In a 14 page decision, released December 16, 2015, Judge Gross of the Delaware Bankruptcy Court considered made a determination of British Virgin Islands law on limited partnerships. Judge Gross’ opinion is available here (the “Opinion”).
Pursuant to F.R.C.P. 44.1, “In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The Court’s determination must be treated as a ruling on a question of law.” Opinion at *1. The issue is important as the debtors in this case were at risk of having undergone a change of control pursuant to BVI law.
Judge Gross’ Opinion
While the ultimate holding that there was a change in control is of interest to the parties to this conflict, my interest in the Opinion is not because of its holdings or the specific application of BVI law, rather, it is because of the Court’s use and interpretation of foreign law. While it only cited to a single opinion from the Virgin Islands, Opinion at *8, it placed great weight on the expert opinion provided by the parties. Opinion at *2. As provided in the Opinion, the experts were not sworn, but were still treated as expert witness. Opinion at *11, n. 2.
Ultimately, the Federal Rules of Civil Procedure allow judges every benefit in making their decision. As I believe the rules should, in matters of foreign law in which the judges are unlikely to have significant experience. Note that this relaxing of the standards of evidence and argument do not, however, apply to U.S. laws in any respect.