From an unrelated thread in IMHO someone posted a case from South African law with regards to compulsion being a defense for murder. When I did a google search for that case, I found many other cases quoting that one, mostly in South Africa, but a few in Australia.
So my question is, to what extent can lawyers in one country use legal decisions from another country to make their case? Are only certain countries affected (ie can the US only use US cases)? Is it because Australia and South Africa are both commonwealth countries and share similar British based legal systems? Please enlighten me dopers…
Oh the case I googled was S v Goliath 1972 (3) SA 1 (A). In case anyone was wondering.
In regular American civil and criminal court’s, the use of foreign law most generally is not material.
Sure you can have International law disputes, Maritime law disputes, International copyright suits, etc. These may be decided by Treaty/Country case law etc.
Yeah, and New Hampshire still follows the Magna Carta.
I think the laws of another sovereign country are only applicable within their borders.
The only exceptions would be (as stated earlier) maritime law and international trade.
But IANAL.
I can’t cite a specific example of this ever happening, but let’s say a couple files a joint tax return and the IRS challenges it. A US Court may be asked to apply foreign laws to determine whether the couple was legally married in another country or it may be asked to determine whether a member of the couple was legally divorced in another country and thus free to remarry in the US.
Similarly, if a US person sells property in another country and there is a dispute about what tax year the sale was completed, the court may have to look to property law in the foreign country.
Well, you could argue that the United States uses a “British based legal system,” as the US uses the common law legal system developed in Britain centuries ago. The Commonwealth has nothing to do with it; what matters is common law–the notion that “like decides like” in legal matters.
It is possible for a court in one common law country to consider a decision made in another common law country, especially if the facts and circumstances are similar. However, it needs to be said that a foreign decision is never binding–at best, it can only be persuasive. Even a decision made by, say, the High Court of Australia (that country’s Supreme Court) cannot bind a provincial court in Canada (that country’s lowest level of court), though the Canadian provincial court can certainly consider the Australian decision if it wishes. But it doesn’t have to, and there may be very good reasons why it won’t.
Generally speaking, lawyers prefer to use their own country’s body of caselaw before they look to that of a foreign country. The reason is practicality; for example, a Canadian high court’s decision can bind a lower court in Canada, so there is no need to look elsewhere for something that (assuming the court agrees to consider it) can only persuade, but not bind. Looking in other countries’ decisions for one that supports your argument tends to be something that is done only as a last resort, or when there isn’t much of a body of law in one area. As an example of the latter, Canada has little in the way of intellectual property caselaw; but since the US has a lot, and the law in the two countries is very similar, Canadian courts have often considered American intellectual property cases in order to guide them to a decision. Naturally, though, this situation may change as Canadian intellectual property cases increase.
The United States considers other countries’ law very rarely, and when it does, it seems to me that is it often in a way that it won’t make any difference to the matter at hand–see for example, Scalia’s dissent in Ransom v. FIA Card Services, N. A., 562 U.S. ___ (2011) (PDF link), where he refers to an English appeals court decision to illustrate his point about the meaning of a word. And in Roper v. Simmons, 543 U.S. 551 (2005) (PDF link, see page 21 of the PDF), the Court surveys the statute law of other countries, paying particular attention to that of the UK, which it cites; but also speaking in general terms of similar statute law in Canada and India, among others. Overwhelmingly, though, the US has a large enough body of caselaw that it doesn’t need to turn to that of other countries, and so, it doesn’t.
European Court of Justice decisions have a heavy impact on jurisprudence here, notably the decision in Factortame, which is as close as the court has (so far) to directing the British legislature to change its laws.
You might change the law within your country so that it’s legal to oppress an ethnic minority, for instance, but you’re going to be in big trouble if your regime falls.
Courts of ultimate appeal in Commonwealth countries dealing with novel points of broad application (ie, not points deriving from a particular specific statute like a town planning act) often undertake an historical exegesis of the point and a review of such international authority as there is. These things will assist in the decision, but won’t bind the court.
Otherwise, there is a whole body of law sometimes called private international law or conflicts of laws.
Each country has its own set of meta-rules about which law applies to resolving questions that have cross-border implications, like marriage, divorce, citizenship, and all sorts of other things. Sometimes, the law chosen in a country to solve these things is the law of the forum (where the litigation is), and sometimes the law of where the parties are domiciled, to give typical examples. For example, the law by which a marriage is conducted in a country will commonly be the lex fori, but for the purposes of divorce, recognising whether people who were married in a foreign country are in fact legally married may involve reference to the law where the marriage was conducted.
And to complicate these things further, these meta rules sometimes conflict. Redland’s law may say that, for the purposes of a divorce sought in Redland, one looks to the law of Blueland, where the marriage took place. But Blueland’s law says the legitimacy of a marriage is to be determined by the law of the country where the divorce is sought. This “mirrors reflecting each other” problem is called a renvoir, and there are meta-meta rules for resolving them.
Another example of the need to take account of foreign laws is in extradition cases. The USA will typically not extradite someone for a foreign offence unless the conduct, had it occurred in the USA, would also have been an offence. This can sometimes involve a close comparison of the laws of both countries.
Firstly lets gets some nomenclature confusion out of the way. International Law is different from Foreign Law, foreign law is the law of jurisdictions other then the jurisdiction is question, that is almost never binding and can only have persuasive value. International law is amongst other things consists of treaty’s, conventions etc, agreements between states. Those which have been ratified (that is incorporated into the domestic legal system) are in fact binding. For example, the Hague Visby Rules and Warsaw and Montreal Conventions are binding on the US because they have been incorporated into domestic law.
As for foreign judgements the issue is much more complicated. Strictly speaking, they are not binding at all because they are foreign. In reality how much weight and respect they will be given depends on the Court in question. Now if its a new and novel issue that is being agiated for the first time before the Court of that Jurisdiction, relevant foreign rulings will certainly be relevant. Many US Supreme Court cases have been cited by Countries who have newly established charters of rights as the US has a long and until the mid twentieth century unique jurisprudence in that area. On the other hand if its an area like Tort where you have a plethora of domestic case law then putting forth a foreign case is not as much a good idea as a waste of time.
Then there are areas which involve international trade and cross multiple jurisdictions, like Intellectual Property law, Shipping law and commercial law. Over here not following international trends can have a deletarious effect and the pressures to conform can be enormous. In Marvera and the Sinska the English Court of Appeal abandoned decades of precedent and relied on a US Supreme Court decision about the interim freezing of defendents assets. In The Bremen v Zapata, the US Supreme Court overturned its own precedents in setting aside the concurrent judgements of the Courts below and following the English (and international standard) practice of enforcing choice of law clauses.
Of course, in the Commonwealth this is further complicated by the fact that for nearly 150 years the entire Commonwealth had a unified ultimate appeals court, whose Judge were English judges (usually) who applied English decisions. Furthermore, many commonwealth statutes were reproduced verbatim by legislative bodies of other states, the Indian Evidence Act was based upon the Canadian Act, the English Companys Act pretty much was copied word for word by other jurisdictions. So foreign decisions or at least Commonwealth decisions were not just exercises in theory, but a practical need.
Australia only fully abolished the right to appeal to the UK Privy Council in 1986 (although it had been in decline since before then) and South Africa abolished it in 1950. Other commonwealth countries probably have a similiar history and a small number still allow appeals.
Since they have a common source for much of their case law, it would make more sense for an Australian case to cite South Africa, than say for a US or German case.
I believe (but am not sure) that Canada abolished the right of appeal to the UK Privy Council in 1947. If it wasn’t that year, it was within a couple of years of that date.
As far as I am aware, pre-Independence British case law, to the extent that it hasn’t been superseded, is “good law” in any state. I use quotes because I can’t imagine a judge using that in his ruling if he already wasn’t going to decide that way anyway. Not many trover cases these days.
Foreign law is still looked at today in cases when looking at something completely new to the US, but that another nation may have some experience with. As you can imagine, I’ve only seen it a handful of times and it’s pretty notable when it does happen.
Here’s an example from one major Supreme Court of Canada case, Reference re Manitoba Language Rights. The case concerned the de facto doctrine, in circumstances where there was a serious potential for a break-down in the rule of law. The Supreme Court canvassed cases from a wide variety of sources. About 60% were Canadian cases; about 40% were from other countries.
Canadian courts: 22.
Canadian decisions on appeal to the Judicial Committee of the Privy Council: 3
English courts: 8
SCOTUS: 4
Pakistan: 2
Cyprus: 1
Ceylon (on appeal to the JCPC): 1
Southern Rhodesia (on appeal to the JCPC): 1
Complete Summary:
Canadian Cases
Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, affirming [1978] C.A. 351, 95 D.L.R. (3d) 42, affirming [1978] C.S. 37, 85 D.L.R. (3d) 252;
Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312;
Pellant v. Hebert, St. Boniface Co. Ct., March 9, 1892, reported at (1981), 12 R.G.D. 242;
Bertrand v. Dussault, St. Boniface Co. Ct., January 30, 1909, reported at 77 D.L.R. (3d) 458;
Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445;
R. v. Forest (1976), 74 D.L.R. (3d) 704;
Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032;
Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393;
Société Asbestos Ltée v. Société nationale de l’amiante, [1979] C.A. 342;
Re Public Finance Corp. and Edwards Garage Ltd. (1957), 22 W.W.R. 312;
Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182;
R. ex rel. Anderson v. Buchanan (1909), 44 N.S.R. 112;
Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576;
14…Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753;
Procureur général du Québec v. Collier, [1983] C.S. 366;
Procureur général du Québec v. Brunet, J.E. 83‑510, rev’d on other grounds, J.E. 84‑62 (S.C.);
Roncarelli v. Duplessis, [1959] S.C.R. 121;
Reference re Disallowance and Reservation of Provincial Legislation, [1938] S.C.R. 71;
O’Neil v. Attorney‑General of Canada (1896), 26 S.C.R. 122;
Turtle v. Township of Euphemia (1900), 31 O.R. 404;
R. v. Gibson (1896), 29 N.S.R. 4;
Eadie v. Township of Brantford, [1967] S.C.R. 573; Canadian Cases Decided by Judicial Committee of Imperial Privy Council
Montreal Street Railway Co. v. Normandin, [1917] A.C. 170;
In re Initiative and Referendum Act, [1919] A.C. 935;
Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503 England
Howard v. Bodington (1877), 2 P. 203;
Carl‑Zeiss‑Stiftung v. Rayner and Keeler Ltd. (No. 2), [1966] 2 All E.R. 536
Abbé de Fontaine’s Case (1431), Y.B. 9 H. VI, fol. 32;
Scadding v. Lorant (1851), 3 H.L.C. 418, 10 E.R. 164;
R. v. Slythe (1827), 6 B. & C. 240, 108 E.R. 441;
Margate Pier Co. v. Hannam (1819), 3 B. & Ald. 266, 106 E.R. 661;
R. v. Corporation of Bedford Level (1805), 6 East 356, 102 E.R. 1323;
Parker v. Kett (1702), 1 Ld. Raym. 658, 91 E.R. 1338; United States
Texas v. White, 74 U.S. 700 (1868);
Horn v. Lockhart, 84 U.S. 570 (1873);
United States v. Insurance Companies, 89 U.S. 99 (1874);
Baldy v. Hunter, 171 U.S. 388 (1898); Pakistan
Special Reference No. 1 of 1955, P.L.R. 1956 W.P. 598;
Federation of Pakistan v. Tamizuddin Khan, P.L.R. 1956 W.P. 306; Cyprus
Attorney General of the Republic v. Mustafa Ibrahim, [1964] Cyprus Law Reports 195; Ceylon (on appeal to the JCPC)
Bribery Commissioner v. Ranasinghe, [1965] A.C. 172; Souhern Rhodesia (on appeal to the JCPC)
“Choice of law clauses” would be those saying where any disputes will be solved, right? (I looked it up but what I found was still in legalspeak, sorry)
“Choice of law” would be which set of laws to follow.
Let’s say a Delaware corporation sued a New York corporation over a contract that was executed in Ohio. And let’s say Delaware, New York, and Ohio laws said different things about how the contract was to be enforced. The court would need to decide which state’s law to follow. One state’s courts can and do decide cases based on another state’s laws as well as federal laws. Similarly, federal courts often decide cases based on the applicable state law.
Right. And I made an error/ommission in my statement, it was a choice of law and forum clause (which in my defence are usually lumped together as choice of law clauses). In Bremen v Zapata, the choice of law and forum was the High Court in England. Zapata (the company founded by George H W Bush) sued in the US District Court in Florida which, citing Supreme Court precedent, choose to disregard the clause, a judgement which the Court of Appeals upheld for the same reason. The US Supreme Court however, decided to set aside the concurrent findings of the Courts below and instead relied on English practice of accepting choice of law clauses (as well as admittedly a dissent in an earlier SCOTUS case.). The Court of Appeals erred despite following Supreme Court precedent. That must have made for awkward moments at that years circuit dinner.
Not just Courts of Ultimate Appeal, but6 academic writers, and case book and law report editor. A few months ago, in a set of English reporters, I discovered a judgement of the Pakistani Copyright Appeals Board. A decision not of a Superior Court, but a quasi-judicial tribunal, and furthermore one which had not been reported (as far as I checked) in its parent jurisdiction. Someone had bothered to go discover a judgement of a jurisdiction thousands of miles away. This amply illustrates how much cognizant of each others law the Commonwealth is.
