TNAG-2162-FCO40-3093-Legal-matters-between-Hong-Kong-and-China-1990 — Page 58

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CONSULAR

VOLUME 3 PART 1

5.1

CHAPTER 5

LEGAL ADVICE AND STATEMENT OF LAW

REQUESTS

FROM

FOREIGN

5.1

-

5.3

AUTHORITIES AND PRIVATE PERSONS

Officers are from time to time asked to provide the following:

Certificates on English law for use in foreign courts

Statements of English law for the information of foreign Governments or authorities in the country where they exercise their functions

(a)

(b)

(c)

Legal advice to companies or private persons

5.2

5.2.1

5.2.2

5.3

5.3.1

The following paragraphs set out the action that officers should take on these three distinct requests.

PROVIDING

CERTIFICATES ON ENGLISH LAW

HT KANTO CAME

It is for the foreign court which requires the evidence of English law to describe what evidence it requires and in what manner it should be provided. The rules under which the foreign court operates may prescribe official statements from foreign officers as being appropriate. Except for cases where posts have been authorised to issue stock certificates (as to which see paragraph 5.2.2) officers must always refer requests for these certificates to Nationality and Treaty Department and if it is decided to accede to the request, they will be instructed as to the exact terms of the certificate which they should give. For the information and guidance of officers referring the requests, it may be stated that the Department in deciding whether to accede to a request will, amongst other things, consider the following points:

(a)

(b)

Whether refusal of the certificate will impede the cause of justice because the foreign court will not accept evidence of English law from any other quarter, or if it does so, whether it is unlikely to be able to obtain a satisfactory statement.

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Whether the issue on which a certificate is desired is a simple one on which English law is not seriously in doubt, viz., it may happen that the answer is easily given by reference to a particular section of an English statute, or it may be that a certificate is requested for a point on which it is difficult to state the law with certainty. Or again it may be that it is impracticable to frame a certificate which may not be misleading without going very carefully into the acts of a complicated piece of litigation, and that the foreign authorities in framing their request for a certificate have not really presented the issue correctly in the light of all the facts of the litigation in question.

In cases where there is a regularly recurring demand, and the law is straightforward, posts may issue certificates of law in standard form. Authority to issue such certificates will be given by Nationality and Treaty Department from time to time and must be closely monitored. Any requests for certificates deviating from the norm must be referred. If the original authority is more than 5 years old the post should seek its renewal, making a brief report on the frequency of requests for such certificates and to what extent British nationals would be inconvenienced if certificates were not granted.

PROVIDING

STATEMENTS OF ENGLISH LAW

When requested to give statements of English law for the information of foreign Governments or authorities in the country where they exercise their functions, officers must refer all such requests to the Department. Such requests will, as a rule, be acceded to unless the burden of doing so is excessive.

JUNE 1989

5.1