The "Proof" of Foreign Normative Facts Which Influence Domestic Rules

Abstract

This article concerns the ascertainment by judges of normative facts that emanate from within foreign legal orders and must be taken into consideration in the interpretation of domestic rules. The author proposes an analytical approach which is based on three ideas. First, judges must remain in control of the process aimed at ascertaining such facts. Because the interpretation of domestic rules is at stake, they cannot remain passive and rule solely on the basis of the information adduced by the parties, as they normally do while ascertaining the contents of foreign rules under a classic conflict of laws scenario. Second, foreign normative facts are often reasonably disputable, and when that is the case the parties must be afforded the opportunity to comment on whatever information the court intends to rely on while ascertaining the contents of such facts. Finally, the assistance of experts may be necessary in some cases, but full-fledged party-appointed expert testimony will rarely be a cost-effective option. Judges and parties should consider alternative options, such as the testimony of a court-appointed expert or written statements provided by party-appointed experts.