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Chicago Journal of International Law

Abstract

Some jurisdictions allow a civil claim to be based on foreign law. Those jurisdictions that consider the foreign law to be a question of fact need to decide the legal result of the claimant's failure to prove the contents of the applicable foreign law. Conventional doctrine usually assigns the burden to prove the contents of foreign law (in the sense of persuasion) to the party whose claim is based upon that law, and thus failure to meet that burden ends in the claim being dismissed. The only two exceptions are cases in which the presumption of an identity of laws (presumption of similarity) is evoked or cases in which failure to prove foreign law straighforwardly prompts the court to apply local law as subsidiary law. In these exceptional cases, the application of the law of the forum results in the burden of proof shifting onto the opponent of the claim. Against this backdrop, I propose a new approach for assigning the burden of persuasion regarding the contents of an applicable foreign law. I argue that when foreign law is treated as fact, its unique features as such should be recognized by lawmakers. As a fact, foreign law usually necessitates expert witness testimony, but is relatively easy to ascertain (that is, evidence can always be found). On the other hand, foreign law is also expensive to prove and occasionally more accessible to one litigant than to the other. Moreover, litigants cannot argue that they were surprised by the reassignment of the persuasion burden. Thus, I argue that while the burden to persuade the court as to the content of foreign law ordinarily should rest on the litigant who asserts a claim based in foreign law, the burden should also shift more easily to the other party to promote cost-efficient truth-discovering. The normative part of the paper starts by arguing that the persuasion burden should shift in cases in which the rationales supporting the presumption of identity of laws or the straighfforward application of local law as subsidiary law apply, notwithstanding the contents of the law of the forum and whether or not applying it would benefit the party attempting to prove an applicable foreign law. Such an approach is justified at least on grounds of coherence, as the persuasion burden already shifts whenever the law of the forum is applied instead of the applicable foreign law. Indeed, the contents of the law of the forum, per se, should not become a factor in the decision on how to allocate the persuasion burden. The paper then moves on to develop a broader argument. As a general rule, it is suggested that the burden of persuasion with regard to the contents of an applicable foreign law shift f the opposing litigant enjoys a clear comparative advantage in providing proof as to the content of that foreign law, while the costs of providing such proof should be assigned on a "loser pays" basis.

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