ABSTRACT

Knowledge is sea which is deep and vast similarly knowledge is something like a sea which
is deep and vast an no one have knowledge of everything. Similarly in case of Private
international law the judges do not have knowledge of law of other jurisdiction and it is not
necessary they should have the knowledge of every country. Therefore to overcome this
burden the judges asked for expert opinion as many time some law which is not written or
which is not codified in that case the expert have to be a person who is well versed with the
background of that place, who has knowledge of that law or the customary law in that area
and also aware about the interpretation done by the judges in that law.

It is not necessary that the judges asked for expert opinion the law or attorney are also not
aware about the foreign law of other country and therefore they need to take help from expert
who can tell them the law of that nation. The question is the admissibility of the expert
opinion whether the court have to admit the opinion of expert or the court has a discretion
power to reject or accept expert opinion.

Now to decide who can be expert whose opinion can be considered in the is the main
question in this research paper where the court have to decide whether the person who is
giving the opinion is eligible to be an expert in the given situation or not as there is no
specific definition given under any law which decide who is an expert. Even if a person who
is has knowledge about any law they are also considered as a expert.

Further the researcher is going to discuss about the pron and cons of having an expert opinion
in the court and what impact is given on judges as well as on party to that case. The paper is
divided in four part where the researcher is going to discuss about the role of expert opinion,
the reliability of expert opinion and the admissibility of expert opinion related to the lex fori
under International law.

SYNOPSIS

1. Title of Research paper:-

 Expert opinion in foreign law and its admissibility by lex fori in Private International
Law
2. Aim of the study
The aims of the research paper are:-
i) To know the role of expert opinion in foreign law
ii) How the court accept the opinion of the expert.
iii) Whether the expert opinion is admissible or not.
3. Scope of the study:-
The scope of the research paper is limited to Private International Law.
4. Significance:-
The significant of this research paper is to know how expert opinion impact on the
court decision.
5. Research questions:-
Whether expert opinion has reliability?
Whether court is bound by the expert opinion?
6. Research methodology:-
The researcher is going to do doctrinal research on the basis of article, judgment, and
Laws.
7. Literature review:-
1) Hausmann, Rainer Pleading and Proof of Foreign Law - a Comparative Analysis The
European Legal Forum, 2008
In this article the author has talk about the role of expert opinion while deciding the
case on foreign judgment. And how the judges relied on the expert opinion further the
admissibility of expert opinion is discussed in this article.
2) Otto C. Sommerich, Benjamin Busch, Expert Witness and the Proof of Foreign Law,
Cornell Law Review, Volume 38 Issue 2Winter 1953
In this article the author discussed that it is not possible that everyone have knowledge
related to the law of different jurisdiction, therefore it is necessary to appoint expert
so there cannot be any miscarriage of justice and further they have discussed about the
two method through court can rely first is the expert opinion and second is the there
own research work.
3) Matthew W. Swinehart, Reliability of Expert Evidence in International Disputes,
Michigan Journal of International Law, Volume 38 Issue 2, 2017
In this article the history of expert opinion is discussed where earlier judicial note was
taken if there is conflict between foreign law and the concept is not clear. But as the
time changes the conflict between has been increase and due to which the law has also
 developed therefore it is not possible for the judges to have knowledge of every law
therefore the best approach to appoint expert.

CHAPTER 1:- INTRODUCTION

“The foreign law and its application, like any other results of knowledge and experience in
matters of which no knowledge is imputed to the Judge, must be proved as facts are proved,
by appropriate evidence”1

It is impractical to think that court has knowledge of law apart from law of his forum no one
can have knowledge of law of other court or other country court. Every country has its
different law and therefore it is difficult to know each and every law in the world. But
sometime such situation arises where judge of any court have to come across with foreign
law. It is not possible for everyone to know all the laws in detail or the reason behind the law
was enacted or the intention of the legislation. Therefore in all these scenario judges have to
be sure that due their lack of knowledge of law or due to they are not able to understand the
law the justice must be done. To overcome such situation the expert opinion is the best way
to deal with it, there is second way also where the judges can do research on the moot point
and can come to a conclusion.

Earlier expert opinion was taken in rare cases as there were judicial notes through which
judges can refer and get the knowledge about the foreign law. But due to increase of human
activity the law is getting complex and because of that demand of expert opinion is increased
from last forty years. As the situation is changing and the law is also developing according to
situation in that case to fill the gap between the law and the particular field of law the
requirement of expert opinion is increased. In Nelson v. Bridport 2 in this case the court held
that:-

“With foreign laws an English Judge cannot be familiar; there are many of which he must be
totally ignorant: there is, in every case of foreign law, an absence of all the accumulated
knowledge and ready associations which assist him in the consideration of that which is the
English law, and of the manner in which it ought to be applied, in a given state of
circumstances to which it is applicable. He is not only without the usual and necessary
assistance afforded by the accumulated knowledge and suggestions contained in the
arguments which are addressed to him, but he is constantly liable to be misled by the

1
Nelson v. Bridport, 8 Beav. 527, 536, 50 Eng. Rep. 207, 211 (1845).
2
Id
erroneous suggestion of analogies which arise in his own mind, and are pressed upon him
from all sides”.
Since under international law the doctrine of Lex Fori is applicable where the court decide
case based on the law of that court where the party belong and in such situation to know that
law of foreign country the judges have to look into the laws of that country and further if
there is conflict related to customary law than in that case the judges have to refer customary
law which is totally different and many time they don’t know about it. In such situation the
best way to approach is the appointment of expert who can do a detail study on it and can
provide information related to the customary law the reason behind the law. Similarly such
situation arises when the law is not codified and then in that case the court has to appoint
expert who can look into the law and came with detail information.
According to English law the foreign law cannot be proved through the document or bring
statue or any written statement it required an expert opinion or an oral interpretation to prove
the law of the state or country. Basically the law applicable on the foreign case is based on
the law of land i/.e lex situs where the property belong in case immovable property and in
case moveable to law of forum is applicable i.e lex fori but in such situation the court look
into the law of the land what law will be applicable on the party. The problem arises under
private international law where the court has to give judgment on foreign law which mean
they have to refer the lex causae.3
Further another moot problem is when the law is based on customary law which is unwritten
than in that the law can be proved through documentary evidence or though expert opinion.
We cannot considered that the court well versed with all the laws in the world apart from the
laws of its own jurisdiction. Therefore the Maxim “Jura novit curia” is applied.

This research paper is divided in three main parts: part I deal with the origin or the history of
expert opinion, part II deal with role of expert opinion, role of court and role of party in
appointing expert opinion and part III deal with the admissibility of expert opinion in relation
with lex fori.

Under German law the court direct consult with expert for the opinion in foreign law where
the expr opinion known as “Gutachten”. Where the judges call the expert to deliver his
opinion but sometimes this method is not relevant in the cases where the expert do not know
the foreign law. It is a very good rule of German where the “Gutachten” where the have
knowledge of not only the foreign law but also the German law also. Further he is not only
asked to give an expert opinion but also they have been provided all the files and document

3
Maarten Bos, The Franco-Italian Conciliation Commission, 22 NORDIC J. OF INT’L L. 133, 154 (1952)
related to the case and therefore he is not responsible for answer the question which is asked
by the court but the doubt which is arises by the court or the party.
Further the German court on calling the expert opinion they will call any person who has
knowledge related to the law of the field they can be any professor or lawyer but the cost
have to be bear by the parties of the suit.

CHAPTER 2:- HISTORY

To understand how the expert opinion come into picture, we must refer the history behind
this concept and how the court has used the best of expert opinion in there judgement. As
earlier there where few court and because of that the law also was very precise but as the
conflict arises number of law has developed and due to which separate court is also come into
picture. In that judges was not aware the law of the country or the customary law of that place
therefore to overcome with this problem the requirement of expert opinion has dramatically
increases.4
There are many reason because of which the requirement of expert opinion is subsequently
increased the most important is the development of complex and scientific situation which
required expert to give there opinion as they are specialised in such field.5
Expert opinion has always left an impact on the judges and the parties as it influence the
decision of the court and also help in increasing the knowledge of the court by referring the
law of the foreign court.6 Therefore the opinion of expert is not just an information to court or
a guidance but it also an important to impact the mind of the judges therefore the opinion has
a significant weight as an evidence in court.7
In 19th century Savigny has state “that the recognition of foreign legal systems necessarily
followed from the equality between nationals and foreigners demanded by the law of nations”. In
England the proper method of producing proof related to foreign law is through testimony of
the witness but earlier the to prove the foreign there was no need to call expert for giving
there opinion it was enough to have the document where the law is written for proving the
authenticity of the law. But later the law was changed in Sussex Peerage case, where it was held

4
Monika Ambrus et al., The Role of Experts in International and European Decision-Making Processes: Setting
the Scene, in THE ROLE OF “EXPERTS” IN INTERNATIONAL AND EUROPEAN DECISION-MAKING
PROCESSES: ADVISORS, DECISION MAKERS OR IRRELEVANT ACTORS? 1, 5–6 (M. Ambrus et al.
eds., 2014)
5
Anna Riddell, Scientific Evidence in the International Court of Justice: Problems and Possibilities, in 20
FINNISH .B. INT’L L. 229, 230 (2009)
6
Catherine E. Foster, New Clothes for the Emperor? Consultation of Experts by the International Court of
Justice, 5 J. INT’L DISPUTE SETTLEMENT 139, 140 (2014)
7
Joost Pauwelyn, Expert Advice in WTO Dispute Settlement, in TRADE AND HUMAN HEALTH AND
SAFETY 235, 248 (George A. Bermann & Petros C. Mavroidis eds., 2006).
that the law must be proved by the oral testimony of the expert and not by producing the document on
which the statute is mention. as it does not clear the doubt of the court because no clarification or
interpretation is given in the statute and beside the judges is not well versed with the background of
the enactment of law.8 Therefore to prove the law the document or statue are not required the expert
opinion who know how to interpret the law of foreign country. 9

Further in US the rule is differ as there the party have to prove the foreign law and it must be
pleaded by the party that the case involve foreign law further, in Monroe v. Douglass10 the
court held that “The courts of a country are presumed to be acquainted only with their own
laws; those of other countries are to be averred and proved, like other facts of which courts
do not take judicial notice; and the mode of proving them, whether they be written or
unwritten, has long been established”11

CHAPTER 3:- ADMISSIBLITY OF EXPERT OPINION BY LEX FORI

According to New York rule the oral testimony of the expert cannot be considered only proof
they have to proof there point though written document of that foreign law through statute or
the legislation interpretation to support there opinion.12
In Dougherty v. Equitable Life Assurance Soc'y13 “the court arrived at a conclusion wholly
contrary to the opinions of the experts on both sides, approving the statement of the Trial
Referee: Whatever witnesses called as experts may say, I must interpret the result of these
decrees”.
In Petrogradsky M.K. Bank v. Nat. City Bank, 14 the court stated: “This does not mean,
however, that the mere opinion of a witness will control the judgment of a judge except to the
extent that it is a reasonable inference from statute or from precedent or from the
implications of a legal concept, such as contract or testament or juristic personality”.
In Masocco v. Schaaf the court held that expert have to support with reason for there expert opinion as
to on what ground such opinion is given to the court. Further held that “ it is entirely proper to ask an
expert witness to state what in his opinion is the foreign law applicable to any given case. That is
primarily the purpose for which the expert is called. The weight to be given to his opinion will, of
course, depend upon the reasons he advances and the authorities he cites to sustain his conclusions”15

8
Lozard Bros. & Co. v. Midland Bank, [1933] A.C. 289
9
11 Cl. & Fin. 85, 115, 8 Eng. Rep. 1034, 1046 (1844).
10
5 N.Y. 447 (1851).
11
id
12
Masocco v. Schaaf, 234 App. Div. 181, 254 N.Y. Supp. 439
13
266 N.Y. 71, 193 N.E. 897 (1934).
14
253 N.Y. 23, 34, 170 N.E. 479, 483 (1930)
15
Reis v. N.Y. Trust Co., 136 Misc. 141, 143, 239 N.Y. Supp. 568, 571 (N.Y. City
Ct. 1929).
Further any testimony given by the expert it will not amount to be accurate and if found
wrong he cannot be convicted it is just the honest opinion of the expert to which is given after
weighing the all reasonable situation and the circumstance and the interpretation done by the
judges therefore the expert cannot be sued or convicted it the judgment is wrong or there is
some fault.

In the Crosby case, “an employee had sued his employer to recover for injuries sustained as a
result of an accident that took place in Cuba. No evidence was given at the trial regarding the
Cuban law, but the jury was charged on the law of the forum, the trial judge stating that if the
Cuban law was different from the lex Jori, it was for the defendant to allege and prove it”.

In Fusco v. Fusco,16 “which involved the question of the validity of a marriage, which in
turn depended upon the effect of a Royal Decree of Italy of November 17, 1938. A question
arose whether the decree must speak for itself, or whether the court could accept the
testimony of an Italian barrister regarding the construction to be given to it. The court, in
admitting the testimony of the Italian barrister, stated: Defendant sought to question the
applicability of this royal decree and sought to elicit from a witness, who had been admitted
to and practiced as a barrister in the Kingdom of Italy, his interpretation as to the meaning
and import of this Italian statute. This court received the evidence subject to a reservation to
later strike it out”.
in Usatorre v. The Victoria.” in admiralty for salvage with respect to a derelict vessel flying
the Argentine flag and owned by an Argentine corporation-the court held that the issues
should be determined by Argentine law. The expert witness who testified with respect to the
Argentine law was an American lawyer, a member of the Bars of New York, Cuba, and
Puerto Rico, who had studied Argentine law and who was the author of a digest of that law.
The court, in commenting upon the fact that the expert witness cited no decisional law, but
merely gave his interpretation of uncited commentators interpretations of the Code of
Commerce of Argentine, stated that: The judge is not bound to accept the testimony of a
witness concerning the meaning of the laws of a foreign country, especially when, as here,
the witness had never practiced in that country”17
In the case of The Goods of Dost Aly Khan, 18 “it was shown that there were no professional
lawyers in Persia, but that all diplomatic officials of Persia were required to become versed

16
200 Misc. 1039, 107 N.Y.S.2d 286 (Sup. Ct. Onondaga County 1951).
17
Masocco v. Schaaf, 234 App. Div. 181, 185, 254 N.Y. Supp. 439, 445
(3d Dep't 1931),
18
6 P.D. 6 (1880),
in the law of that land, and upon that foundation, the testimony of a secretary of the Persian
Embassy was admitted with regard to the law of Persia”.
In Brailey v. Rhodesia Consolidated, Ltd19, “a Reader in Roman Dutch Law to the Council of
Legal Education, who had made a special study of the laws of Rhodesia for the purposes of
lectures, was permitted to testify as to Rhodesian law”.
In Wilson v. Wilson20, “an English barrister, who had researched the marriage laws of
Malta in connection with matters relating to his practice, was permitted to testify as to such
laws on the issue of the validity of a marriage solemnized on that island”.
In The Goods of Whitelegg21, “the testimony with respect to the laws of Chile was obtained
from an English solicitor who, while never a practicing lawyer in Chile, had, as a result of
his practice, acquired skill and experience in connection with the laws of that country”.
In the case of De Be~che v. South American Stores 22, “involving a bill of exchange given in
Chile, the court preferred the testimony of a London bank director with many years of
banking experience in South America, to that of a young lawyer who had been a member of
the Chilean Bar for only 4 years”.
The New York cases are substantially in accord and establish the principle that a layman or a
jurist of another country may testify with respect to the laws to be proved, upon a showing of
familiarity with those laws23
In Connecticut24 “the Federal Court of Claims it has been held that study alone may qualify
the witness to testify upon the law with which he has familiarized himself, and an
Ohio court has stated that the fact that a witness is not well qualified to give opinion evidence
affects the weight and not the admissibility of his evidence”.25
The New York decision of Kirsten v. Chrystmos “sometimes cited for the proposition that the
opinion of a layman cannot be accepted on questions of law, is not authoritative upon that
issue. That case involved a motion for summary judgment in which the opinion of the layman
with respect to New Jersey law was submitted in affidavit form and stated only that he was
advised with respect to the law in question, without giving the source of his advice and not
otherwise showing knowledge of any kind with respect to the laws of New Jersey”.26

19
[1910] 2 Ch. 95
20
[1903] P. 157
21
[1899] P. 267
22
[1935] A.C. 148
23
Kenny v. Clarkson, 1 Johns. 385, 393, 3 Am. Dec. 336 (N.Y. 1806).
24
Barber v. Intl Co. of Mexico, 73 Conn. 587, 48 Atl. 758 (1901).
25
Dauphin v. United States, 6 Ct. Cl. 221 (1870).
26
14 N.Y.S.2d 442 (Sup. Ct. Kings County 1939).
In Vander Donckt v. Thellusson,27 “the Belgian law of promissory notes was proved through
the testimony of a native of Belgium who had formerly been a commissioner of stocks in
Brussels (but at the time of his testimony was a hotel-keeper in London), on the theory that
his occupation in Belgium had enabled him to become skilled in mercantile law”.

CHAPTER 4:- ANALYSIS

The expert opinion has played very role in the judicial decision as the judges are not always
well versed with the laws of the other jurisdiction therefore they have to rely on expert
opinion but there are some other reason as to why the expert play a very important role are:-

1) As many laws in the world are not codified and therefore it is very difficult to
understand it and to do interpretation of the law when we do not know it.
2) Second reason it the language as the foreign is not that easy and even if we know it
sometime a single word have different meaning and this will create confusion
therefore expert opinion is required.
3) Further the expert play an educational role as they not even introduce the foreign law
but also inform the background of the law of foreign country.

CHAPTER 5:- CONCLUSION

Since the law is vast and to have knowledge of every law is not that easy therefore the
requirement of someone who have knowledge related to that field is required in this case.
Here the expert opinion role comes into picture where they have to clarify the doubt of the
court related to the foreign law in question further they have to interpret the law of foreign
court and look for the background reason on which such law was enacted and the judicial
interpretation done on that law.

When a court ask expert opinion on a foreign law in that case the court is not bounded by the
opinion of the court it is there discretion to decided whether they want to rely on the opinion
of the expert or not. Even if the judge want to do research they can go for there own research
and come to on a conclusion. Further a person who has knowledge about the law or the
custom of that country they can be considered as an expert.

27
8 C.B. 812, 137 Eng. Rep. 727 (1849)