English Law in Scottish Courts
There can be little doubt that English law is probably the most popular European choice of law in commercial contracts (or in underlying Terms and Conditions upon which contracts are based). Often such a choice of law clause is accompanied by a jurisdiction clause conferring jurisdiction on the English courts (It should be borne in mind that such a jurisdiction clause is not always effective- for example, in a consumer contract where the consumer lives outside of England). However, there are a good number of occasions where a contract based on English law is litigated before the Scottish courts. That could be because there has been no agreement on other courts hearing the dispute, or parties agree that it is convenient to run the litigation in Scotland (where is will often be significantly cheaper to run the case to a conclusion than in England).
Non-Scottish lawyers are sometimes interested in how the Scottish courts will handle such a dispute. Whether it is English law concerned or some other “foreign” law, the Scottish courts will begin by assuming that the law in the other jurisdiction is the same as in Scotland. The basic position is that the court will approach matters as if they are dealing with a Scots Law contract. If either party wishes to argue that the position is different under the other applicable jurisidiction, they have to plead that in their written pleadings; particularly setting out what the legal position is, for example, under English Law. Unless there is agreement on the legal position on the other jurisidiction between the parties to the litigation, then the foreign law question becomes a matter of expert evidence at any Proof (the Scottish equivalent to a final evidential hearing or trial). In other words, a suitably expert and qualified lawyer from the other jurisidiction has to be instructed as an expert witness, usually to provide an expert report, and if necessary give evidence on the legal position in the other jurisidiction. As normal, the expert witness’ overriding duty is to assist the court, not to the party instructing them.
Sometimes foreign law points are costly diversions that do not add to the case. On the other hand they are sometimes points taken properly that can change the outcome of a litigation. It is vital in such cases that the Scots Lawyers in such cases have good international contacts to get initial advice, and find the right experts if necessary. At BBM we are very confident about our cross-border connections and are glad to try to help in such cases!
Eric Baijal is a commercial and insolvency litigator, and BBM’s Managing Director
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