Four problems in appellate review of foreign law: Evaluating the Spectrum Approach

This article critically evaluates the Spectrum Approach as applied in the appellate review of findings of foreign law. The Spectrum Approach posits that the degree of deference to trial judges’ determinations of foreign law depends on the analogousness of the foreign legal system to the domestic legal system, situating cases on a spectrum between questions of fact (for dissimilar systems) and questions of law (for closely aligned systems). While the Spectrum Approach attempts to offer a structured framework, this article identifies four key deficiencies with the Approach: (1) over-emphasis on the common–civil law dichotomy, (2) circularity in assessing ‘similarity’ between legal systems, (3) artificial separation in the ascertainment and application of foreign law, and (4) indeterminacy for cases occupying the middle of the spectrum. This article argues that the Spectrum Approach involves unnecessary inconsistencies and complexities, which the Privy Council did not adequately address in its decision of Perry v Lopag Trust Reg . This article advocates for a flexible, context-sensitive adjudication without any rigid categorisation or sequential reasoning, ensuring consistency with principles of judicial restraint and fairness. This debate has important implications on the treatment of foreign law in domestic courts amid increasing cross-border litigation.