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From time to time, American courts, which are relatively isolated from foreign influence, consider “civilized standards” and “views that have been expressed by . . . other nations”[1] to support their decisions.  Even though the search for solutions to domestic problems beyond national borders is still a novelty for the US judiciary, increasing communications between international and domestic law and the ongoing globalization of the latter require lawyers around the world to study foreign judicial practice and consider it when resolving domestic legal disputes.

This study reviews approaches of judges to foreign judicial experience in thirteen different countries belonging to common law, civil law, and mixed law legal systems, and analyzes to what degree and for what purpose judges cite laws of foreign countries and rulings of their colleagues abroad.  Based on doctrinal analysis of national legislation, all reports explore specifics of foreign legal borrowings in the individual countries surveyed.  Authors of the country surveys demonstrate how different each jurisdiction is in assessing the possibility of relying on foreign law resources and how the interpretation of foreign court rulings often depends on the constitutional principles accepted by the country or by one of its constituent components—for example, in Quebec, Canada.

Countries surveyed in this report can be divided into four groups. 

The first group includes four civil law jurisdictions—Argentina, Brazil, France, and Germany—where foreign laws and court rulings can be used as examples for judicial interpretation of a national law or as preparatory material for judges when they form their opinions in regard to a particular case.  In these jurisdictions, foreign law is not binding and does not become a part of national legislation.  The authors of these country surveys found that the role of foreign law in these nations is defined by existing constitutional doctrine and legal traditions.  For example, in Argentina, where the Supreme Court relies on analysis prepared by the Foreign Research and Reference Institute, which was established within the Court for the purpose of providing research services on foreign court decisions, scholarly works, and legislation, foreign court rulings can be used for judicial argumentation if the Institute’s analysis confirms that “the foreign law to be used has a close similarity to the national law,” that the “facts in the foreign court decision coincide with the facts of the case before the national judge,” and that the “concept of justice in the foreign jurisdiction is similar to the one in its own court.”

The Argentinean example is interesting because this country has a very strong judicial tradition.  Because the Argentinean National Constitution followed the constitutional model of the United States, the influence of American precedents is strongest in the field of constitutional relations.  In civil and commercial cases, the courts consult rulings of French, German, and Italian courts more often because these countries impacted the codification of Argentinean legislation.

In our report, this group of jurisdictions representing the civil law family is joined by Israel, which has a mixed legal system based on civil and common law principles.  Regardless of the fact that foreign law is widely cited by Israeli courts, and especially by the Supreme Court, the cited laws do not become binding and serve mostly to inspire judges and provide analogies.  Foreign constitutions were frequently cited by Israeli judges for interpretational purposes before 1995, when the Supreme Court President emphasized the merely comparative purpose of foreign law consideration, because each constitution, he stated, reflects the unique specifics of each individual nation.

Common law or mixed jurisdictions—Canada, Great Britain, India, Israel, New Zealand, and South Africa—constitute a second group characterized by direct borrowings from foreign law.  In these countries, foreign precedent is considered when national legislation is analyzed or a case is adjudicated. Countries of the British Commonwealth have the most developed practice of applying foreign judgments.  Among them, “Canada was known as a country where ‘foreign law has had a major impact on domestic judgments.’ ”  Until 1982, the most cited foreign court rulings were those of British courts; however, after adoption of the Canadian Charter of Rights and Freedoms, interest moved toward American case law under the Bill of Rights, and American cases are now cited approximately twice as often as those of all Commonwealth countries combined.  In India, where the influence of British and American law is significant, judges traditionally rely on foreign judgments when interpreting national laws and international treaties, especially in such areas as protection of privacy, human rights, and the environment.  Court rulings of the British Commonwealth countries served as a basis for all major Indian Supreme Court decisions, which defined the interpretation of the Indian Constitution. The experience of New Zealand demonstrates that in times when legal relations are getting more and more complicated, judges are trying to find in foreign judgments answers to questions that have not yet been resolved by national legislation.  A steady decrease of British legal influence and the adoption of a growing number of other foreign and international law provisions in this country demonstrate strong ties between legal development and ongoing economic, political, social, and cultural changes,and show that such factors as a common language, similarities in legal systems, and a joint historic background do not play such an important role as before.

Mexico and Nicaragua, both of which follow the civil law tradition, constitute a third group among the nations surveyed in this report, both demonstrating a unique approach to the issue.  In these countries, foreign law can be applied—in Nicaragua when national laws or all other formal sources of law, including customary law, are absent,and in Mexico when domestic law specifically provides for its application. However, no cases were located in either country where such application has occurred.

The fourth way of applying foreign law is illustrated by those countries where judges are familiar with foreign methods of legal interpretation and apply their knowledge of foreign legal doctrines in their domestic practice, but do not mention foreign law directly.  In this report, China is such a country.  A nation that continues to recognize its legal system as socialist relies on its national legislation and not foreign court rulings.  In 1986 and 2009, the Supreme People’s Court of China issued directives to lower courts on what should be cited in these courts’ rulings and how citations should be presented.  Foreign laws and judicial decisions were absent from this list.  However, foreign influence can be found in some rulings of Chinese judges.  The China survey included in this report reviews two defamation cases adjudicated in Chinese courts in 2002 and 2003 where foreign law played a significant role.  Even though court documents did not mention foreign legal sources directly, the court actually recognized “concepts borrowed from the body of law surrounding the first amendment of the U.S. Constitution.”

These four approaches to comparative law by the courts of foreign countries illustrate the different ways in which foreign law can impact domestic judgments and the varied methods used by national courts in the application of foreign law and foreign court decisions.  Because problems resolved by national courts are no longer unique and specific to those countries only and because domestic legislation in individual nations is not always enacted in time to reflect ongoing global changes in philosophy, politics, the economy, and social relations, the role of foreign law and its usage by courts around the globe is increasing dramatically.  Reliance on foreign law does not mean directly borrowing or applying such law, however.  As the discussion of the surveyed countries demonstrates, it is instead an open exchange of ideas aimed at preserving and enriching the corpus of national law.

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Prepared by Peter Roudik
Director of Legal Research
March 2010
 

[1] See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 830 & nn.31, 34 (1988) (recognizing that laws, judicial practice, and statistics of other countries can be used as guidelines in a court’s decision making).

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Last Updated: 09/16/2014