Supreme Court of the State of Delaware, Germaninvestments AG, v. Allomet Corp., Docket No. 291, 2019

Foreign Law

Burden of Proof

Delaware Law

Saudi Arabian Law

Islamic Law

Ijtihad

Hanbali Guild

Court of Chancery Rule 44.1 provides:
A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The Court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 43. The Court’s determination shall be treated as a ruling on a question of law.

This holding is consistent with decisions of the Court of Chancery and the Superior Court. See, e.g., Vichi v. Koninklijke Philips Elecs., N.V., 85 A.3d 725, 765 (Del. Ch. 2014) (“In cases where foreign law may be applicable, the party seeking the application of foreign law has the burden of not only raising the issue that foreign law applies, but also the burden of adequately proving the substance of foreign law.” (citation and internal quotation marks omitted)); see also Rep. of Pan. v. Am. Tobacco Co., 2006 WL 1933740, at *4 (Del. Super. June 23, 2006), aff’d sub nom. State of São Paulo of Federative Rep. of Braz. v. Am. Tobacco Co., 919 A.2d 1116 (Del. 2007) (“In order for the Court to consider the application of foreign law, the party seeking the application of foreign law has the burden of not only raising the issue that foreign law applies, but also the burden of adequately proving the substance of foreign law.”); 9 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 44.1.04[1] (3d ed. 2006) (“The party that wishes to rely on foreign law has the responsibility of demonstrating its content.”); Jeffrey F. Ghent, Annotation, Pleading and Proof of Law of Foreign Country, 75 A.L.R.3d 177, § I.2[a] (1977) (“the courts appear to be in agreement on the general rule that the burden of proving the law of a foreign country is on the party relying on it”).

We sympathize with the trial judge as there are very few decisions from this Court that can serve as a reference in this area. Generally, the process by which foreign law is determined is necessarily context-specific, and trial judges have wide latitude in determining what evidence to consider and in what form. Even so, that latitude is not unbounded. We highlight a few decisions to discern some general guideposts.

Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochemical Co. (866 A.2d 1 (Del. 2005)), a case mentioned by the Vice Chancellor, is one such case where this Court approved the process by which the trial judge ascertained the substance of the foreign law at issue. There, this Court considered whether the Superior Court had engaged in a proper methodology and analytical process to determine Saudi Arabian law. Appellant, Saudi Basic Industries Corporation (“SABIC”) argued that the trial court, although purporting to employ the methodology that a Saudi judge would follow to determine the applicable Saudi law, ijtihad, in fact invoked ijtihad merely as an after-the-fact rationalization for foreign law rulings that were essentially arbitrary and unprincipled.

This Court rejected those contentions because the record clearly established that the trial judge “went to extraordinary lengths to understand the applicable Saudi law and to make rulings that were consistent with the numerous Saudi law sources presented to her.” We found that the trial judge was keenly mindful of key distinctive features of Saudi law and the problems that it created for defining the elements of, and remedies for, ghasb (usurpation) and how to instruct the jury on these issues. As an example of such distinctive features, Islamic law does not embrace the common law system of binding precedent and stare decisis. In Saudi Arabia, judicial decisions are not in themselves a source of law, and with minor exceptions, court decisions in Saudi Arabia are not published or even open to public inspection. Instead of relying upon statutes or decisional precedent to discern the applicable law, Saudi judges use scholarly treatises as guides to identify a spectrum of possibilities on a given question, as opposed to a single correct answer. Thus, the critical inquiry was whether the proper analytical procedures (or ijtihad) were followed in reaching the results.

We found that the trial judge properly recognized the proper analytical procedures in reaching the result. 76 The trial judge made “exceptional efforts to ensure that she was fully informed of the Hanbali teachings upon which to ground her legal rulings.”77 Before trial, the parties presented the trial judge with seven reports from four Saudi law experts (two from each side), as well as each expert’s lengthy deposition. Perceiving a conflict in the experts’ opinions, the trial judge retained an independent expert and obtained his advice on the critical issues. This expert prepared an initial report, a supplemental report, and was deposed for a full day. After reviewing nine reports and over one thousand pages of deposition testimony, the trial judge held a day-long pre-trial hearing to permit the parties to present live testimony of the independent expert, among others. The court considered two additional reports post- trial. On that record, this Court concluded that there was no basis for SABIC to contend that the trial court’s analytical process was arbitrary, unprincipled, or lawless.


76 For example, the trial judge stated that “when faced with the daunting task of determining the elements of ghasb and the damages available for this tort, the Court, weighing the credibility of each Saudi law expert, exercised, as best it could under the circumstances, ijtihad, to reach the ‘right’ result.” Id. at 31. 

77 Id. at 31. The Hanbali is an Islamic law guild or school of thought. “In Saudi Arabia, the judges are instructed to rule exclusively in accordance with the teaching of the Hanbali guild.” Id. at 30.

(Supreme Court of the State of Delaware, January 27, 2020, Germaninvestments AG, v. Allomet Corp., Docket No. 291, 2019)