Abstract
This article critically evaluates the Spectrum Approach as applied in the appellate review of findings of foreign law. The Spectrum Approach posits that the degree of deference to trial judges’ determinations of foreign law depends on the analogousness of the foreign legal system to the domestic legal system, situating cases on a spectrum between questions of fact (for dissimilar systems) and questions of law (for closely aligned systems). While the Spectrum Approach attempts to offer a structured framework, this article identifies four key deficiencies with the Approach: (1) over-emphasis on the common–civil law dichotomy, (2) circularity in assessing ‘similarity’ between legal systems, (3) artificial separation in the ascertainment and application of foreign law, and (4) indeterminacy for cases occupying the middle of the spectrum. This article argues that the Spectrum Approach involves unnecessary inconsistencies and complexities, which the Privy Council did not adequately address in its decision of Perry v Lopag Trust Reg. This article advocates for a flexible, context-sensitive adjudication without any rigid categorisation or sequential reasoning, ensuring consistency with principles of judicial restraint and fairness. This debate has important implications on the treatment of foreign law in domestic courts amid increasing cross-border litigation.
Keywords
Introduction
Under the orthodox common law position, matters of foreign law should be proved by expert evidence, as a matter of fact, examined on oath. 1 However, following the obiter remarks by Lord Leggatt in the UK Supreme Court decision of Brownlie v FS Cairo (Nile Plaza) LLC, it appears that English law now holds the view that the traditional notion of requiring the tendering of expert evidence ought to be relaxed, 2 in line with the trend of some other common law jurisdictions. 3 It was suggested that mere texts of foreign law may sometimes suffice as evidence for the judge, without the need for evidence from foreign law experts, where the text does not call for ‘skilled exegesis’. 4 The pertinence of these obiter remarks from Brownlie was recognised in the Privy Council decision of Perry v Lopag Trust Reg. 5 But Perry was not strictly concerned with the extent to which a judge may dispense with expert evidence on foreign law. Rather, Perry considered in detail the role and extent to which appellate judges may analyse and review the findings of foreign law by a trial judge. It analysed the ‘Spectrum Approach’, an approach which has been applied implicitly since earlier cases, namely that findings of foreign law fall within a spectrum with reference to the analogousness between the foreign legal system and the domestic legal system. 6
This article focuses on two issues with the Spectrum Approach. First, the extent to which a trial judge may exercise their skills and experience in domestic law to ascertain and apply foreign law. Secondly, the extent to which an appellate court may intervene in such findings of the trial judge, if at all. This article seeks to clarify the underlying basis for the Spectrum Approach, and assesses the strengths and deficiencies brought about by the Spectrum Approach. It argues that the Spectrum Approach contains inconsistencies and complexities, particularly for cases that fall within the middle of the spectrum. As a Privy Council decision, Perry fails to afford clarity to the current state of the law.
This article progresses as follows. The ‘Findings of foreign law, appeals and the Spectrum Approach’ section provides an overview of the current common law rules on findings of foreign law and appeals of such findings. The ‘Rationale of the Spectrum Approach’ section explores the underlying rationale and justifications of the Spectrum Approach. The ‘Problems of the Spectrum Approach’ section considers four problems in understanding and applying the Spectrum Approach. ‘The way forward’ section argues that, instead of the Spectrum Approach, a flexible, case-by-case approach should be favoured. The ‘Conclusion’ section summarises the arguments of this article.
Findings of foreign law, appeals and the Spectrum Approach
The meaning of ‘foreign law’ may be taken at face value: it refers to the laws of another jurisdiction, which is not the jurisdiction of the court adjudicating the dispute. The aim of domestic judges when assessing foreign law is to reach a view as to what the highest relevant court in the foreign legal system would decide if the point were to come to it. 7 Generally, two rules govern the proof of foreign law: (1) where no party pleads foreign law, domestic law is applied (the ‘default rule’); and (2) where a party relies on some foreign law, that party must plead and prove the foreign law to the court's satisfaction, failing which the foreign law is presumed to be similar to domestic law (the ‘presumption of similarity’). The default rule does not concern itself with the contents of any foreign law, while the presumption of similarity takes the contents of the foreign law to be similar with those of domestic law in the absence of contrary evidence. 8
In most common law jurisdictions, the question of foreign law is approached as a question of fact, 9 to be proven by evidence, 10 albeit such a question has been described as a question of a ‘peculiar’ fact, 11 and findings of such fact are said to be in a special category. 12 This is because they seemingly sit somewhere between an ordinary question of law and an ordinary question of fact. 13 As explained by Brereton, reasons for this peculiarity include: 14 (1) the doctrine of precedent does not apply; (2) foreign court decisions are not conclusive but merely evidence; 15 (3) the appellate review of foreign law findings is not as constrained as ordinary findings of facts; (4) courts may independently analyse foreign law if expert evidence is flawed; 16 and (5) while proving the contents of foreign law may be a question of fact, applying foreign law to the case facts is a question of law.
As to when and to what extent a trial judge may rely on their own skills and experience in domestic law in ascertaining and applying foreign law, it depends on the circumstances and the nature of the issues involved in each case. 17 Common law has recognised that where the foreign law was written in English, and not so dissimilar from English law, the domestic judges’ skills and experience may well contribute to deciding on the issue of foreign law. 18 It was suggested expressly that if the case involves a foreign system of law similar to domestic law, the judges are ‘entitled and indeed bound’ to bring their own skills and experience in domestic law into play and give legal input, in addition to assessing the weight of evidence. 19 On the contrary, where the foreign law was not expressed in English, and was very much not a system of common law, there is reduced area for the judge to apply their own skills and experience in domestic law in determining the issue of foreign law, 20 and the judge must take expert evidence tendered on foreign law as evidence tendered on facts, compare the evidence from both sides, and accept or reject (parts of) the expert witness's evidence. 21
On appeal, findings of foreign law by a trial judge – like other findings of fact – can rarely be successfully challenged. 22 This is because the appellate courts exercise a ‘disciplined restraint’ in not lightly setting aside the trial judge's finding of fact, 23 and are slow to differ from any findings of facts by the trial judge. 24 The appellate court may only intervene in circumstances where it was clearly ‘outside the range of reasonably available alternatives’. 25 A fortiori, in the final or second appellate court, an appeal on the concurrent findings of the two courts below – namely, the first instance court and the first appellate court 26 – will usually be declined, unless exceptional circumstances arise. 27 Such exceptional circumstances include the miscarriage of justice or violation of a principle of law or procedure, 28 or findings based on an erroneous understanding of law, which cannot stand in the first place. 29
The rationale for such restraint by the appellate courts is plain. First, the trial judge is in a much more advantageous position to assess the credibility of witnesses’ evidence. 30 This is because the trial judge has first-hand experience in dealing with the witnesses of the case, and has ‘lived with the case’, seeing how evidence has been developed for the whole duration of the trial. They are likely to have a more comprehensive understanding of the case than appellate judges, 31 who are not provided with the opportunity to oversee the examination of and put questions to the expert witnesses. 32 This underpins the notions cited in Perry that the appellate courts are sometimes being seen as ‘island hopping’, while a trial judge enjoys the privilege of having ‘the whole of the sea of evidence presented’ to him. 33 Secondly, the cost of diverting precious judicial resources at the appellate level to repeat the function already exercised by the trial judge in making findings of fact is disproportionate to the accuracy of fact determination, 34 rarely leading to a different conclusion. 35 Thirdly, it places too heavy a burden on parties to the appeal in focusing their resources and energies to persuade the additional appellate judges, after already being required to do so in trial. 36
In Perry, the Privy Council attempts to clarify and apply the Spectrum Approach regarding the role of judges in the appellate levels in dealing with questions of foreign law. The Spectrum Approach posits that findings of foreign law fall alongside a spectrum, with one end of the spectrum being cases where the foreign system of law is a common law system with analogous principles, rules of interpretation and analysis with domestic English law, and the other end of the spectrum being cases where the foreign system of law is much detached and diverts from the domestic English law. Consequently, where the foreign law is of a jurisdiction which is a common law system closely analogous to domestic law, trial and appellate judges may apply their own skills and experience in domestic law to ascertain and apply the foreign law, so that their findings of foreign law are more akin to findings of law. Conversely, where the foreign law is far detached and diverges from domestic law, the trial judge has a minimal area to apply their own skills and experience, and their findings are more akin to findings of fact, and the appellate courts should be slow to disturb these findings by the trial judge. 37 In other words, the Spectrum Approach intends to act as a means, or a sliding scale, on which the courts may decide where a question of foreign law lies – between a question of fact and a question of law – based on the circumstances of a particular case. The willingness of an appellate court to interfere with findings of foreign law depends on the placement of the foreign system of law on the spectrum, which in turn determines how qualified it is to apply its skills and experience and review the trial judge's findings.
Applying the Spectrum Approach to the facts of Perry, the Privy Council dismissed the appeal and upheld the findings of the lower Cayman Islands courts. The foreign laws to be applied in Perry – Israeli and Liechtenstein laws – are found to be remote to a Cayman Islands or English judge, given the absence of any obvious counterparts in the domestic legal system. It was held that the findings of foreign law in Perry lie at or near to the end of the spectrum where judges have a minimal role in applying their own skills and experience in domestic law, and are closer to findings of fact. Accordingly, the Privy Council upheld the normal practice of appellate courts not to disturb the concurrent findings of fact, unless there are exceptional circumstances showing the need to intervene. There were no such exceptional circumstances in Perry.
Rationale of the Spectrum Approach
The Spectrum Approach will enthusiastically conclude that, where the foreign law at issue is of common law origins, closely related and analogous to English law, the case will fall on the end of the spectrum where the question of foreign law is closer to a question of law, and the trial judge may rely on their own skills and experience in domestic law to ascertain and apply such law. However, one should not be hasty to conclude that the presence of common law origins, and hence the ‘closeness’ of foreign and domestic law, forms the cardinal basis in determining where a case lies on the spectrum. 38 In fact, as will be shown below, when applying the Spectrum Approach, it may be misleading for courts to place emphasis on whether the foreign law system has common law or civil law origins. Instead, the circumstances of each case must be carefully examined. 39
To understand why the Spectrum Approach may make sense, one should first identify the underlying rationale as to why the appellate courts may (not) intervene in findings of foreign law. The rationale is this: where a case falls to be determined by a trial judge, and there arises a question of foreign law, any potential intervention by the appellate court depends on the degree of reliance by the trial judge on their own skills and experience in ascertaining and applying the foreign law, as opposed to their reliance on matters exclusively arising from the trial hearing, such as the credibility and substance of the expert evidence. When the trial judge placed less reliance on exclusive matters which can only be overseen at trial, and more reliance on his own skills and experience in domestic law, then an appellate court may more readily intervene on these findings of foreign law. 40
The Spectrum Approach proposes to investigate how well-placed the appellate courts are when compared to the trial judge. The crux of this investigation is based on the notions of ‘island hopping’ and ‘the whole of the sea of evidence presented’. 41 In relation to findings of ‘unfamiliar’ foreign laws, only the trial judge in such cases have to themselves ‘the whole of the sea of evidence presented’, possesses knowledge of exclusive matters which can only be gleaned at trial and has the advantage of overseeing the whole trial. 42 Appellate judges are required to perform ‘island hopping’ as they are generally considered to be less insightful than the trial judge with incomplete evidence and information. In this situation, the appellate courts are slow to intervene and disturb the findings of facts below. On the contrary, in relation to findings of ‘familiar’ foreign laws, the appellate courts are not required to perform ‘island hopping’, and have to themselves ‘the whole of the sea of evidence presented’ to the trial judge, so there are no issues in disturbing the findings of facts below. For example, when the foreign law and domestic law are both common law systems closely analogous to each other, the trial judge has more room to exercise his own skills and experience in domestic law when making findings on foreign law, and there is less need to rely on expert evidence and exclusive matters arising in trial, such as the assessment of the credibility of the expert witness.
Seen in this light, the Spectrum Approach departs from the general practice of appeals against findings of fact outlined above. When courts decline to hear appeals on findings of facts, there is a clear line drawn, with general cases falling on the one side and cases with exceptional circumstances that justify intervention falling on the other side. The Spectrum Approach suggests that this ‘clear line’ does not apply to findings of foreign law. Rather, the degree or extent of the appellate court's intervention depends on where cases fall along a spectrum, with the courts exercising more restraint in intervening with cases which fall closer to ordinary findings of fact, and less restraint for cases which fall closer to findings of law. 43
The departure from a classical approach to a gradient approach might make sense if we adopt the label of questions of foreign law as ‘peculiar’ questions that sit uncomfortably between ordinary questions of law and ordinary questions of fact. It is clear that common law has recognised this distinctive feature of foreign law, and judges have always implicitly borne in mind that the practices applicable to ordinary questions of fact may not find similar applicability in questions of foreign law. 44 Thus, when analysing the Spectrum Approach, Perry attempted to materialise a range of scenarios that common law judges have had at the back of their minds when deciding on cases involving proof of foreign law. 45 The following two paragraphs are some illustrations of decided cases which may be explained based on the Spectrum Approach. However, it must be borne in mind that the list of scenarios on the spectrum which may attract appellate intervention is non-exhaustive. 46
Consider first the situation where the appellate courts did intervene with the trial judge's finding of foreign law. In Actavis UK Ltd v Eli Lilly & Co, there was a lack of oral hearing of expert evidence in the trial. 47 Although the foreign law was French law and the underlying rationale was not explicitly expressed, Lord Neuberger concluded that the appellate court was in as good a position as the trial judge to analyse the effect of evidence on foreign law. 48 With no oral hearing of expert evidence conducted at trial in Actavis, one may reasonably say that the appellate judges are just as well placed as the trial judge to deal with the same set of documentary evidence, 49 and there is no reason why the appellate courts should refrain from doing so, in order to achieve a fair and just outcome. In Cassini SAS v Emerald Pasture Designated Activity Co, the appellate court is provided with reports and full transcripts of evidence and the cross-examination of experts on French law. 50 As the appellate judges have for themselves ‘the whole of the sea of evidence presented’ at trial, they are fully entitled to consider the expert evidence afresh, 51 in order to formulate their own views and depart from the findings of the judge below. 52 In the Hong Kong Court of Final Appeal case of Zhang Hong Li v DBS Bank (Hong Kong) Ltd, the dispute was heard in Hong Kong but governed by Jersey law. The Court of Final Appeal cited Actavis and found that the restraints on the appellate court's power to interfere with findings of fact by the lower court are not applicable to the same extent to findings of foreign law, 53 and ultimately substituted the lower court's findings on Jersey trust law, which is largely similar to English trust law. 54
Now consider the situation where the appellate courts refused to intervene in the trial judge's finding of foreign law. In Byers v Saudi National Bank, 55 the trial judge had relied extensively on expert assistance and evidence on Saudi Arabian law, which was not available on appeal. The English Court of Appeal and the UK Supreme Court followed the general practice and refrained from disturbing the findings of facts by lower courts. As the foreign law was rooted in Sharia law, with origins far from common law, the findings of foreign law were closer to ordinary findings of fact, rather than findings of law. The same practice was adopted in Deutsche Bank AG (London Branch) v Central Bank of Venezuela, 56 where the trial judge heavily relied on translations of decisions as well as expert reports and oral evidence on Venezuelan law. The Court of Appeal determined that their review of the evidence would be closer to the act of ‘island hopping’, and that the appellate court was not as well placed as the trial judge to justify an intervention of the trial findings. 57 In Lodhi v Governor of Brixton Prison (No 1), in concluding not to interfere with the findings of the trial judge as to foreign (UAE) law, 58 the court cited MCC Proceeds Inc which decided that it is only when the issue calls for the exercise of legal judgment by reference to principles familiar to an English lawyer, will the appellate court be as well placed as the trial judge in coming to its own independent view. 59
Problems of the Spectrum Approach
Despite the potential utility of the Spectrum Approach in determining the extent of possible appeal on findings of foreign law, there are four problems which remain unresolved. These include (1) whether the Spectrum Approach should be read as operating based on a distinction between common law jurisdictions and civil law jurisdictions, (2) how should the ‘similarity’ between the contents of domestic law and foreign law be determined, (3) whether the Spectrum Approach should be applied in the ascertainment and/or application of foreign laws, and most importantly, (4) how should cases falling within the middle of the spectrum be dealt with. These four problems will be explained and discussed in turn.
A. Distinction between jurisdictions of civil law and common law?
As analysed in Perry, the Spectrum Approach placed significant emphasis on the presence or absence of connections between the foreign law with a common law system analogous to English law. 60 It was thought that the Spectrum Approach constitutes a ‘nuanced response’ in drawing a distinction between findings of foreign law where a common law jurisdiction is involved, and those findings where a non-common law jurisdiction is involved. 61 But one must ask: should the system of foreign law, being a common law or civil law system, have a significant bearing on where a case lies on the spectrum?
It may well be true that cases in common law jurisdictions involving foreign laws of other common law jurisdictions may result in judges relying on their own skills and experience in domestic law, and the converse may also be equally true: in cases involving foreign laws of civil law jurisdictions, judges of common law jurisdictions may not have much room to exercise their own skills and experience in domestic law. However, what truly separates the two types of cases is not the divide between common law and civil law, but the actual contents of the foreign law and the nature of the specific question of foreign law raised. 62 After all, it is not the common–civil law distinction that renders their contents and principles different from each other, but the differing contents and principles that render the laws of different jurisdictions distinctive from one another. Some principles may find common application across common and civil law jurisdictions, such as the principle of modified universalism in cross-border insolvency, with the main goal being the concentration and distribution of the insolvent company's assets in one single jurisdiction, underlying which is the common object across all jurisdictions of fairness and protection of the interest of creditors. 63 But other principles, such as punitive damages, do not find equal application even amongst common law jurisdictions. 64 As an example where the common–civil law distinction is not determinative, the English Court of Appeal in Cassini SAS v Emerald Pasture Designated Activity Co considered the trial judge's findings on French law, a system based on civil law. The English Court of Appeal found themselves to be just as well-placed as the trial judge in determining French law, given the availability of reports and full transcripts to the examination of experts. 65
Hence, the fact that a specific piece of foreign law originates from a common law or civil law jurisdiction is merely incidental to the question of whether its contents are far removed from domestic law, leading to the need for a varying degree of expert evidence and assistance by the judge, and accordingly a varying degree of reliance which the judge can place on his own skills and experience in domestic law. 66 The more important questions are the identification of the branch and contents of foreign law, and whether there is a similar counterpart in domestic law, so that the trial judge can be said to be ‘familiar’ with the foreign law. 67 On the appellate level, this also includes the question of whether the appellate courts are as well-placed as the trial judge.
This article argues that the Spectrum Approach has put too much emphasis on the common–civil law divide. Even though it is possible to read the Spectrum Approach and Perry's clarification to the effect that the common–civil law divide is only one of the factors, 68 there is a serious risk of misinterpreting the divide as an overpowering factor. This has already happened not only in academic articles 69 but also in subsequent judicial practice in various common law jurisdictions. For example, in Beard v Revenue and Customs Commissioners, the English Court of Appeal summarised Perry as presenting a spectrum of circumstances involving a foreign legal system which is ‘a common law system’ on the one end and ‘far removed from the common law’ on the other end. 70 Emphasis on ‘a common law system’ was placed by the UK Supreme Court in R v Hayes, where the prominent reason presented to suggest that Belgium law is not similar to English law was because ‘Belgium has a civil law and not a common law legal system’. 71 In Hyalroute, the Hong Kong Court of First Instance had to decide on the legal effects of winding-up proceedings under Cayman law in the absence of expert evidence. The Hong Kong court summarised the effect of Perry as ‘[w]here the foreign law in issue is a matter of common law, judges are entitled and indeed obliged to draw on their own knowledge of the common law if it bears on the resolution of the dispute’ and courts in Hong Kong ‘are perfectly capable of understanding the relevant legal principles in other common law jurisidictions’. 72 Accordingly, the learned judge interpreted and applied Cayman insolvency law as ‘a matter of common law’, despite it having considerable differences with Hong Kong insolvency law. Thus, it appears that Perry has rendered the common–civil law distinction an overpowering factor to justify reliance by judges on their own skills and experience in domestic law, discarding the need for further reasoning and investigation as to the true extent of ‘familiarity’ between the principles and legal concepts of the foreign law in question and domestic law. Indeed, it is better to adopt the wording of ‘familiarity’, rather than emphasising on the divide between common law and civil law. 73 It is submitted that the Privy Council's decision in Perry had not brought the expected clarity to the law on the Spectrum Approach, but instead reinforced pre-existing issues and confusion.
B. Determining similarity – A self-defeating approach?
The first problem above leads to an interrelated question: How should the ‘similarity’ between the contents of foreign and domestic laws be determined? If the distinction between common and civil law is (as this article argued) irrelevant and should be discarded, where a case falls on the spectrum would depend on the similarity of contents between foreign law and domestic law. But the Spectrum Approach did not deal with how such a determination can be made.
The Spectrum Approach suggests asking the ‘initial question’ of the precise location on which the question of foreign law lies on the spectrum. 74 This ‘initial question’ involves considering the similarity between foreign and domestic laws. After answering the ‘initial question’, the next question arises as to whether a judge may rely on their own skills and experience in domestic law, or as to whether appellate intervention is justified. However, when a judge is answering the ‘initial question’ by deciding whether the foreign law is similar to domestic law, the judge must necessarily and inevitably invoke their own skills and experience in domestic law. 75 This forms a self-defeating logic, as judges have to rely on their own skills and experience in domestic law, to determine the extent of reliance that can be placed on their own skills and experience in domestic law.
It is submitted that the Spectrum Approach has obfuscated the practice regarding proof of foreign law by treating the determination of where the question of foreign law should fall on the spectrum as the ‘initial question’. It is not possible for a judge to decide on similarity, and where the case lies on the spectrum, without first ascertaining the contents of the foreign law by applying and relying on their own legal training and skills. To determine similarity, one must first gain an understanding of the relevant foreign law; when (as is sometimes the case) the foreign law is not written in English, a translation is tendered, and expert opinion is given. 76 If there are inconsistencies between the expert opinion and the translated text, it is trite that a judge may then exercise their own judgment in ascertaining foreign law. 77 In doing so, the judge relies on their own legal training and skills to determine whether there is any generality in application between the relevant foreign and domestic laws. 78
Therefore, in practice, it is not possible for a judge to proceed in two distinct steps, firstly to decide where the case falls on the spectrum, and then proceed to decide whether there is more or less room to rely on expert evidence or their skills and experience. This will implicitly amplify or downplay the value and weight of expert evidence, because the judge's decision will have been affected by their prematurely formed impression as to where a case falls on the spectrum, before the judge actually consider the tendered evidence.
In reality, the question of where the case falls on the spectrum can only be decided after the judge exercised his value judgment, ascertained the contents of foreign law and heard the expert evidence in trial. The judge can then conclude whether his skills and training can be confidently and comfortably applied or added to the case, or whether extensive or even exclusive reliance on expert evidence is required. Only then does the case truly fall onto the spectrum. It is accordingly suggested that the better approach will be for the judge to retrospectively consider where the case falls on the spectrum, only after ascertaining the contents of foreign law and hearing the totality of evidence in trial, as well as deciding the extent to which they have relied on their own skills and experience in domestic law.
Alternatively, instead of establishing a sequential relation, it may be beneficial to simply read the Spectrum Approach as a value judgment: as the judge proceeds with hearing the trial and assessing evidence on the question of foreign law, they will naturally conclude where a case may fall on the spectrum. The location of a case on the spectrum and the expert evidence tendered do not have to be ranked in priority as ‘initial’ and ‘subsequent’ questions. By considering the matters of expert evidence and the spectrum in parallel, a judge is free from any pre-emptive views which may affect their decision, and can flexibly adjust their views as to where a case falls on the spectrum as the trial proceeds and the evidence develops over time, leading to a more accurate conclusion. Throughout the examination of expert evidence, the judge may form different views as to different parts of the foreign law, which may or may not share similarities or be analogous to domestic law. This view will settle once the trial comes to an end and before the judge decides on the question of foreign law.
C. Ascertainment and application – Intertwined or separate?
Another complication with the Spectrum Approach is the lack of clear guidance in its application. In Perry, the Privy Council seems to suggest that there is a separation between the ascertainment and the application of foreign law. 79 In Banca Intesa Sanpaolo SpA v Comune di Venezia, 80 a decision which post-dates Perry, this suggestion was taken up and the findings of the trial judge were categorically separated into two distinct stages: (1) the ascertainment and interpretation of the contents of foreign law (the ‘Ascertainment Stage’), and (2) the analysis, application and conclusion of the foreign law so ascertained, to the facts of the particular case (the ‘Application Stage’). 81 Banca suggested that the Spectrum Approach has to be applied to each stage independently, to determine whether the trial judge may have relied on their own skills and experience in domestic law during each particular stage.
At first glance, the two-stage approach in Banca offers a transparent and structured way of reasoning when extending the scope in which the appellate courts may intervene. Instead of deciding whether a case as a whole justifies appellate intervention, the two stages are evaluated separately. For the Ascertainment Stage, where a trial judge had relied heavily on expert evidence to understand a foreign law much different from English law, appellate courts have less room to intervene, as this is more a question of fact. 82 Conversely, during the Application Stage, the trial judge had conducted an evaluative exercise by using their skills and experience on domestic law, without relying on expert evidence. 83 It was in the Application Stage that the English Court of Appeal in Banca found its justification for intervention.
However, it is submitted that this two-stage application of the Spectrum Approach unintentionally widens the scope and extent to which appellate courts may interfere with the findings of lower courts, and errs in principle. Separating the trial judge's findings of foreign law into two stages demonstrates a wrong understanding of the timing when a trial judge is exercising and relying upon their own skills and experience in domestic law. In the Application Stage, a trial judge will always be seen as having exercised and relied on their skills and experience, without appearing to have relied on any expert evidence. This reasoning, taken to the extreme, implies that so long as the trial judge has applied foreign law to the facts of the case (which is virtually done in all cases), there will always be grounds for the appellate courts to intervene. The separation into two stages renders the basis on which an appellate court may intervene ambiguous, and runs contrary to the general practice that, where the case falls close to the question-of-fact end of the spectrum, there will only be appellate intervention where exceptional circumstances arise. 84 Forcefully slicing the case into two stages fails to demonstrate the necessary restraint that must be exercised by appellate courts, and inappropriately justifies intervention even where the question of foreign law was ascertained to be closer to a question of fact.
The separation of the trial judge's findings into two stages misdirects the court's attention by creating two distinct parts for consideration, even though the case ought to be considered as one whole. By only focusing on the Application Stage, it is hardly ever possible to find any use or reliance on expert evidence by the trial judge. It is certainly true that the application of foreign law to the case facts is an exercise carried out predominantly or solely by the trial judge and not the expert. However, the judge's application of foreign law is dependent on the ascertainment of such foreign law, which relies heavily on expert evidence in the first place. 85 Banca had only considered the issue of whether a judge had actively relied on expert evidence in the Application Stage (when applying the ascertained foreign law to the facts), without taking into account the preceding fact that the judge had (implicitly) placed reliance on, and had been influenced by, expert evidence given previously in the Ascertainment Stage.
Accordingly, it is submitted that the application of the Spectrum Approach should not involve the separation of findings of foreign law by the trial judge into the Ascertainment Stage and the Application Stage. The courts should consider the case as a whole, and not attempt to demarcate the findings of foreign law in pursuit of enhanced structure. Otherwise, the appellate courts will necessarily perform ‘island hopping’ even when they have ‘the whole of the sea of evidence presented’ to the trial judge. This is because the artificial separation into two stages will incentivise appellate courts to intervene specifically at the Application Stage, while disregarding the trial judge's holistic assessment of evidence during the entire fact-finding process. Consequently, appellate courts risk engaging in ‘island hopping’ by formulating their own views and conclusions based on fragmented evidence, rather than the totality of expert evidence and contextual understanding that informed the trial judge's decision.
D. Cases falling in the middle of the spectrum?
The fourth, and perhaps the most important, issue that arises from the Spectrum Approach is how a case falling in the middle of the spectrum may be decided. This is a crucial question because a lack of guidance for these cases may suggest that a spectrum-based analysis is not necessary at all. Surprisingly, almost all cases employing the Spectrum Approach, including Perry, do not appear to mention or even consider any potential scenarios of cases falling in the middle of the spectrum. This article attempts to extrapolate a potential answer, and demonstrates that when the cases fall in the middle of the spectrum, the formulation of the Spectrum Approach does not make sense and is redundant. For these cases, there are two major problems: (1) whether the trial judge should primarily rely on the tendered expert evidence or their skills and experience, and (2) whether the appellate court should adopt the general practice in refusing to disturb the findings of foreign law by lower courts.
If the Spectrum Approach is to be adopted, then any trial judge can reasonably infer that, when cases appear to fall in the middle of the spectrum, they are entitled to rely on both their own skills and experience, as well as the expert evidence tendered. It is a balancing exercise which the trial judge must conduct to ascertain the extent of reliance on each. However, this very balancing act can lead to inconsistencies and ambiguities. For instance, if one trial judge relies more on expert evidence, appellate courts may be reluctant to intervene due to concerns about ‘island hopping’. Conversely, if another trial judge relies more on their own skills and experience to reach the same conclusion, an appellate court may be more willing to intervene than usual. The finality of the trial judge's findings, and thus the possibility of appeal from the losing party at trial, will heavily depend on a lottery of judges and the balance attempted by each trial judge between the expert evidence and their own skills and experience, as determined and claimed by themselves. This creates unacceptable uncertainty about both the outcome of the trial and the extent of intervention by the appellate courts.
Moreover, cases falling in the middle of the spectrum may be criticised as the ‘novel alloy of the judge's own making which surprises both parties and probably satisfies neither’. 86 This criticism was originally made against the English courts’ exercise of discretion to pick and choose different parts of the evidence tendered by opposing experts in forming a final view on the question of foreign law when there is contradicting expert evidence. It was said that ‘curious results may yield’. 87 The same criticism can be made when the trial judge decides to apply his own legal skills and experience in one area of foreign law, and to seek reliance on expert evidence in another: for example, rejecting expert evidence on parts of the foreign law where its English translation is inconsistent with the presented expert evidence, while at the same time accepting expert evidence on certain words being ‘terms of art’ in foreign law. This is effectively also cherry-picking.
This discussion raises a more fundamental question: Are courts in these scenarios genuinely ascertaining the truth and delivering justice, or are they merely deciding based on the available pleadings and evidence? The reality seems to be neither. It was said that the satisfactory application of foreign law relates not to the court's ability to ascertain the truth, or to arrive at the proper or right answer under foreign law as a foreign court would, but whether the adjudication process is ‘authentic’. 88 However, a combined reliance on both a judge's own skills in one area and the expert evidence in another may lead to a conclusion which is far from what the foreign court may really decide. In doing so, the process is in no way ‘authentic’, as the court simply does not have any relatable legal training that the foreign courts may have. 89 The result is that the court will purport to reproduce conditions under which questions of foreign law are to be answered in the relevant foreign jurisdiction, 90 while lacking the foreign legal training and expertise to answer the same. After all, expertise in foreign law comes from experience in the foreign legal system, 91 and not in the abstract. The courts have to forge a path of their own, seemingly relying on expert evidence and not their own skills and experience, but in reality coming to a conclusion based on their subjective views and legal training. To this extent, the Spectrum Approach fails logic and justice, particularly to cases falling in the middle of the spectrum.
The way forward
As argued above, the Spectrum Approach is riddled with various problems at a general level. Most significantly, when the case falls in the middle of the spectrum, and the trial judge's discretion is inevitably exercised to decide the extent of reliance on their own skills and experience in addition to expert evidence, there may often be a need to strain the spectrum to fit a case onto the side which justifies intervention. In these cases, the Spectrum Approach is susceptible to clear inconsistencies, where one finding of foreign law may be easily susceptible to appeal, but another finding on the same foreign law or point of foreign law is not.
Moreover, the common–civil law distinction emphasised by the Spectrum Approach, the requirement to determine the similarity between foreign and domestic laws, and the two-stage interpretation of the Spectrum Approach in Banca have all brought more complexity than clarity to the court's decision in practice, under which the courts are bound by an artificial restraint to go through an additional stage of reasoning to place cases on the spectrum. This article argues that the scope of appellate review of foreign law depends on the nature of the specific question under foreign law, and whether the domestic court is familiar with the principles and legal concepts of that specific question, without the need to adopt a spectrum-based approach at all. Accordingly, this article submits that the additional stage of reasoning based on the Spectrum Approach is redundant.
The one benefit brought about by the Spectrum Approach might be the added formality in the judgment, whereby the judge states where he believes the case to fall on the spectrum by listing out what evidence, skills and experience were relied on, and the relative weight afforded to them by the judge in coming to his decision. The addition of such a conclusion or formality allows for more transparency and less guesswork by the appellate courts when deciding whether a case falls closer to a question of fact or a question of law.
Thus considered, the goals of the Spectrum Approach can be easily achieved by a flexible, case-sensitive approach – where the trial court decides all questions of foreign law – regardless of analogousness between the foreign law and domestic law – on a case-by-case basis, with the trial judge naturally finding different extents to which he may rely on his own skills and experience, on expert evidence, or on other kinds of foreign legal materials. 92 The appellate courts, too, will not be uncritical in accepting the trial judge's conclusions of questions of foreign law, and are entitled to consider the evidence afresh and form their own view of the cogency of opposing cases, 93 always bearing in mind that the trial judge has the advantage of living through the trial. 94
This article proposes that such a flexible and case-by-case approach should be adopted, and any artificial restraints imposed on the courts should be discarded. This allows courts to exercise their full discretion, subject only to the control of whether the domestic (appellate) courts possess the materials, skills and experience to deal with the specific questions of foreign law raised. This creates far fewer difficulties in application. Whilst the Spectrum Approach might be seen as giving some structure to such discretion, it is submitted that in practice, both approaches achieve the same results: the same guiding principles of appropriateness, fairness and justice apply.
Conclusion
The Spectrum Approach, while providing a somewhat structured framework to address questions of foreign law, introduces further complexities in the judicial decision-making process, without fundamentally addressing the current issues in making and appealing against findings of foreign law. While the Spectrum Approach manages to acknowledge the differing degree of reliance placeable by judges on expert evidence and their own skills and experience based on the analogousness between foreign and domestic legal systems, it is unclear and offers little assistance, particularly to cases that fall in the middle of the spectrum. The Spectrum Approach inserts an additional stage of reasoning which requires conducting a delicate balancing exercise that can lead to inconsistent and ambiguous outcomes, undermining predictability and certainty in judicial processes. These problems remain after the Privy Council's decision in Perry. Moreover, the reading of the Spectrum Approach in Banca, which requires separating findings of foreign law into the two stages of ascertainment and application, gives rise to further complications. Treating these stages independently may distract focus and expand the scope for appellate intervention excessively, contradicting the general practice of judicial restraint. It is argued that a flexible approach which decides questions of foreign law and their appeals on a specific, case-by-case basis, permitting reliance on the full range of materials, skills and experience available to the trial judge and the appellate courts, constitutes a more straightforward, familiar, and effective approach. 95
Footnotes
Acknowledgements
The authors acknowledge the helpful comments received from the two anonymous reviewers.
Funding
Open access costs have been covered under an open access publishing agreement between the University of Melbourne and Sage, facilitated by the Council of Australasian University Librarians (CAUL). The authors received no other financial support for the research, authorship, and/or publication of this article.
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.