Foreign Law as a Distinctive Fact--To Whom Should the Burden of Proof Be Assigned?

AbstractTable of ContentsI. Introduction and Overview. 627H. Foreign Law As a Fact-A Positive Analysis. 637A. Failure to Prove Foreign Law. 637B. Foreign Law As a Unique Fact. 640EL Normative Implications. 643A. Shifting the Burden of Production. 644B. Shifting the Burden of Persuasion. 6451. The "narrow" argument. 6452. The "broader" argument. 647IV. Conclusion. 651I. INTRODUCTION AND OVERVIEWOne of the difficult tasks that faces a domestic court during the notoriously complex choice of law process is ascertaining the content of an applicable foreign law.1 After characterizing2 the specific dispute,3 choosing the correct connecting factor, localizing that factor to decide the exact territory whose law should apply, and deciding that no reason exists to refrain from applying a particular foreign law to which the choice-of-law process directs,4 the court still must ascertain the content of the applicable foreign law.5 Indeed, in an adversarial judicial process, parties may agree on the contents of a particular applicable foreign law.6 If reasonably possible, parties will rarely, however, skip an opportunity to gain an advantage over their opponent by taking a rival position in any dispute that arises, including a dispute over the content of a particular foreign law.7 In such a case, the court has no option but to attempt to ascertain the content of that law.Surveying private international law (conflict of laws) in various jurisdictions around the world reveals that two central models dominate the effort to establish an applicable foreign law in specific disputes.8 In the first model, foreign law is considered by the forum court to be a matter of law and, therefore, the forum court, having been briefed by the parties, decides the content of the foreign law.9 In the second model, foreign law is treated by the forum court as a question of fact rather than law.10 Therefore, it must be proved in accordance with the forum's rules of evidence by the party whose claim- whether a cause of action or a defense"-is based, whether to his benefit or detriment, upon that foreign law.12Jurisdictions that consider foreign law, when applicable in a civil litigation, to be a question of fact need also to decide on the legal result of failure to prove the contents of the applicable foreign law by the litigant whose claim is based on that law. Practically speaking, this question usually arises during trial after evidence-hearing when the trier of fact needs to determine what the relevant facts are. Under the terms of the law-as-fact model, failure by the party asserting foreign law as part of his claim to provide proof,13 or such that convinces the court by a preponderance of the evidence,'4 as to the contents of the applicable foreign law would result in dismissal of the claim.15 The only exceptions to a full dismissal of the claim are: (1) cases in which either the court decides to employ the Presumption of Identity of Laws (also known as the Presumption of Similarity of Laws) on the assumption that the specific foreign law is identical to the law of the forum (which is therefore applied instead of the foreign law) and (2) cases in which the court decides forthrightly to apply forum law instead of the applicable but un-established foreign law.16 The Presumption of Identity of Laws, like the straightforward application of the law of the forum, is usually employed based on one or more of the following three rationales:17 (1) to refrain from the injustice associated with dismissing a claim when the specific foreign law upon which it is based is relatively difficult to ascertain and prove under the particular circumstances of the case;18 (2) to refrain from the injustice associated with dismissing a claim when the court has concrete indication that the foreign law is at least somewhat similar to the law of the forum19 (in such a case, the court's judicial commission of discovering the truth would be undermined if the claim were dismissed altogether);20 and (3) because the law of the forum is considered by the forum court to be of subsidiary nature and applicability. …