The Application of Foreign Law in the British and German Courts

Alexander DJ Critchley is an Advocate at the Faculty of Advocates, Edinburgh, and a Tutor of International Private Law at the University of Edinburgh, UK.

1. Fundamentals
I. Preliminary Matters
A. Putting the Application of Foreign Law into Context
B. The Delimitation of Procedure and Substance in the Choice of Law Process
C. Transformation of the Applicable Choice of Law Rules and the Impact of Brexit
II. Prerequisites to Applying Foreign Law by Means of Choice of Law Rules
A. Necessity of a Foreign Element in the Factual Matrix of the Case
B. Willingness to Apply Foreign Law
C. Existence of a Norm Compelling the Application of Domestic Law
D. A Choice of Law Rule
E. A Mechanism to Facilitate the Investigation and Determination of Foreign Law

2. Historical
I. Great Britain
A. Scotland
B. England
II. Germany
A. Legislative
B. Judicial
C. Academic
D. Mechanisms of Proof
III. Conclusions

3. Present
I. Introduction
II. The Court
A. The Introduction and Application of Choice of Law Rules
B. The Investigation and Determination of the Content of Foreign Law
III. The Parties
A. Role in the Introduction of Choice of Law Rules
B. Role in Investigating the Content of the Applicable Foreign Law
IV. Experts
A. Procedural Background
B. Qualifications
C. Role and Duties
D. The Interaction between the Court, the Parties, and the Experts
E. Costs
V. Failure to Prove the Content of the Applicable Foreign Law
A. Causes
B. Outcomes
VI. Appeals
A. Incorrect Application of the Relevant Choice of Law Rule
B. Failure to Adequately Investigate the Content of the Applicable Foreign Law
C. Incorrect Determination of the Content of the Applicable Foreign Law

4. Future
I. Domestic Reform
A. Voluntary Choice of Law
B. Conceptual Treatment of Foreign Law
C. Specialist Courts
II. Multilateral Reform
A. Aiding the Investigation of the Content of the Lex Causae
B. Reducing the Need to Apply Foreign Law

Summary and Primary Conclusions