Rome II and the proof of foreign law in England and Wales

Categories: Family Law
Typology: Case Law

On 3rd July 2015, the Court of Appeal of England and Wales delivered its decision in the case between Lady Christine Brownlie and Four Seasons Holdings Inc. ([2015] EWCA Civ 665), which was about a dramatic traffic accident in Egypt and its consequences.

More exactly, the case arose out of an excursion which Lady Brownlie, her husband (Sir Ian Brownlie) and close family undertook in Egypt in 2010. Both spouses were citizens and residents of the UK. Lady Brownlie was injured and her husband was tragically killed in a motor accident while on this excursion. The excursion was organised by the concierge of the Four Seasons Hotel Cairo at Nile Plaza in Egypt. Lady Brownlie returned after the accident to the UK. She brought proceedings in England to recover damages in contract and also in tort. She has several tort claims, in particular one for her own injuries and one for her loss as a dependent of Sir Ian Brownlie. The case raised multiple questions and we will only focus on one: the application of foreign law.

The classical principle is that foreign law is presumed to be the same as English Law. It is indeed well-known that England sits at one of the extreme ends when it comes to the application of foreign law, with Germany on the opposite side. The question was whether the relatively new Rome II Regulation (Regulation (EC) 864/2007 on the law applicable to non-contractual obligations) would lead the English Courts to revisit this principle: "The remaining question is whether this court can, under Rome II, in the absence of proof as to Egyptian law, apply the presumption that Egyptian law is the same as English law" (paragraph 88).

The judge considered that there is no indication in Rome II as to what the court must do if there is no evidence as to foreign law. She added that in a common law system, such as that in England and Wales, the court does not have any inquisitorial function and cannot therefore conduct an inquiry itself as to foreign law. Even if it did so it might not come to the right conclusion. Moreover, to amend the traditional principle would mean that the court could not act on any agreement of the parties as to what the foreign law was or any agreement by the parties not to plead foreign law. Therefore, Lady Justice Arden declared that she "reject[s] Mr Palmer's submissions that the presumption as to foreign law being the same as English law does not apply" (paragraph 89 in fine). In other words, Rome II has no impact whatsoever on the traditional position of the English Courts regarding the application of foreign law and, in the case at hand, Egyptian Law is therefore (presumed) the same as English Law.  

This decision means that, despite the existence (or appearance?) of uniform conflict of laws rules (Rome II), European courts will end up applying various solutions to similar cases and forum-shopping will in no way be extinct.

(Altalex, 9 November 2015. Article by Emmanuel Guinchard)


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