Over the past year, students at Sciences Po Law Clinic (Bianca Florea, Enora Lewandowski and Leticia Lopes) have been working with PGMBM on a project investigating the way foreign law is interpreted in the English, French and German courts. Their findings have been published in a report.
This post discusses one of the questions considered as part of the report: how the European courts approach the interpretation and application of foreign law when there is limited precedent or guidance from the courts of the foreign state.
This is an issue familiar from many of PGMBM’s cases. The question of liability of the ultimate parent company of a multinational group under Brazilian law, which arises, for example, in Mariana v BHP, has not previously been the subject of consideration by the Brazilian courts.
Basics of pleading foreign law in the European courts
The English courts take a different approach from their civil law counterparts, the French and German courts.
In the English courts, parties contest the interpretation and application of foreign law, seeking to plead and prove a version of foreign law that is favourable to their case.
Expert reports on foreign law are the centrepiece of the evidence adduced by the parties, which are most often from retired judges or academics.
The role of the English judge is to assess this evidence and adjudicate between the competing interpretations of the law argued for by the parties’ experts.
Conversely, the French and German courts require the judge to investigate the content themself by consulting neutral sources of information.
For example, a French judge might consult an expert from the Supreme Court’s official list and a German judge an expert from the German research institute’s list. Ultimately, a French or German judge aims to decide a question in the same way as a judge from the relevant foreign court.
How would the European courts approach unprecedented issues of foreign law?
Though the English, French, and German courts take different approaches to the interpretation of foreign law, they all attempt to follow the foreign state’s courts, not to make foreign law.
Thus, when a novel issue arises, a European court must do its best to determine the position under foreign law from whatever information is available.
In Vilica v Xstrata Ltd, the English court adopted an interpretation of Peruvian law for which there was no precedent in Peruvian law and limited doctrinal support. But, as Stuart-Smith J stated:
‘The absence of doctrine merely has the effect that the materials available to the English Court are less substantial than they might otherwise be.’ (104, Xstrata)
This approach does not leave much scope for the development of foreign law by the European courts. The English court in particular is limited by the hard evidence before it.
How to plead unprecedented issues effectively
Pleading any issue of foreign law (unprecedented or not) is unpredictable and comes with considerable litigation risk. In PGMBM’s experience, it is important to make issues as simple and intuitive as possible.
Where an issue is novel and the evidence before the court is limited, the logical coherence of a party’s position and the extent to which it is integrated within the established foreign law framework will also be key.
 Brazilian law is the applicable law pursuant to Articles 4 and 7 of Rome II.
 By contrast, the French and German courts, which decide an issue of foreign law as a foreign judge would, may have more room to develop the interpretation of foreign law along (for example) doctrinal lines (though obviously not in contradiction of the foreign court). This requires further investigation.
Author: Daniel Malcolm, Legal Research Associate at PGMBM, Bianca Florea, Enora Lewandowski, and Leticia Lopes, SciencesPo Law Clinic Students.