Section One: Applying the foreign law:
Is the choice of law rule a mandatory rule that the court would have to apply in the case regardless of what the parties to the case want??
Subsection One: The choice of law rule status:
The Egyptian courts so far have not yet ruled on the applicability of the Egyptian choice of rules despite being codified in several codes
There is a disagreement among two main Egyptian jurists:
1) Claims that the Egyptian choice of rules are not binding on the Egyptian court because foreign law is treated as fact under the Egyptian law
2) Claims that the Egyptian choice of law rules are mandatory rules since that foreign law is treated as law within the Egyptian legal system.
In the Egyptian civil code, all rules are considered mandatory unless otherwise noted.
Should the choice of law rule be facultative or should it be a mandatory rule??
1) The facultative approach for the forum’s choice of law rules:
Meaning that the choice of law rules must be pleaded before the court or else the court will apply forum’s law to resolve all the choice of law issues before the court.
This approach has been criticized with these points:
- Will make the forum’s law the only applicable law in the proceedings unless a party to the proceedings invokes the choice of law rule
- The parties will avoid the difficult task of proving foreign law which will allow them to save their efforts and resources towards resolving the substantive aspects of the case.
The defaults of this approach:
- Allows the court to mix between the choice of law rule’s nature as a rule of law and the burden of proving foreign law
- If the court accepts a request for applying the facultative rule, then the party who wishes to win the case will bear the burden of proving the law that supports his claim.
- In this, case, the court will apply forum’s law although that forum’s law is not the applicable law according to the forum’s choice of law rule. Therefore, if the court could not apply the forum’s law according to the forum’s choice of law rules, it will apply forum’s law because it does not have any legal obligation to apply foreign law.
2) The mandatory approach for the choice of law rules:
- By making the choice of law rule mandatory, we are getting rid of the forum’s law bias through allowing the application of foreign law. The court would have a duty to apply foreign law if the forum’s choice of law rules orders the court to do so.
- The choice of law rule as a rule of law possesses the same qualities of any other legal rule, therefore, we should assume that is has a mandatory character unless otherwise stated.
- The mandatory character of the choice of law rule would allow the court to apply foreign law, in this case, the local parties will not have an advantage over non-local parties because all claims will be governed by their proper law whether it was foreign law or forum’s law.
- Applying foreign law through a mandatory rule is the best solution for a party that has no alternative but to build its case on the application of the foreign law instead of forcing that party to argue his claims under the forum’s law that might result in dismissing its case for no fault of its own.
- A mandatory choice of law rule will help us avoid limping legal relationships that are created according to a foreign law because the court will be obliged to apply foreign law instead of ignoring it.
- By making the choice of law rule mandatory, we would avoid inventing solutions such as the suggestion to apply the effects of the foreign law but not the foreign law itself as a means to overcome the illogical results that a facultative choice of law rule would generate.
Subsection two: Judicial notice of the foreign law:
Under Egyptian law, the courts distinguish between the mandatory character of the foreign law and the burden of proving the content of the foreign law.
It does not always have to recognize the foreign law unless pleaded by one of the parties.
If the invoking party succeeds, then the Egyptian judge would have to verify the foreign law’s content.
The Egyptian Cassation Court affirmed that when the Egyptian judge is aware of the foreign law, without the need of the parties’ efforts, he must apply that foreign law.
Which approach suits the choice of law rule??
1) The fact approach:
Two main arguments to this approach:
- a. That the foreign legal rule loses its mandatory character once it is applied beyond its national borders and therefore should be treated as a fact.
- b. That the judge cannot be asked to apply the foreign law ex officio because this requires the knowledge of all foreign laws in existence, which is impossible. Therefore, treating foreign law as a fact, releases the judge from such a burden and leaves the matter to the litigants instead of bringing an expert witness who will determine the foreign law’s content for the court.
2) Law approach:
Three arguments to this approach:
- a. The failure to prove foreign law should lead to the dismissal of the case because there is no basis for the plaintiff’s claim. Courts tend to apply forum’s law as a substitute for the unproved foreign law. Therefore, it is necessary for us to characterize foreign law as a law not as a fact so that the court could reach a decision for the choice of law issue.
- b. The foreign law’s character as a set of binding rules upon the parties to the proceedings should be respected by foreign courts just as the forum’s law character as a set of binding rules upon the parties to the proceedings is respected by the forum’s courts. Therefore, the judge should not be allowed to apply foreign law selectively nor to avoid applying foreign law through devices like “Renvoi”.
- c. If the forum’s choice of law rule mandates the application of the foreign law then that is an order made by the national legislator to the sitting judge. This order can not be disregarded simple because the applicable law is a foreign law.
- d. There are instances where we must apply foreign law even if it was treated as fact. Courts applied foreign law to determine choice of law questions associated with the ownership of foreign-based assets.
Sevigne’s view is that foreign law is law but the forum’s judge is not expected to know unless its contents were brought to his attention by the parties to the lawsuit.
Nevertheless, Sevigne believed that the application of foreign law is within the very essence of the judge’s role. It is the judge’s duty to apply the law to the facts of the case as proved by the parties during the proceedings.
Subsection Three: Proof of foreign law:
How should the burden of proof be imposed upon the parties??
1) Burden of proof:
Foreign law is treated procedurally in Egypt as a fact that must be proved before the court. The party who invokes a right or a defense based on a foreign law bears the burden of proof.
If the Egyptian judge can, through his own means verify the foreign law, he must do so.
Once the party succeeds in doing proving the foreign law, then the court will apply the foreign law to the case.
Afterwards, the burden of proof shifts to the defendant who if he wishes must use a defense that has a basis in that very same foreign law not by using defenses based on the forum’s law unless it was the forum’s public policy or fraud upon law.
2) Means of proof:
If the parties can not prove their case through the appropriate means of proof they will lose the case as a result.
In Egypt, there is not rule for proving foreign law under the Egyptian law so presumably, the judge is free to accept whatever means of proof he deems to be adequate.
The Egyptian judge is bound to try to search the various sources of foreign law with the assistance of the litigants including the prevailing doctrine for the foreign law in question.
3) Failure to prove foreign law:
It is not acceptable to dismiss a case of the invoking party failed to prove the foreign law.
Usually, the courts will apply forum’s law in place of the foreign law.
This is different from when the invoking party fails to convince the court of his claim, in this case, it managed to prove the foreign law but what it has proved does not support its claim. In this case, the court will dismiss the case without the need for substituting the foreign law with forum’s law. The court will dismiss the case because the plaintiff’s claim has no legal basis under the foreign law.
Subsection Four: Appellate review of foreign law:
Should the appellate court exercise control over the findings of the foreign law??
The Egyptian Cassation Court reviews the application of foreign law and considers the misapplication of foreign law as an error equivalent to the erroneous application of Egyptian law.
1) Arguments for exercising appellate review over foreign law’s application:
It is crucial to apply the foreign law as it is applied within the foreign legal system that created it to ensure such uniformity.
This can be done if we had an appellate review over the application of foreign law. The appellate review will ensure that all courts apply the same foreign law in a consistent manner.
2) Arguments against exercising appellate review over foreign law’s application:
An opponent refusing this argument is because:
- That since most jurisdictions have decided to treat foreign law as a fact, it follows that foreign law escapes any form of appellate review because facts are not subject to judicial review during the appeal process before a court of law.
- This will consume a considerable amount of any appellate court resources because the court would have to use foreign law materials and teach itself the foreign law so that it could exercise appellate review over the application of foreign law.
- We might not be able to apply foreign law properly because we are seeking to control the application of a foreign law. There will always be a possibility for misinterpretation of that foreign law by the appellate court which makes the appellate review over the foreign law meaningless.
“Denautration” — “gross misinterpretation” presumes that the foreign law’s text is presented to the court through a copy of the foreign law code or a written statement that has been duly produced during the proceedings of the case.
This is a very useful device, because:
- It treats foreign law as a fact which is the current situation under most jurisdictions.
- It provides a suitable amount of appellate review over the judge’s application and interpretation of foreign law’s text by restraining his findings to whatever foreign law rules that has been established in the foreign law code before the court.
- It gives the judge some discretion when he interprets the foreign law’s text because it only operates when he grossly misinterprets the foreign law’s text not when he commits an error that could be attributed to the judge’s unfamiliarity with foreign law in general.
The ONLY fault to “Denautration” is its contingency upon the presentation of a document such as code that contains foreign law’s text so other means of proof can not be accommodated and it is not a sufficient substitute for exercising appellate review over the application of foreign law by the forum’s courts.
Section Two: The corrective devices:
Subsection One: Fraud upon law:
This can be classified as a defense that would allow the judge to disregard the applicable foreign law so as to prevent the parties from committing fraud.
Countess Bauffermont was a Belgian citizen who married a French prince and later on she acquired the French citizenship and moved to France to live with her husband.
After several years of marriage, she sought a divorce which was prohibited at that time in Belgian and French law so in order to curtail that prohibition, she acquired the Bavarian citizenship.
Afterwards, she filed for divorce in Bavaria under Bavarian law which did not prohibit divorce.
Several days after acquiring the divorce judgment, she married a Romanian prince and moved back to France with her new husband.
Her first husband filed a lawsuit to annul her second marriage because it was the result of a scheme to circumvent the French law’s prohibition against divorce.
The divorce was annulled by the French Cassation Court.
Fraud upon law has two elements:
Subjective element and Objective element
To manipulate the choice of law rule by creating a voluntary change in the connecting factor to create an artificial choice of law rule situation that did not exist prior to the above change. (The intention to commit fraud)
Any act through which a party tries to manipulate the selection of the law as a part of fraudulent scheme to harm others can be met with the fraud upon law defense.
The fraud upon law is not applicable to all choice of law situations. This defense does not operate when the parties breach the applicable law while attempting to manipulate the connecting factor.
The fraud upon law is not directed against the content of the foreign law but against the fraudulent use of the foreign law.