contracting State is a party.

85. [1958] A.C 301.

86. See Cheshire, Fifoot and Furmston's Law of Contract (12th edn, 1991), pp.367–368.Google Scholar

87. Such a rule of English law would be internationally mandatory in terms of Art.7(2) of the Rome Convention. This may in fact be the only way in which the rule in Regazzoni v. Sethia could be applied under the Rome Convention, since Art.16 allows public policy to be used only to exclude the application of the law that would otherwise be applicable, not to require the application of a law that would otherwise be inapplicable.

88. Cheshire, Fifoot and Furmston, op. cit. supra n.86. at pp.391–392.

89. Information supplied by Professor Gerte Reichelt.

90. Information supplied by Professor A. V. M. Struycken and Mr Harry Duintjer Tebbens.

91. Information supplied by Judge Manuel Moura Ramos.

92. Information supplied by Professor Michael Bogdan (Sweden), Professor Ole Lando (Denmark) and Professor Helge Time (Norway). See also Lando at pp.128–140 of Dierk, Müller (Ed.), Die Anwendung ausländischen Rechts im internationalen Privatrecht (1968), Vol.10 of the series Materialien turn ausländischen und internationalen Privatrecht, Max-Planck-Institut für ausländisches und internationales Privatrecht.Google Scholar

93. Information supplied by Professor Andrea Giardina and Professor Fausto Pocar.

94. Law 218 of 31 May 1995.

95. Information supplied by Professor Marc Fallen.

96. Information supplied by Professor A. Borás and Professor J. Gonzáles Campos.

97. Art(1).

98. Art.3(1). Similar language is used in other choice of law provisions in the Convention.

99. This is without prejudice to Art.14, which states that the law governing the contract under the Convention “applies to the extent that it contains, in the law of contract, rules which raise presumptions of law or determine the burden of proof” (emphasis added). This cannot affect the rules on the pleading and proof of foreign law, since they are not part of the law of contract but are part of the law of evidence and procedure: they apply generally to all proceedings, not just those in which a contract is in issue.

100. Dicey, and Morris, , op. cit. supra n.55, at p.229. The Giuliano-Lagarde Report (1980) O.J. C282/1, at p.36, states that Art.1(2)(h) was inserted in order “that there should be no doubt as to the freedom retained by the States regarding questions of evidence not decided by the Convention”. The only questions of evidence dealt with by the Convention are those under Art. 14.Google Scholar

101. In any event, failure to plead foreign law could be regarded as an implied choice of (forum) law under Art.3(2).

102. However, where the consumer or employee fails to plead foreign law due to ignorance, it might be desirable for the court to explain the position to him and to give him the opportunity to amend his pleadings if he so wishes.

103. It is not in force in Germany or the UK. See Art.22(1)(a) and. for the UK, s.2(2) of the Contracts (Applicable Law) Act 1990.