PREVIOUS LEXICON COLUMNS have examined issues concerning expert evidence (see China Business Law Journal, volume 10, issue 4: Expert evidence) and culture in the courtroom (see volume 11, issue 3: Culture in the courtroom).
The following is an edited version of a presentation recently delivered by the author on issues relating to the impact of culture and language in civil and commercial disputes. The presentation was delivered to a New Zealand seminar that examined Asian lawyers in the legal profession and Asian parties in courts. The seminar was hosted by New Zealand Asian Lawyers and the New Zealand Law Society, and was attended by the Chief Justice of New Zealand, Helen Winkmann.
The role of expert witnesses
At the outset, I should point out that any evidence that I have provided as an expert witness on culturally and linguistically diverse issues has been provided as part of my role as an expert witness on foreign law, including Chinese law in Australian and New Zealand courts, and as an expert witness on Australian law in foreign courts.
I have done a significant amount of expert evidence work across a range of disputes and jurisdictions. Much of my work has involved providing expert advice on foreign law and the intersection of foreign law with domestic law.
In addition to providing expert reports for proceedings in courts in Australia and New Zealand, I have also acted as an expert witness in a civil law jurisdiction. This experience raises some interesting distinctions between common law jurisdictions and civil law jurisdictions, and I will make some observations about this later.
Another important point to note is that I am comfortable commenting on culture and language within a legal context, such as how the words that parties have used in their contracts, and how the evidence in relation to their contractual relationship, might illuminate their intention.
I am less comfortable providing an opinion on culture in a non-legal context, or in a vacuum, because an examination of culture and language needs to be context-based and, for me, my expertise is anchored in the legal context.
Some years ago, I was asked if I could provide cultural evidence in a criminal case in which a young Asian student in Melbourne was alleged to have dishonestly obtained money to fund his gambling activities. As part of the process of identifying mitigating circumstances for sentencing purposes, the defendant argued that he had gambled in order to raise funds to repay a loan his parents had provided for his education fees, that he had been under pressure from his parents to do well and to pass his exams, and that cultural factors were relevant in explaining his conduct. I declined the engagement because I did not consider myself qualified to comment on cultural issues in what was essentially a non-legal context.
The relevance of culture
A threshold question that always must be considered is whether culture is relevant and, if so, how. In this regard, I am reminded of comments made by Justice Emilios Kyrou, now a Federal Court judge and President of the Administrative Appeals Tribunal in Australia, recognising the need for the judiciary to develop a “mental red-flag cultural alert system, which gives [them] a sense of when a cultural dimension may be present so that they may actively consider what, if anything, is to be done about it”. An important point arising out of these comments is that just as culture may be relevant in assessing evidence, it may not be relevant at all.
I also think it is equally important for solicitors and counsel to develop a mental red-flag cultural alert system so that they, too, are alert to when culture might be relevant in assessing evidence and when it might not be relevant at all.
In my experience, we often use the word “culture” and term “cultural differences” in situations where the conduct of the parties and the language they have used to describe their contractual relationship are not easily explained or understood from the perspective of the dominant culture.
In reality, however, more specific factors are often in play. These factors include differences in the use of language and differences in relation to legal and business practices and concepts. I cannot emphasise enough the potential impact of these factors, particularly language.
In the case of disputes involving parties from Asia, the difficulty in identifying and understanding these differences is often compounded by the lack of formal documentation, including contracts, and reliable contemporaneous documentary evidence.
Therefore, I would suggest that the task of an expert witness is to identify these differences and determine whether the cause is related to “culture” as that term is broadly understood or, instead, whether the cause is related to factors that may be specific to the case and the parties in dispute, such as language and business practices or customs.
In this sense, the process of determining the relevance and admissibility of evidence in disputes involving culturally and linguistically diverse parties should be no different from the process that would arise in any other context.
The key issue, however, is identifying and understanding the context in which the parties entered into their commercial relationship, and avoiding any assumptions or drawing any conclusions based on a “dominant culture” perspective or a common law-centric perspective. This is where experts have a role to play.
Cases where culture and language were relevant
Earlier this year, I was involved as an expert witness in a matter that ended up settling. The dispute concerned a business in Australia that engaged in activity that is referred to in Chinese as “daigou” (代购). This occurs when someone outside China buys goods for someone who lives in China.
The person who buys the goods and arranges for their export to China acts as the purchaser’s agent instead of an agent of the seller or exporter. This type of business has been extremely common – and extremely profitable – in relation to goods such as milk products and infant formula.
The core issue in the dispute was whether the relationship between the two parties who carried out the business had been in the nature of an employer-employee relationship, based on the fact that only one of the parties formally owned the companies through which the business was carried out, or whether the relationship had been in the nature of a partnership.
The nature of the relationship between the two parties was important in determining whether the parties intended to share profit. As is often the case, there were no written contracts to provide evidence of the nature of their contractual relationship. Instead, the arrangements had been negotiated orally in Chinese, and the only recorded evidence of the negotiations were transcripts of WeChat conversations.
Of particularly relevance was that both parties had referred, in Chinese, to the business as “our company”, or 咱们的公司. In addition, and this is a point that had not previously been identified by any of the parties or their lawyers, my expert report noted that the Chinese word the parties had used for “our” (咱们的) was different from the formal word for “our” in Chinese; namely, women (我们的).
When used by people from certain parts of China (including the northern part), the word zanmen (咱们) is normally inclusive of the listener. Accordingly, when referring to “our company”, the speaker is likely to be referring to the company owned by both the speaker and the person to whom the speaker is communicating.
On the other hand, if when one employee of a company were talking to another employee about their company, they would likely usually use the formal word to refer to “our company”; namely, womende gongsi (我们的公司), instead of the term zanmende gongsi. In my opinion, this reinforced the possibility that when each of the parties used the term zanmende gongsi, they were referring to the business owned by both of them in a general sense and not a specific company, or a company that was owned by one of them and not by the other.
This is an example of something that might primarily be described as a language issue. However, there was also a cultural dimension in terms of the use of language by people from certain parts of China. If the matter had gone to trial, I am sure that the experts would have been cross-examined on this issue.
Another interesting fact in this matter was that the two parties had referred to each other as “brothers”, or xiongdi (兄弟) and the question arose as to what the use of this term may have revealed about the relationship between the parties. My expert report noted that this term was used in a variety of contexts, including blood relatives and people “with a deep friendship”.
The use of the term did not necessarily offer any insights beyond that. However, in my opinion, its use did suggest that the relationship between the parties had not been a hierarchical one, and was less likely to have involved a subordinate relationship such as an employer-employee relationship.
The process of engaging expert witnesses
I would now like to comment on a few issues relating to the process of engaging expert witnesses.
First, by necessity, the evidence that an expert witness on foreign law provides depends on the questions that the expert witness is asked to consider. It is therefore important to ensure the expert witness is comfortable with the nature of the questions the instructing lawyer proposes to ask, and whether they provide sufficient scope to deal with any issues relating to broader factors such as culture and language. And as I have previously noted, it is important for an expert witness on foreign law to locate any culture-based evidence within the broader legal context.
A related issue to bear in mind is the principle at common law that an expert witness cannot provide an opinion on questions that the court has to decide. In other words, an expert witness cannot provide an opinion on how the court should apply the evidence in deciding the substantive issues in dispute between the parties.
Any such opinion is vulnerable to being challenged by the other side on the ground that it is inadmissible. This issue sometimes requires a degree of care on the part of the expert, particularly an expert on foreign law, and can usually be managed through the appropriate use of language.
As I mentioned earlier, I have been engaged as an expert witness on foreign law in both common law and civil law jurisdictions. In civil law jurisdictions, foreign law is treated as a matter of law and not a matter of fact. As a result, unlike the position in common law jurisdictions, foreign law is not something that has to be proved by expert evidence tendered by the parties. Instead, the issues under foreign law are determined by the court.
In the civil law jurisdiction in which I was engaged as an expert witness on Australian law, I was engaged by the court itself. This required a bit of work on my part in terms of identifying the scope of the issues on which I should report and the questions the court should ask me.
By comparison with the position in common law jurisdictions where the expert witness is engaged by the parties, it was a much more open-ended exercise in which I did in fact have to think about how the court would apply the law to decide the substantive issues in dispute between the parties.
A second process-related issue I should mention is the importance of adopting an evidence-based approach in providing an expert report on culture and language issues. Just as it is important to provide supporting evidence in relation to technical legal issues, it is important to provide supporting evidence in relation to any issues that are relevant from a cultural or linguistic perspective.
It is, of course, possible for expert witnesses to refer to their own experience in this regard. On issues relating to culture, however, supporting evidence should be cited to the extent possible.
This point came up in a matter in which I was involved in the High Court of New Zealand. The dispute involved the intestacy of a New Zealand citizen who had died without leaving a will, giving rise to competing claims to his estate, and the ownership of assets and companies, between the relatives of the first wife and the relatives of the second wife.
In addition to technical legal questions as to which law was applicable to the intestacy, I was asked to provide an opinion on the cultural practices, and the cultural and legal context, relating to estate planning in China. In recognising a cultural aversion in China to estate planning, my report cited both my professional experience, and also academic and professional commentary about this cultural aversion. My opinion supported evidence from the second wife that in Chinese culture, it would be unusual for a husband and wife to discuss each other’s wills.
In this regard, I note the challenges that sometimes arise if the material cited in support of the expert witness’s opinion is in a foreign language. The use of foreign language sources needs to be managed appropriately because the other side can ask that complete translations of the foreign-language material be produced. This can have timing implications and can also prove to be a waste of resources if much of the source material is irrelevant.
Finally, I note that any expert evidence on foreign law is likely to lead to questions about the broader context, cultural and otherwise, if the matter proceeds to trial and the expert witnesses are cross-examined.
A couple of weeks ago, I appeared alongside the expert witness for the other side in the Supreme Court of New South Wales to give concurrent evidence, what we in Australia describe as a “hot tub”. In that case, it was a dispute involving the application of the rules in China to standby letters of credit.
Although the issues were very technical in nature, the court asked questions about judicial practice in China and the broader context. It is therefore important, I think, for expert witnesses to be conscious of the potential relevance of culture and to be prepared to discuss the impact of culture, even if culture was not formally included in the questions on which the expert witnesses were asked to provide an expert opinion.
Andrew Godwin is currently a member of a World Bank team that is advising a central bank in Asia on potential reforms to its mandate. He previously practised as a foreign lawyer in Shanghai (1996-2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law (2006-2021). Andrew is currently Principal Fellow (Honorary) at the Asian Law Centre, Melbourne Law School, and a consultant to various organisations, including Linklaters, the Australian Law Reform Commission and the World Bank.