WHO PLEADS FOREIGN LAW AND WHY?
After cases like Zhang, one could well imagine that a flood of plaintiffs have pleaded and proven the lex loci delicti to obtain judgment on the merits in claims arising out of foreign torts. The reality, though, is very different: since they have no obligation to do so, plaintiffs almost never invoke foreign law, and the application of foreign law almost never results in a judgment on the merits. Moreover, tort is scarcely the only type of foreign law that arises. While plaintiffs sometimes succeed in cases where foreign law governs some issues, it seems exceptionally rare that they ever do so in a case wholly governed by foreign law. Rather, the typical assertion of foreign law is defensive and interlocutory. The recent case law provides many examples. At the outset, foreign law might be invoked to justify a stay of proceedings on the grounds of forum non conveniens. Although the High Court has clearly stated that ‘[a]n Australian court cannot be a clearly inappropriate forum merely
