Originally from The Law and Practice of International Arbitration: Essays in Honor of John Fellas – Preview Page

1. INTRODUCTION 

John Fellas has led the way as an independent arbitrator made for the modern world of dispute resolution. Educated in the United Kingdom but having spent much of his career in New York, this Englishman turned immigrant in New York epitomises the cross-cultural understanding demanded of international arbitrators in today’s arbitral society. Reflective of this journey, John navigates issues of foreign law with an appreciation of the conflicts of law issues that may arise and, at the same time, with an understanding of the importance of the international context and what is expected of adjudicators in such a forum. 

John’s command of what is expected of his role is unmatched. With the good fortune of being chaired by John in a matter several years ago, I had an opportunity to witness his approach to the proceedings, including an innate ability to steadfastly ease parties and his tribunal colleagues through the cross-legal and cultural facets of the arbitration. It is in this spirit that I address the principles of a default rule for foreign law and a presumption of similarity in the context of international arbitration. 

2. CONTEXT AND OVERVIEW 

As one of the leading forums for international commercial disputes, English courts frequently encounter issues of foreign law. However, the underlying foreign law is not always pleaded or proven to the satisfaction of the court.2 Rather, the court will from time to time find itself in a position where the applicable foreign law was either not pleaded or not sufficiently proved as a matter of factual evidence. The question then arises how the court shall apply the law governing a claim in the absence of satisfactory evidence thereon.