Legal Translation of Foreign Laws
Whenever a court is faced with potentially applicable foreign law they will turn to the Rules of Evidence and, in particular, the provisions for judicial notice. Judicial notice is the vehicle to determine the substance of applicable law coming from a different jurisdiction – whether that be a foreign country or a different state.
When the law comes from a foreign country, taking judicial notice will, first and foremost, require a foreign language translation of the legal text into English.
In addition to this foreign language translation, the courts will turn to informal evidence, including affidavits and
treatises, to prove what the foreign law is. This too will likely require the use of both foreign language translations and, in some cases, foreign language court interpreters to interpret the testimony of experts.
Further, whenever foreign law is to be introduced, formal notice to the opposing side is required. Upon the giving of formal notice, the opposing side has the right to be heard, including the introduction of their own informal evidence. It is also important to keep in mind that the issue of allowing foreign law into evidence is a decision for the judge, not the jury, and thus is reviewable as an issue of law.
The easiest way to seek judicial notice of foreign law is via summary judgment, which allows the issue to be decided efficiently and summarily while ensuring that all notice requirements are satisfied. If, perchance, you find yourself opposing a summary judgment of this type, one should not assume that traditional summary judgment standards apply. Often times judicial notice of foreign law will be seen as a hybrid rule that requires the presentation of evidence, but is still considered a legal determination and not an issue of fact. Therefore, the proper standard of defense is whether or not the trial court, in reviewing the conflicting evidence about the foreign law, reached a proper legal conclusion as to its content.
Requesting Judicial Notice
The process of requesting judicial notice of a foreign law is a relatively straight forward process. At least 30 days before trial one must give notice of one’s intent to request the court to take judicial notice of a foreign law. Along with this notice one must provide any and all materials and sources that will be used as proof of the foreign law. If a legal translation of the foreign law is required, the original foreign language text must also be provided.
Unlike other areas of evidence law, proof of foreign law may be informal, meaning that one can include materials that would otherwise be inadmissible under the rules of evidence. This includes affidavits and treatises. More so, the judge can refer to additional sources not provided by either side, however he or she must provide both parties with notice of the intent to use outside sources, along with an opportunity to be heard on the matter.
When judicial notice is done correctly, the appellate court will presume that the law of the foreign jurisdiction is the same as that of the home jurisdiction.