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Expert Evidence & Foreign Law.

Brazil to the Court of Session, Expert Evidence & Foreign Law

Fergus Whyte 2

A recent case from the Commercial Court of the Court of Session serves as a useful reminder of the international aspects of commercial litigation and of the complexities involved in pleading foreign law and hearing expert evidence about it.

In Mayfly Gwr Offshore Containers Industria E Comercio Ltda v Swire Oilfield Services Do Brasil Ltda [2022] CSOH 26, Lord Braid had to consider the question of whether a Brazilian law contract (which was between the Pursuer and a related company of the Defender) had rescinded or discharged an earlier contract between the Parties which was subject to Scots law and the exclusive jurisdiction of the Court of Session. The Lord Ordinary heard evidence from two Brazilian law experts as well as from witnesses of fact in order to allow him to determine what the terms of the Brazilian contract actually meant and which parties it was meant to bind.

The case is a useful reminder, following on from the Inner House decision in Ted Jacob Engineering Group v Morrison 2019 SC 487, of the respective roles of the judge and the experts in such a proceeding. As Lord Braid noted in his opinion (at [21]):

… this court must ascertain, on the expert evidence, what the relevant principles of the foreign law are, and then apply them to the facts of the case. It must determine how a foreign court would be likely to decide the issues of law that are relevant to the particular facts. Applying that to the present case, insofar as the experts disagree, my task is to examine their competing opinions and decide for myself what Brazilian law is, as it would be applied by a Brazilian court.

The Pursuer was ultimately successful in its argument that as a matter of the law of privity of contract in Brazil (“efeitos relativos”), the second contract could not affect the original Scots law agreement between the Parties. Even if it had, the Lord Ordinary was not convinced that a proper interpretation of the Brazilian contract meant that it was intended to rescind that earlier agreement.

Fergus Whyte, of Arnot Manderson Advocates, acted as junior counsel for the Pursuer in this matter.