LONDON (FIRMS): An introduction to Private Wealth Law (Foreign Expertise)

Selecting the Ideal Foreign Law Expert for Legal Proceedings in England and Wales

Introduction

In recent years, in the United Kingdom, there has been a substantial increase in the number of legal proceedings concerning aspects of foreign law, and Russian law in particular.

Matters heard before the courts of England and Wales often involve various legal areas, including contract law, insurance law, recognition and enforcement of foreign law judgements in Russia, cross-border bankruptcy, application for anti-suit injunctions to stay proceedings in Russia and many others. This naturally entails a substantial increase in demand for foreign law expert advice in these areas.

Navigating the complexities of foreign legal frameworks can be challenging. It is, therefore, crucial to ensure suitability of a potential foreign law expert and to avoid common legal pitfalls.

In this article we summarise our in-depth experience as experts on Russian law in numerous legal proceedings in England and Wales and internationally, and provide general guidance on how to find the most suitable foreign law expert for your case.

Understanding the Need for a Foreign Law Expert

Engaging a foreign law expert is often essential in legal proceedings that involve complex cross-border legal issues, particularly for the following:

• to ensure accurate legal interpretation by providing precise analysis of foreign law; and
• to assist in understanding the framework of foreign legal system and relevant legal principles.

Ultimately, the role of a foreign law expert is to assist a court and parties in understanding how foreign law regulates the matters at stake, particularly when it significantly differs from a common law jurisdiction.

Matters to consider

Legal Requirements

When selecting a foreign law expert, the primary consideration is legal requirements, which are specified under Section 4(1) of the Civil Evidence Act 1972. According to this, an expert must be suitably qualified to provide evidence of foreign law based on their knowledge or experience.

Knowledge

As a foreign law expert should have a required expertise, it is crucial to ensure that a potential expert has a solid academic background in the relevant jurisdiction which can be evidenced by a degree certificate or a diploma.

Unlike in the UK, in Russia, admission to practicing law does not require a licence or membership in a professional legal organisation. A law degree from a university is sufficient to qualify as a lawyer, enabling practice in all Russian courts on most matters.

Therefore, in addition to a degree certificate or a diploma no further proof of qualification would be required when you are engaging a Russian law expert.

Professional Experience

Alternatively, an expert’s competence to provide evidence of foreign law could be based on their experience, which is in some cases is considered more suitable than having only academic qualifications. This is because a professional who has never practised or have not practised for a long time may lack understanding of how law is actually applied and interpreted by courts of a relevant jurisdiction.

Engaging a legal practitioner with a solid experience rather than a full-time academic as a foreign law expert would help to avoid hypothetical views which are unlikely to assist a judge in understanding how foreign law operates.

Therefore, while expert’s competence to provide foreign law evidence to a court might be based either on their knowledge or experience, an ideal candidate in our view should have both.

This is specifically important for Russian law experts since legal profession in Russia is not regulated, apart from advocates who form a small (in numbers) part of the Russian legal community.

Practical Considerations

Understanding of Procedural Rules in England and Wales

A competent expert should have a thorough understanding of their duties to a court. Notably, an expert should be familiar with procedural rules governing the provision of foreign law evidence.

It is essential for experts to refrain from the common error of applying law to facts in their report and to understand that their role is to state the law, leaving its application to the discretion of a court. At the same time, an expert must understand that they provide explanation of the law for a specific situation, and therefore outline all details which may be relevant for this situation.

English Language Skills

Although fluency in English is not a requirement for producing an expert report on foreign law, it is highly advisable to engage an expert with advanced English language skills.

This offers several advantages, namely:

• to enable an expert to deliver a coherent and in-depth opinions on foreign law issues;
• to facilitate participation in joint expert meetings and correct translation of a joint expert memorandum if necessary; and
• to avoid potential misinterpretation of legal concepts and to eliminate the need for translation services during oral testimony.

Operation within a Regulated Market

It also should be considered whether a foreign law expert operates within a regulated market. This includes ensuring professional indemnity insurance, compliance with the relevant regulations and GDPR, adherence to legal privilege and confidentiality rules, conflict of interest checks, and access to convenient payment facilities.

It is particularly important for providing expertise in Russian law and the laws of other CIS countries (where the legal market is mostly unregulated) as engaging local experts may expose solicitors and their clients to the risk of confidentiality breaches, conflicts of interests and hurdles with such routine matters as payment for expert’s services.

Useful Tips for Choosing a Foreign Law Expert

Based on the above, the most suitable foreign law expert is the one who is fluent in English, operating within a regulated market, with a degree and practical experience in the relevant field of foreign law, who has previously provided evidence of foreign law in England and Wales.

Selecting a suitable candidate involves thorough research and careful consideration of their qualifications, experience, and ability to communicate effectively.

We recommend to consider an expert’s standing within the legal community by reviewing publicly available client testimonials, case studies, and feedback to assess their reliability and effectiveness. Carrying out a legal database search on the British and Irish Legal Information Institute’s website (www.bailii.org) can provide valuable insights into an expert’s work.

Another necessary step is to arrange an interview with a potential expert. This will allow to evaluate an expert’s expertise in the subject and their ability to explain complex legal concepts.  

We also recommended to inquire whether an expert conducts conflict of interest checks, adheres to the same confidentiality standards as adopted in England and Wales and has professional indemnity insurance.

In addition, it is helpful to understand whether an expert has sufficient availability to dedicate time to all scope of work on a relevant case. We suggest inquiring whether an expert works alongside a qualified legal team or is a “lone warrior”.

Finally, from our experience, dual-qualified experts may be particularly valuable when explaining the court complex matters of foreign law.