Finance litigation update - July 2022

FINANCE LITIGATION UPDATE – JULY 2022 14 The English courts' approach to foreign law: Cassini v Emerald Pasture and Byers v Saudi National Bank Most disputes before the English courts are based on English law. Increasingly, however, courts are resolving disputes governed by foreign law. The Commercial Court Guide, for example, has recently been updated to deal with the 'significant proportion' of trials featuring expert evidence of foreign law. While judges are used to reaching conclusions about which party's expert is correct, the extent to which special considerations apply when the expert opinion relates to the law itself is complex. In this article we consider the two recent decisions from the Court of Appeal in Cassini SAS v Emerald Pasture Designated Activity Company & Ors1 and Byers v The Saudi National Bank (SNB) [2022] EWCA Civ 43 about the process the courts must follow when addressing competing expert opinions on foreign law. Foreign law is treated as a question of fact, to be determined by the trial judge on the basis of the evidence put forward by the parties. In Dexia v Prato2, the court confirmed that the task faced by 1 [2022] EWCA Civ 102 2 Dexia Crediop S.p.A v Comune di Prato [2017] EWCA Civ 428 3 Note, however, in Deutsche Bank v Comune di Busto Arsizio [2021] EWHC 2706 (Comm), the court expressed the view that it is the judge is to determine what the highest available court in the foreign jurisdiction would have decided3. So far, so factual. However, In Parkasho v Singh4, doubt was cast on the extent to which foreign law is just a question of fact. Instead, the court described it as "a question of fact of a peculiar kind". This peculiarity was analysed in Macmillan v Bishopsgate5, where the court identified two different kinds of foreign law: 1. Foreign law involving principles and concepts "unfamiliar to an English lawyer". In this case, the extent to which the judge can draw on their own legal knowledge and training in reaching the decision on foreign law is limited. The judge is effectively confined to analysing the expert evidence. 2. Foreign law involving concepts which are similar to English law. Here, the judge is entitled "and indeed bound" to bring their legal knowledge and training to bear. Instead of just assessing the weight of the expert evidence given, the judge provides their own legal input. open to it to depart from a decision of the highest courts of the country whose law applies. 4 [1968] P 233, 250 5 Macmillan Inc v Bishopsgate Investment Trust (No 4) [1999] CLC 417