Proof of foreign law: a reduced role for expert evidence?

This article considers the position as to proof of foreign law in the English courts in light of the case of FS Nile Plaza v Brownlie [2021] UKSC 45 and the 11th edition of the Commercial Court Guide. We discuss the “old notion” of proof by expert witnesses, the extent to which recent developments displace the traditional role of the expert and enhance that of the advocate, and the dicta in Brownlie concerning the presumptions of similarity and continuity and judicial notice. While welcoming the greater flexibility in the way foreign law can be put before the English court, we argue that the use of oral expert evidence and cross-examination will remain important in at least two types of case: those where the issue of foreign law is complex or novel, and those where the English court does not just need to ascertain the “correct” interpretation of foreign law, but rather predict whether a foreign court would in reality provide appropriate relief in relation to the matter before the court.


A. Introduction
There has long been discussion about how to prove foreign law in an English court. 1 The current view is set out in Dicey, Morris and Collins, The Conflict of Laws ("Dicey, Morris and Collins"), Rule 2: (1) Where a party relies on foreign law, that law must be pleaded and proved as a fact to the satisfaction of the court by evidence or sometimes by other means.(2) In a case involving a foreign element in which foreign law is not pleaded, the court will apply English law.(3) Where foreign law is recognised to be applicable, but there is no evidence, or insufficient evidence, of the content of the foreign law, it will in general be presumed to be the same as English law. 2 In two respects the wording of Rule 2 has been changed from what in the previous edition of Dicey, Morris and Collins was Rule 25.The old Rule 25 stated that foreign law must be proved "by expert evidence or sometimes by certain other means" and contained no equivalent of clause 3 of the new Rule 2. 3 Both changes reflect the clarification and development of the law by the Supreme Court case of FS Nile Plaza v Brownlie 4 (hereafter, as it was the second time this litigation reached the Supreme Court, referred to as "Brownlie II").Lord Leggatt (who gave the leading judgment on the foreign law issues, although he dissented on other grounds from the decision in Brownlie II) pointed out that the old Rule 25 conflated two different propositions.One was the "default rule" that where foreign law is not pleaded, the court will apply English law (now Rule 2(2)).The second was that when the evidence of foreign law was unsatisfactory, the court could sometimes fill the gap by invoking a presumption that the foreign law in question was similar to English law (now Rule 2(3)). 5hile "certain other means" of proving foreign law had long existed, as Fentiman has demonstrated, 6 they wereas the word "certain" in the old Rule 25 impliedrestricted and were little used.In particular, reported cases of judges (with the agreement of the parties) interpreting and applying foreign legal provisions without the assistance of experts were few and far between. 7The statutes of certain current or former colonies can be put in evidence without being proved by an expert, though they may need an expert to interpret them. 8The London Convention of 1968 provides a mechanism for the courts to consult the authorities of the country whose law is in question but it is seldom, if ever, used by the English courts. 9More significantly, foreign law need not be proved if it is admitted. 10Before Brownlie II, however, the standard means of proof was expert evidence as stated in the old Rule 25.
The Brownlie II case is one of two recent developments that appear to herald a new approach to foreign law, allowing the courts to dispense with expert evidence 2 Lord Collins and J Harris (gen eds), Dicey, Morris and Collins on the Conflict of Laws (16th ed, 2022) para 3R-001. 3Lord Collins (gen.ed), Dicey, Morris and Collins on the Conflict of Laws (15th ed, 2012) para 9R-001. 4[2021] UKSC 45, [2021] 3 WLR 1011. 5Ibid, [112]; Dicey, Morris and Collins, n 2 above, para 3-024. 6R Fentiman, Foreign Law in English Courts (Oxford University Press 1998), 204-210. 7Re Cohn [1945] Ch 5; F & K Jabbour v Custodian of Israeli Absentee Property [1954] 1 WLR 139.For a recent, unreported example see Navigator Equities Ltd v Deripaska [2021] EWCA Civ 1799, [96] and n 9. 8 Evidence (Colonial Statutes) Act 1907.Dicey, Morris and Collins (n 2), para 3-021. 9B Rodger and J van Doorn, "Proof of Foreign Law: The Impact of the London Convention" (1997) 46 International and Comparative Law Quarterly 151; J Verhellen, "Access to Foreign Law in Practice: Easier Said than Done" (2016) 12 Journal of Private International Law 281. in a wider range of cases.The other development is the publication in February 2022 of the 11th edition of the Commercial Court Guide (hereafter "the Guide") 11 which contains important new guidance on foreign law.The same guidance is largely repeated (with one significant difference, as we shall see), in the Chancery Guide, updated in October 2022. 12n Brownlie II the Supreme Court held that the claimant, who was suing in the English courts under Egyptian law, could rely, to a limited extent, on the presumption of similarity between English and Egyptian law for the purpose of establishing that she had a real prospect of success.The importance of the case lies not so much in the actual decision as in a number of dicta in Lord Leggatt's judgment that have potentially farreaching implications.These dicta concern the presumption of similarity; the distinction between the presumption and the "default rule"; a seemingly novel "presumption of continuity" in foreign law; a willingness to take judicial notice of fundamental principles of a foreign legal system; and Lord Leggatt's wider contention that the "old notion" that foreign law could only be proved by expert evidence was outdated. 13ord Leggatt's desire to bring the law up to date was in harmony with views that had been expressed in a meeting of the Commercial Court Users Group ("CCUG") some six months earlier, in particular by Foxton J who.
advised that the Commercial Court had taken the view that there should be a greater consideration at the CMC [Case Management Conference] of the range of options open to the court under the CPR [Civil Procedure Rules] as to how to establish the content of foreign law to enable the court to direct the best approach.Those options ranged from direct submissions based on the foreign law legal materials to the more conventional approach of obtaining formal reports and having experts cross examined.Parties could also use this stage to consider whether it was really necessary to instruct an independent foreign expert if they already have an appropriately qualified lawyer retained. 14rd Leggatt's dicta aligned with the amendments to the Guide, which followed the proposals discussed in the earlier meeting.The three main innovations in the Guide are (1) that, although the contents of their reports are not agreed, the experts need not give evidence at trial or need not give evidence on all issues in dispute, with the advocates instead making submissions at trial by reference to the reports and foreign law materials filed; (2) that experts may in appropriate cases be limited to informing the court of the relevant statutory provisions, case law and principles of interpretation, leaving it to counsel to make submissions as to the relevant content of the foreign law including arguments as to how these should be applied to the facts of the case; and (3) that in some cases the court may take judicial notice of the sources of law in a foreign system or accept the agreement of the parties as to such sources, again with the advocates making submissions at trial as to the content of these sources, using material from their own research. 15All of these measures are ways to fulfil the judge's duty under CPR 35.1 to restrict expert evidence "to that which is reasonably required to resolve the proceedings", and in particular (according to Practice Direction 35.1) to restrict the use of oral expert evidence.
The remaining sections (B-F) of this article consider the issues raised by Brownlie II and the Guide in the following order: (B) the "old notion" regarding expert evidence of foreign law and whether it is outdated; (C) the presumptions of similarity and continuity; (D) judicial notice; (E) the division of labour between the expert witness, the advocate, and the judge.Finally, in section F, we address an important point which has been largely overlooked in the debate about the role of experts: proving the content of foreign law so that the English court can apply it to the case at hand is not the only role played by experts in foreign law.In many cases their role is to shed light on what a foreign court is in fact likely to do should some aspect of the dispute come before them; in other words, not the foreign law "in the books" but the foreign legal system "in action".Section F discusses the types of case where expert evidence is likely to remain vital, whatever might be done to reduce the centrality of foreign law experts in choice-of-law cases.

B. The "old notion" of expert evidence
Brownlie II does not challenge the orthodox view that issues of foreign law are questions of fact, albeit "of a peculiar kind", 16 but the changes to the Guide do seem to alter the proposition that the text of foreign law can only be placed before the court as part of a witness's evidence.
Lord Leggatt states in Brownlie II: it should not be assumed that the only alternative to relying on the presumption of similarity is necessarily to tender evidence from an expert in the foreign system of law.The old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. 17and it might be thought to call into question why expert witnesses are needed at all.Why not treat the issue as one of law to be addressed by lawyers on the basis of available foreign materials, and resolved by the judge like any question of law? 18 This view was emphatically rejected in a trilogy of cases in 1844-5,19 which all make the point that the text of foreign law cannot be safely interpreted without "the accumulated knowledge and ready associations" which a judge would bring to the interpretation of domestic law.The judge can, however, be assumed to possess "such a knowledge of the general art of reasoning, as will enable him, with the assistance of the Bar, to discover where fallacies are probably concealed" in an expert's interpretation of a foreign law. 20The judge will therefore examine the texts of the foreign law, not to interpret them directly, but to assess whether the expert has furnished a cogent line of reasoning based on those texts.
These judgments show considerable insight into both the nature of expert knowledge, as something acquired through immersion in the linguistic practices of a specialised community,21 and into the nature of legal reasoning as something which despite cultural differences is to some extent universal,22 as is inferential reasoning about evidence. 23They were, however, delivered in the context of litigation which raised particularly arcane questions of a nature unfamiliar to English lawyers.When the legal systems and concepts in question are more familiar to English judges, the degree to which judges can rely on their own legal skills may be greater, and the need for expert evidence correspondingly less.In MCC Proceeds v Bishopsgate Investment Trust,24 ("MCC") the Court of Appeal drew a contrast between cases where the law was in a foreign language and involved "principles and concepts which are unfamiliar to an English lawyer", and cases from English-speaking common law jurisdictions.In the latter the English judge was "entitled and indeed bound to bring that part of his qualifications to bear on the issue".The court, however, confined the judge's "legal input" to resolving differences of opinion between the expert witnesses. 25n Brownlie II, Lord Leggatt found it unnecessary to limit the judge's role in this way: Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law.In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant foreign law.On some occasions the text may require skilled exegesis of a kind which only a lawyer expert in the foreign system of law can provide.But in other cases it may be sufficient to know what the text says. 26e distinction drawn in MCC between common-law and other systems remains relevant in considering whether expert evidence can be dispensed with entirely.In the Commercial Court Users Group meeting, Flaux C said that it was "particularly in the context of common law jurisdictions" that calling an expert witness on each side could be "using a sledgehammer to crack a nut". 27imilarly, in one of the first cases where expert evidence was dispensed with in accordance with the Guide, Calver J took this course only in relation to Singaporean law, which English judges were "well used to reading, analysing and applying". 28Oral expert evidence remained necessary to address issues of Chinese and Thai law. 29s this case illustrates, in calling for greater flexibility in the way foreign law is determined the Guide is by no means suggesting that expert witnesses can be dispensed with entirely.What is stressed in this article is the importance of appreciating the wide range of circumstances in which questions of foreign law arise.In some circumstances the traditional approach is appropriate and seems to be working well.In others, it might be wise to put the sledgehammer aside and pick up a nutcracker.

C. The presumptions of similarity and continuity
Brownlie II was a case about a fatal road accident in Egypt.Egyptian law governed the defendant hotel operators' liability for the acts of the driver they employed, but the English courts were held to be the appropriate forum.It was clear from the reports of the parties' experts that far from being similar to English law, Egyptian law (a system strongly influenced by French law) approached the kind of claim involved in a very different way from the English courts. 30The experts took different views of complex issues about the relationship between contractual and tortious liability (and the different limitation periods applicable to them) which had no parallel in English law.Nevertheless, the Court of Appeal by a majority, and the Supreme Court unanimously, held that there was no basis for challenging the decision of the first instance judge that the presumption could be used to find that the claimant's claims had a real prospect of success, despite the claimant's failure to specify the rules or principles of Egyptian law upon which her claim relied.At this stage of the action it was sufficient to presume that any legal system was likely to impose some kind of liability, whether in tort, contract, or both, on the hotel company which employed the chauffeur who caused the accident. 31rnold LJ's dissenting judgment in the Court of Appeal drew on the scholarship of Fentiman 32 and Gray 33 to argue that it was unfair to allow a party who pleaded foreign law but failed to prove it to rely on the presumption of similarity to place the burden on their opponent to prove that foreign law was different from English law. 34Lord Leggatt countered by arguing that the presumption applied only in some cases and could fairly easily be displaced.
Lord Leggatt distinguished the presumption from the "default rule" which states that where neither party pleads foreign law, the court should apply English law.Lord Leggatt rightly considered it confusing to regard this as a presumption, since "it is not concerned with establishing the content of foreign law but treats English law as applicable in its own right where foreign law is not pleaded". 35By contrast, the presumption of similarity applies where foreign law is pleaded and enables the court to determine what it will treat as the likely content of foreign law.
Drawing on case law from a range of common-law jurisdictions, Lord Leggatt depicted the presumption of similarity as a flexible one which applies only when it is "reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matter in issue", 36 either for historical reasons, 37 or as a matter of what one of the old cases he cited called "abstract justice". 38These are circumstances where it does not need a special legal presumption to show that there are reasons to think that foreign law is likely to resemble English law, but it is difficult to see how either of them applied in Brownlie II.It was clear that the roots of Egyptian law lay in French rather than English law, and Egyptian law could well have satisfied the requirements of "abstract justice" by relying purely on vicarious liability for the driver who caused the fatal accident, and not on the direct tortious and contractual bases of liability on which Lady Brownlie also sought to rely.The explanation of how the presumption could help Lady Brownlie appears to be that when Lord Leggatt said that the presumption applied only where "it is a fair and reasonable assumption to make in the particular case" 39 he was referring not only to cases where it is a fair and reasonable inference, but also those where it is procedurally fair and reasonable to assume a state of affairs that has not been proved by evidence.One situation where this will apply is where whatever differences there may be between the relevant foreign laws and English law are considered unlikely to lead to a different result.In these circumstances, "pragmatic reasons" prevail over "abstract legal purity"; the presumption saves the trouble and expense of establishing what the foreign law actually is. 40Considerations of procedural fairness and reasonableness also applied in the circumstances of Brownlie II itself, where the claimant was merely making a preliminary application for permission to serve outside the jurisdiction.The presumption of similarity was adopted as a pragmatically useful way to allow the claimant to keep her legal options open prior to a detailed examination of Egyptian law at trial.It may seem an odd kind of presumption, as it is neither a plausible presumption of fact nor does it determine any question of law, but it does fit Roberts' definition of a "(true) legal presumption of fact": it is a rule of evidence which permits the factfinder to draw specified factual conclusions (foreign law being a question of fact) which "might not otherwise be warranted by the information available to the factfinder". 41In this case, the factual conclusion was about Lady Brownlie having a reasonable prospect of success, even though she would not be able to succeed at trial without producing evidence of the relevant Egyptian law. 42ord Leggatt stressed that the presumption of similarity does not alter the burden of proof. 43Instead it merely creates an evidential burdenthat is, the party who denies that the foreign law is the same as English law must produce some evidence to show that it is different.In doing so, the party could rely on the "presumption of continuity" to avoid having to prove that the relevant foreign legal text stated the law in force at the material date.
The presumption of continuity, or continuance, allows a court to infer that a state of affairs which existed at one point of time continues to exist at a later point.Phipson on Evidence explains that it is not a "true presumption", but rather "a type of ordinary reasoning which applies in circumstances of the utmost frequency and diversity". 44In this instance, ordinary reasoning suggests that if some proposition of law was true in the relevant jurisdiction in the fairly recent past, and there is no evidence that the law has changed, that proposition is probably still true now (or was true on some other relevant date)."When English courts are prepared in some cases to draw conclusions about the content of foreign law on such an indirect basis' as the presumption of similarity", it makes no sense to reject better, direct evidence when it is available just because it lacks the imprimatur of an expert witness'. 45By providing a way to rebut the presumption of similarity without calling expert evidence, the presumption of continuity helps to counter the argument that the presumption of similarity unfairly shifts the burden of proof.
The presumption of similarity can serve a purpose in the circumstances and with the limitations set out in Brownlie II but it should be treated with caution.Seeking to rely on it rather than providing and proving evidence of foreign law at trial as the claimant seemingly hoped to do is a risky strategy. 46By ordering that the claimant amend her case to plead the content of the Egyptian law on which she relied, 47 the Supreme Court rightly made clear that presumption of similarity cannot simply be used to plug the gaps in any deficient pleading of foreign law.

D. Judicial notice
The orthodox view is that, except for Scots and Northern Irish law in the Supreme Court, and colonial or commonwealth law in the Privy Council, foreign law cannot be judicially noticed. 48Lord Leggatt appeared to challenge that orthodoxy in Brownlie II when he said: "I think that an English court is entitled to take judicial notice of the fact that … the doctrine of 'non cumul' (des responsabilités contractuelle et délictuelle) is a basic principle of civil law". 49He claimed that Lord Goff had done the same in Henderson v Merrett Syndicates, 50 but Lord Goff was engaging in a comparative legal discussion as part of his reasoning on a point of law. 51In this context there is no need for judicial notice, which comes into play when the court makes a finding of fact on the basis of information that has not been put before it as evidence.
On the basis of the general principles governing judicial notice, it does not seem unreasonable to take account of foreign law in this way.In Scott v Attorney-General (Bahamas), 52 the Privy Council adopted the following formulation from the American evidence scholar Edmund Morgan: The party seeking judicial notice has the burden of convincing the judge that (a) the matter is so notorious as not to be the subject of dispute among reasonable men or (b) the matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy. 53rticularly with regard to codified or statute law, "sources of indisputable accuracy" may be accessible on the internet, 54 and even if a source such as a standard work on the French commercial law might be out of date, the presumption of continuity can lend it sufficient weight to allow judicial notice to be taken and to potentially rebut the presumption of similarity between English and French law.
Fentiman has argued that English courts do sometimes take judicial notice of foreign law, especially that of commonwealth jurisdictions, without saying that that is what they are doing. 55What at first sight seems his most striking example, the House of Lords' decision in Attorney-General of New Zealand v Ortiz, 56 is actually not one, as the crucial point that New Zealand judges would accept the same purposive approach to interpretation as the English courts was established by the trial judge's questioning of the experts on New Zealand law. 57In Morgan Grenfell & Co. Ltd. v SACE, the Court of Appeal expressed the "hope that the time may not be far off when it will be permissible for the English courts to take judicial notice of decisions of foreign courts". 58In Brownlie II, Lord Leggatt seems to have gone out of his way to make a reference to judicial notice that was not really necessary, as the non cumul doctrine was discussed in the experts' reports and the experts agreed that it was a tenet of Egyptian law.
It is presumably his remarks that have emboldened the authors of the Guide to embrace an extended role for judicial notice, although the Guide only contemplates judicial notice being taken of "the nature and importance of the sources of foreign law". 59The Guide does not mention judicial notice being taken of the content of the sources themselves, but rather states that the advocates may make submissions as to this content, "providing the source materials from their own researches". 60nother alternative envisaged by the Guide is for the parties to agree on the nature and importance of the sources of foreign law again with submissions as to content being made by the advocates.Interestingly, the Chancery Guide 2022, which in most respects echoes the provisions about foreign law in the Guide,   refers only to agreement between the parties and omits any mention of judicial notice. 61f the sources are "readily accessible" and "of indisputable accuracy", then following Scott there is no apparent reason why the Court should not take judicial notice of them.Indeed this seems much the simplest way to transmute the legal texts into items of evidence.An alternative would be for a lawyer acting in the case to swear a witness statement or affidavit to which the legal text would be exhibited. 62rguably, however, the possibility of agreement between the parties, on which the Chancery Guide focuses, renders judicial notice redundant.If the nature and sources of the foreign system are uncontroversial the parties should be able to agree on them, and if they are in dispute judicial notice is inappropriate.Following the dicta in Brownlie II and the changes in the Guide and the Chancery Guide the scope for and use of judicial notice remains unclear.It may be in light of the other alternatives it is little used but confirmation of its applicability would be useful.

E. The expert and the advocate
Assuming that some expert evidence is needed in a given case, we turn now to the role of that expert, and what is said about that role in the Guide and Brownlie II.
In MCC, the Court of Appeal defined the function of the expert as: (1) to inform the court of the relevant contents of the foreign law; identifying statutes or other legislation and explaining where necessary the foreign court's approach to their construction; (2) to identify judgments or other authorities, explaining what status they have as sources of the foreign law; and (3) where there is no authority directly in point, to assist the English judge in making a finding as to what the foreign court's ruling would be if the issue was to arise for decision there.

61
The Business and Property Courts of England Wales: Chancery Guide 2022 para 9.48(c).

62
The Guide (para.F8.10) envisages this procedure, or "for the opinion relied on to be that of an appropriately qualified lawyer who acts for the party" but only in the context of interim applications.In this context it is important that this approach is used carefully to ensure that an advisor is not giving evidence which should more properly be given by an independent expert, and further does not amount to an advisor, "acting as counsel and witness in the same case" as counsel was criticised for doing in R v Secretary of State for India, ex parte Ezekiel [1941] 2 KB 169, 175.The exact nature of the barrister's evidence in that case is not recorded, but it was noted to be proving "certain aspects of Indian law", presumably giving expert opinion evidence, in a case where he was an advocate, rather than simply putting the text of an Indian law into evidence.The distinct roles of advocate and expert and the continued importance of the role of expert are discussed further below.
The first and second of these require the exercise of judgment in deciding what the issues are and what statutes or precedents are relevant to them, but it is only the third which gives much scope in practice for opinion evidence, which is the basic role of the expert witness. 63he Guide suggests that all of these functions could be dispensed with to some extent.It is particularly interesting that the third aspect, that of helping the judge to decide what the foreign court's ruling would be, is one which the Guide suggests can be largely taken over by advocates in some cases.The Guide states at H3.3(b) that the judge may direct an exchange of reports: on the basis that the experts will not give evidence at trial although their evidence is not agreed, or do so only on some of the matters covered by their reports although their evidence on other matters is also not agreed, with the advocates making submissions at trial by reference to the reports and foreign law materials filed.
It also identifies two other approaches which "may be more appropriate when the foreign law issues relate to a common law system or a system of law with which the Court has familiarity from other cases" (H3.4(d)).One (H3.3(c)) is to: limit the expert evidence to identification of the relevant sources of foreign law, and of any legal principles as to the interpretation and status of those sources, with the advocates making submissions at trial as to the relevant content of foreign law by reference to the sources thus identified.
The other option is for the court to either take judicial notice or accept the parties' agreement as to the nature and importance of sources of the foreign law, as discussed in section D above, with advocates making submissions at trial with reference to these sources.
All of these options are ways for the court to fulfil its duty to restrict expert evidence "to that which is reasonably required to resolve the proceedings" (CPR 35.1).As Andrew Baker J emphasised in BB Energy v Al-Amoudi, the parties need to obtain leave to call the evidence under r 35.4,so that there can be "either an agreed or directed-by-the-court review of what expert evidence [is] required, from what experts, answering what questions". 64hile a degree of flexibility regarding the need for expert evidence will undoubtedly be useful for case management purposes, the proposal that an advocate could perform what MCC identified as the most distinctive role of the expert that of giving opinion evidence about what a foreign court would decideraises a difficult issue.In MCC, the Court of Appeal stated that the purpose of opinion evidence about what a foreign court would decide.
is to predict the likely decision of a foreign court, not to press upon the English judge the witness's personal views as to what the foreign law might be. 65is develops Mustill LJ's observation in G & H Montage GmbH v Irvani that there were "many fields of law in which the books provide no direct answer, and where the skill of the lawyer lies precisely in predicting what answer should be given". 66This formulation captures the ambiguity of the expert's "prediction".On the one hand it is a normative judgment about what the answer should be according to the law of the foreign jurisdiction.As Scott LJ puts in a phrase that is often quotedsometimes alongside MCC's "predictive" account of the expert's role 67 the expert should convey to the court "the meaning and effect which a court of the foreign country would attribute to [a legal rule or document], if it applied correctly the law of that country to the questions under investigation by the English court". 68On the other hand, the expert's role is not to express their view about what the foreign jurisdiction's counterpart of Dworkin's Hercules 69 would decide.As Simon J put it in Yukos v Rosneft, if the expert invites the judge "to make findings which [go] beyond the present state of Russian law and to anticipate a rational development of it, his invitation must be declined". 70The expert should use the "skill of a lawyer", in Mustill LJ's words, to "predict" which among the various legitimate interpretations of the foreign law would actually commend itself to a court. 71This requires something that is common to numerous fields of expertise: the expert must be so thoroughly immersed in the culture of their field that they understand not simply what the texts within that field could be interpreted to mean, but the degree of credibility that will be accorded to different texts and interpretations by other members of the expert community. 72That kind of predictive skill is unlikely to be acquired merely by reading the texts of a foreign system in translation. 73hat kind of knowledge or experience is required to qualify as an expert in foreign law is not entirely clear.What is clear from the Civil Evidence Act 1972, s 4(1) is that it is not essential for an expert to have practiced law in the foreign system, or be qualified to do so.Hodgkinson and James assert that "Where a witness derives their knowledge of foreign law purely from a course of academic study, they are not competent as an expert". 74The two old cases they cite, 75 however, establish only that having studied a country's law as part of a university course in a different country is insufficient.Phipson discusses the "wide scope" of "the range of experts whose testimony the courts will accept in civil cases". 76The expert will need to state their qualifications in their report pursuant to CPR PD35 3.2 and these can be assessed by the court and the parties.To make a prediction of what foreign judges are likely to decide in a case where the law is unclear undoubtedly requires a depth of knowledge and experience beyond that which would be acquired from a degree-level course; but such predictions are not required in every case.It has been rightly held by the Privy Council that "not only the general nature, but also the precise character of the question upon which expert evidence is required, have to be taken into account when deciding whether the qualifications of a person entitle him to be regarded as a competent expert". 77In that case the evidence of a bank official who was not a lawyer was admissible as to the status of certain French banknotes as legal tender. 78Some questions of foreign law could undoubtedly be answered by a non-practitioner with a degree level qualificationbut then they might also be adequately addressed by an English lawyer who had consulted relevant textbooks and primary sources.
The changes outlined in the Guide seem to be based in part on the statement that the application of the foreign law to the facts is a matter for argument not evidence. 79This is a plausible view where the foreign law is clear and the question is how the facts found by the English court should be classified so as to determine the applicability of a foreign legal rule. 80 In Collins and Evans" terms, "primary source knowledge" is not the same as expertise (Ibid, 22-3).where the foreign law is unclear so that its application to the facts involves novel questions of interpretation; and also in cases where the "law in the books" may seem clear, but it is necessary to consider whether a foreign court would in practice apply the supposedly clear law to the facts of the case.
When it comes to the interpretation of a foreign country's statutes or code, it is permissible to refer to considerations of "abstract justice" or commercial utility in determining what a foreign court "correctly" applying its own law would be likely to decide.A striking example, though one from a Scottish (and so for present purposes "foreign") court, is Ted Jacob Engineering Group Inc v Morrison. 81The Inner House of the Court of Session was faced with two expert interpretations of the UAE Commercial Code, one of which would allow an alleged fraudster to escape liability by hiding behind a Scottish partnership between two Cypriot companies of his own creation, and one which would pierce the corporate veil and hold him to account.The court found it "obvious that any legal system that has regard to commercial practicalities must be capable in appropriate circumstances of holding those individuals responsible for the acts of the artificial person".What was "at issue [was] not the detailed provisions of a statute or code, but fundamental principles of ethical behaviour which must be recognised by every legal system". 82The role of the expert was not so much to provide the court with evidence of "primary fact" (on which an appellate court would be reluctant to interfere with the judge's findings) but rather to draw inferences from the facts about foreign legislation, and in particular to provide the contextual understanding that would help the court to apply a "purposive and contextual approach to construction … at least in the absence of evidence that a particular legal system refuses to follow such an approach". 83n addressing a complex interpretive issue such as this, the role of the expert is virtually indistinguishable from that of an advocate arguing for a purposive and morally defensible interpretation of a statute; but it requires truly expert knowledge both of nuances of the foreign language 84 and of the legal and commercial context in which a particular legal provision operates.Usually we would expect expert witnesses to be better equipped for this role than advocates, but in some cases, an advocate may have the appropriate expertise.
A recent example is Re Smith, 85 which involved a difficult question about the law of trusts in Jersey.The sole expert was a Jersey advocate who was also a member of the English bar, and there is no reason why she could not have presented the same argument as an advocate as she did as an expert.This appears to be the kind of case where the Guide contemplates that the court could take

Journal of Private International Law
judicial notice of the nature and sources of Jersey law and allow the advocates to make submissions based on their own researches.Although Jersey is a common law jurisdiction, the difficulty of the case arose from the evidence that land law in Jersey is not based on common law, but rather on local customary law with strong civilian influences.If the same individual was not conveniently able to play the roles of both expert and advocate, it would make good sense, as the Guide also contemplates, for the expert report to set out the relevant statutes, legal methodology and case law, and the advocate to use it as the basis for an argument as to how the court should apply Jersey law to the facts of the case.One advantage of this would be that the other party could make their own submissions on the basis of the same legal materials, without needing either to cross-examine the expert or call an expert of their own.
In Smith, Foxton J quoted at length from Simon J's judgment in Yukos Capital v Rosneft, and adopted the view quoted above that he must decline the invitation to anticipate what might be a rational development of Jersey law. 86This distinction between prediction and anticipating a creative development is not easy to draw, as any decision in a "developing area" is likely to involve some "development" of the law.At all events, Foxton J was not prepared to anticipate a legal development which the Jersey courts had recognised as creating significant difficulties and had said was best left to legislation. 87

F. The continuing importance of oral expert evidence
Under this heading we wish to make two points.First, in cases which raise intricate doctrinal questions about a foreign legal system, it is likely that judges will continue to value the traditional tools of oral evidence and cross-examination as aids to deciding which interpretation of the law to accept.It is beyond the scope of this article to discuss in detail the various methods by which expert evidence may be presented before the courts, including the use of a single joint expert and hearing the experts' evidence concurrently (CPR PD35.7 and 11), this is at the court's discretion in appropriate circumstances, our emphasis is on the continued importance of oral expert evidence in the form appropriate to a given case but in the relatively complex cases in question in this article we consider the traditional method of examining expert evidence will continue to be important and effective. 88Secondly, there is an important class of case where the expert's role is not to advise the court what would be the "correct" interpretation of law in the foreign jurisdiction, but rather what a foreign court would be likely to do in 86 Ibid [530].
87 Ibid [530].88 G Edmond, A Ferguson and T Ward, "Assessing Concurrent Expert Evidence", (2018) 37 (3) Civil Justice Quarterly 344 gives more detail on the appropriateness of the use of concurrent expert evidence and its limitations.reality if a particular set of facts came before it.In these cases, expert evidence is likely to remain indispensable.
A recent case illustrating the first point is Emerald Pasture Designated Activity Co v Cassini (SAS). 89This case involved a loan agreement between the parties that was subject to English law and a defendant company which was going through a particular type of insolvency proceedings in France, namely a "sauvegarde".The defendant's argument was, in essence, that the sauvegarde extinguished any obligation under a "non-ongoing" contract, including the obligation on which the claimant relied, which required the defendant to provide certain information.HHJ Kramer (sitting as a High Court judge) was clear: that it is not my task to act as a French judge, analysing and interpreting the French law and how it ought to be developed for myself.My role is limited to finding as a fact what is the French law on the enforceability of the information provision in this contract based on the expert evidence that has been placed before me, which, for practical purposes, is a question of deciding between the two of them who is likely to be correct. 90e judge heard some four days of expert testimony and closely questioned the experts as well as allowing the usual cross examination.Interestingly, he acknowledged that one expert, who gave evidence in person, "was in a position to take visual clues as to whether I was taking in what he was saying and offer to give explanations", giving him an advantage over the opposing expert who testified by video link. 91HHJ Kramer's judgment contains much detailed discussion of the coherence and plausibility of the experts' legal arguments, but it was significant that he found the claimant's expert more "even handed" than that of defendant's expert, who gave the impression of having "taken a narrow approach to this case, starting with the proposition that non-ongoing contracts do not survive safeguarding and then looking for evidence to back it up". 92This highlights an important difference between the expert and the advocate: under CPR 35.3 the former has the duty to be impartial so as to assist the court, and their evidence is more likely to be accepted if they appear to have performed this duty well.This both exerts a pressure on the experts to converge on reasonably balanced views, and affords a means for the judge to identify which expert appears more impartial and therefore more credible.
In reviewing HHJ Kramer's judgment, the Court of Appeal reaffirmed the view that although findings of foreign law are treated as findings of fact, they are treated differently on appeal to standard findings of fact; the appellate court could consider the expert evidence anew and form its own conclusions, especially where they had been provided with full particulars of the expert evidence. 93The Court, however, rejected the argument that the interpretation of French law adopted by HHJ Kramer was illogical.Snowden LJ also rejected criticism of the judge's interventions in cross-examination, observing that in "a situation involving legal concepts and the need to come to grips with foreign legal materials, including decisions of foreign courts, a judge might naturally and legitimately engage more actively with the expert legal witnesses and counsel in the course of cross-examination". 94This recalls an observation by David Foxton, now Foxton J, that the cross-examination of a foreign law expert is more like "the Socratic dialogue between bar and bench when making legal submissions" than the usual cross-examination of a witness of fact or technical expert. 95Such "Socratic dialogue" is appropriate because the judge and the advocates are legal experts, not because the expert witness is akin to an advocate.
In this case what at first blush looked to be a reasonably straightforward assessment of quite a narrow point of French law was in fact an area in which French law was uncertain and where detailed analysis of the expert testimony was necessary.Cross-examination and judicial examination of the witnesses served to draw seeming inconsistencies and weaknesses in the defendant's expert's testimony which would not necessarily have been apparent on the documentation or arguably from counsel's submissions.In such a case, the use of oral expert evidence and the testing of an expert's opinion on the application of the law to the facts of the case can be crucially important.
We saw in section E how expert evidence in the above cases can be conceptualised as making a kind of prediction as to what a foreign court would decide; but a quite different kind of prediction is involved in cases where the court is concerned with the likelihood or risk that a foreign court actually will behave in a certain way if the English court takes a certain course of action.This can arise in a range of situations, including for example family law cases where the question is whether if one parent were permitted take a child to their country of origin, and was then unwilling to bring the child back, a court in the country concerned would ensure the child's return. 96In commercial cases the issue may be whether a foreign court would provide an effective remedy for the damage a party claims to have suffered, 97 or in some cases, the risk that a foreign court will act in some way  contrary to the rule of law.An example of the latter is Deripaska v Cherney, 98 where the Court of Appeal concluded that, although Russia was the natural forum, there was "cogent evidence" that there was a real risk that the defendant would not get a fair trial in Russia.Factors relevant were the greater risk of assassination in Russia, the potential for unfounded criminal prosecution and overall that there was "a significant risk that Mr Cherney will not obtain in Russia a trial unaffected by improper interference by State actors and that substantial justice may not be done". 99The expert evidence in this case focused on the realities of practice in Russian courts, including the Russian government's involvement and influence and the position of potential enemies of the State (or enemies of friends of the State) rather than the contents of Russian law itself. 100For example: [T]here was evidence before the judge … that tended to support the conclusion that the criminal justice system has been used, and from time to time is still used, as an instrument of government policy, a conclusion that was further supported by the writings of an acknowledged expert on the Russian judicial system, Professor Kathryn Hendley.Even Mr. Deripaska's expert, Professor Paul Stephan, cast a degree of doubt on the integrity of the criminal justice system when he stated that the inadequacies in the judicial system were limited to the courts of general jurisdiction rather than the arbitrazh [commercial] courts. 101en though a good deal of the evidence was hearsay in the form of academic writings and court reports, it is difficult to envisage that English judges would be willing to reach a decision of this sensitive nature without a discussion of the experts' reports and oral testimony in the forum of a court to enable them to assess the weight of the evidence.
The same is true of some cases where the dispute is about the correct interpretation of foreign law.For example PJSC Tatneft v Bogolubov 102 involved a complex discussion of Russian law to determine whether a claim for fraud was statute barred, in particular on the point of what degree of knowledge on the prospective claimant's part was necessary to start time running for limitation purposes.One noteworthy point in the judgment is the judge's observation that counsel's closing submissions did not necessarily reflect the claimant's expert's evidence, in fact over-stating what had been said in cross examination. 103The judge closely examined what was said in cross-examination and also pointed out that the oral evidence of the claimant's expert appeared "to be contrary to the position that he has taken in his own reports". 104 between the written and oral evidence, and between what the witness was prepared to say under cross-examination and what counsel presumably wanted him to say, were important in assessing the credibility of the expert evidence and thereby resolving a complex dispute as to the correct interpretation of Russian law.While cross-examination is not a perfect science, when coupled with active judicial involvement in questioning the experts it assists the judge in testing the evidence comprehensively and understanding the nuances of the argument in order to reach a robust conclusion.
A final case worth highlighting on the consideration of Russian law is PJSC VTB Bank v Laptev. 105This case relates to whether the claimant could petition for the bankruptcy of the defendant in the English courts when he had already been declared bankrupt in Russia.ICC Judge Burton determined that whether a creditor could take additional enforcement action outside the Russian bankruptcy proceedings was a matter of substantive Russian law, which was the lex causae that the English court was required to apply. 106he case is a good example of the experts playing the third role identified in the MCC case and "predicting" what a foreign court would decide.Both experts agreed that interpreting insolvency law the Russian courts would "take a teleological approach and apply public policy considerations" but they differed as to how the court would be likely to assess the public policy issues. 107The defendants' expert was confident that the Russian courts would not "open Pandora's box" by allowing that in any circumstances the creditors of someone adjudicated bankrupt in Russia could commence separate bankruptcy proceedings in another jurisdiction: "In Russia, it is difficult to be 100% sure about anything, especially about the judicial minds, but I do not think that it is possible". 108The claimant's expert thought that in circumstances where the petitioner was acting "altruistically" in the interests of other creditors, the public policy argument for allowing them to do so would prevail.As the judge remarked, in the absence of any known Russian decision on the precise issue, it fell to her to decide which expert's evidence she preferred. 109er preference for the defendant's expert stemmed from that expert's more forensic analysis of existing decisions which the claimant's expert did not consider relevant: I find his argument compelling, well-researched by reference to comparative domestic decisions and preferable to the opinion of Ms Knutova who dismissed the relevance of domestic decisions and appeared less open to considering the merits of arguments which conflicted with the opinion set out in her written report.The reasons given by ICC Judge Burton for preferring the defendant's expert's evidence are in some ways similar to those for preferring one advocate's argument to another: the cogency of his argument and the weight of (non-binding) Russian case law he was able to cite.At the same time, however, it was a judgment as to the greater trustworthiness of Dr Gerbutov as an expert who "appeared fully to understand his duty to assist the court by providing his objective, unbiased opinion". 111This reliance on the expert as a member of the Russian legal community who can offer an impartial assessment of how a Russian judge can plausibly be expected to view the case makes the expert's role very different from that of an advocate.
Cases like this do not bear out the statement at 3.4 of the Guide that the application of foreign law to the facts of the case is a matter for argument not evidence.Where the relevant issue of law has not yet been determined in the foreign jurisdiction, the prediction of how a foreign court would decide the point can very much be a matter for expert judgment, not simply argument.This should be borne in mind by the Judge and the parties when considering the treatment of expert evidence in a case in line with the factors provided in the Guide.

G. Conclusion
The authors broadly welcome the recent evolution in the treatment of expert evidence in Civil proceedings under the Guide and Brownlie II.The changes seem largely sensible in an area which has remained largely unchanged for so long, wedded to the "old notion" that expert evidence is needed in every case and ripe for development.The changes allow for arguably greater judicial activism and an acknowledgement of the legal expertise that is already present within the legal representatives and judiciary of any given case.It should give rise to the intended proportionate and flexible approach to the determination of issues of foreign law.A caveat is that this flexibility places a greater responsibility on the parties and the Judge to consider the issues more thoroughly at an earlier stage to ensure that the "right" approach is being taken.One reservation we have about the decision in Brownlie II is that in a case where the claimant's legal team had not done all they should have done to clarify the issues, the presumption of similarity was perhaps stretched to its limit to allow them to retrieve their position at a later stage.
While welcoming the flexibility introduced by Brownlie II and the Guide, we have also argued for the continuing value of expert evidence, delivered orally and subject to cross examination.There are cases where legal submissions can perform the function traditionally assigned to expert evidence but there are also cases where the role of the expert, and judicial assessment of the credibility and trustworthiness of the expert as a witness, will remain vital.
It is arguably the similarity of the expert witness's expertise to that of the parties' lawyers and potentially the judge that makes these suggestions possible, 15 Guide (n 11), H3.3(b)-(d).16 Parkasho v Singh [1968] P 233, 250; Dicey Morris and Collins (n 2), para 3-010.