Deference to Trial Findings on Unfamiliar Foreign Law and Finality: No “Island-Hopping” Re‑trial on Appeal

Case: Kerish International Motors Agency v Opel Automobile GmbH [2026] EWCA Civ 865
Court: England and Wales Court of Appeal (Civil Division) (Popplewell LJ; Lewison LJ; Sir Julian Flaux)
Date: 7 July 2026

Key takeaways

• Foreign law is “fact”, but appellate restraint varies by context. Where the foreign legal system is unfamiliar, sources are in a foreign language, and experts disagree, the trial judge’s preference between experts is treated much like other findings of fact and will only be disturbed if plainly wrong.
• Appellate courts must not “do their own construction” of translated foreign statutes/cases. Texts form part of the evidential matrix; the appellate task is to assess whether the trial judge’s evaluation of expert reasoning was permissible.
• No speculative adjournment/remission to await possible future foreign judgments. Indefinite delay to see whether future foreign appellate decisions might help is contrary to finality and proportionate case management; the Court characterised the approach as “Micawberism”.

1. Introduction

The respondent, a major automobile manufacturer, appointed the appellant (a dealer operating in the West Bank) as a non-exclusive distributor under a detailed “Dealer Sales and Services Agreement” (2012), governed by English law with London Commercial Court jurisdiction. The respondent terminated on 12 months’ notice under a contractual termination-on-notice clause.

The dealer sued in the London Circuit Commercial Court contending that, by virtue of a contractual clause granting compensation/indemnity if “expressly mandated by national law”, it was entitled to compensation under Palestinian Law No. 2 of 2000 (the “Commercial Agents Law”). The central merits issue became whether the dealer fell within the Palestinian statutory definition of “commercial agent”.

At first instance, the trial judge: (i) accepted that “national law” meant Palestinian law (not English law), but (ii) rejected the statutory claim because the dealer was not a “commercial agent” under Palestinian law. On appeal, the dealer challenged only (ii). The manufacturer filed a respondent’s notice on (i), but the Court of Appeal did not determine it because it became unnecessary on the outcome.

An additional procedural dimension arose: earlier concern about the “one voice” principle and recognition of Palestine led to an adjournment for the parties to seek the UK Government’s position; the issue later fell away after Foreign Commonwealth & Development Office correspondence and recognition developments. Shortly before the resumed appeal, the dealer sought remission to await anticipated further Palestinian appellate decisions said to bear on the meaning of the Commercial Agents Law.

2. Summary of the judgment

The Court of Appeal dismissed the appeal. Applying the modern appellate approach to findings on foreign law—especially where dependent on contested expert evidence about an unfamiliar legal system and Arabic-language sources—the Court held that the dealer’s arguments fell far short of showing that the trial judge’s acceptance of the manufacturer’s expert was plainly wrong.

The Court also refused the dealer’s application to remit the case to await potential future Palestinian decisions. It held that the expected timelines were uncertain and potentially lengthy, the prospective assistance was speculative, and further delay was disproportionate and contrary to finality and efficient use of resources.

3. Analysis

3.1 Precedents cited (and how they shaped the decision)

(a) The “spectrum” of appellate scrutiny for foreign law: Perry v Lopag Trust Reg

The Court treated Perry v Lopag Trust Reg [2023] UKPC16 [2023] 1 WLR 3494 as the governing synthesis. It emphasises that foreign law is a question of fact, but “of a special kind”, and the intensity of appellate review depends on how far the trial judge can deploy domestic legal method versus how far the court is dependent on expert evidence.

Critically, the Court placed this case at “the other end of the spectrum”: Arabic statutory text, disputed translation, unfamiliar mixed legal materials, and reliance on numerous Palestinian and Jordanian decisions. In that setting, the trial judge’s choice between competing experts “has a close kinship to other findings of fact” and an appellate court should be “slow to intervene”.

(b) The “plainly wrong” threshold for factual findings: Maso Capital Investments Ltd v Trina Solar Ltd and the English line of authority

The Court adopted the “plainly wrong/outside the bounds of reasonable disagreement” standard, drawing the formulation from Maso Capital Investments Ltd v Trina Solar Ltd [2025] UKPC 48, and anchoring it in the familiar appellate restraint authorities: Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] FSR 29, Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600, Volcafe Ltd v Cia Sud Americana de Vapores SA [2018] UKSC 61; [2019] AC 358, JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176; [2019] BCC 96, Perry v Raleys Solicitors [2019] UKSC 5; [2020] AC 352, and Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48.

(c) “Island-hopping” and appellate limits: FAGE UK Ltd v Chobani UK Ltd, McGraddie v McGraddie, Piglowska v Piglowski

The Court highlighted the institutional reasons for restraint: the trial judge’s advantage in seeing and hearing witnesses, the “penumbra of imprecision” around findings (Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360), the trial judge’s immersion in the whole case (McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477), and resource/finality considerations captured by Lewison LJ’s “island-hopping” metaphor and the phrase “the trial is not a dress rehearsal. It is the first and last night of the show” (FAGE UK Ltd v Chobani UK Ltd).

(d) No appellate “DIY” interpretation of foreign texts: Byers v Saudi National Bank

A decisive strand was the Court’s reliance on Byers v Saudi National Bank [2022] EWCA Civ 43, [2022] 4 WLR 22, cited approvingly in Perry v Lopag. The Court reiterated that, in cases like this, the appellate court’s job is not to interpret foreign statutes/cases as if it were a foreign court; instead, the words are evidence to help decide between experts.

This directly undercut the dealer’s appellate strategy, which largely invited the Court of Appeal to read translations and reach its own view of what Palestinian/Jordanian cases “really meant”, without providing the trial transcript of the experts or engaging with the manufacturer expert’s reasoning as tested in cross-examination.

(e) Distinguishing “foreign law content” from “application”: Banco Intesa Sanpaolo SpA v Commune di Venezia

The dealer relied on Banco Intesa Sanpaolo SpA v Commune di Venezia [2023] EWCA Civ 1482 [2024] Bus LR 228 to argue that even if foreign law is fact, its application is different. The Court rejected the utility of that distinction here: the meaning of the statutory definition and its application to this agreement were “inextricably intertwined”, especially given disputed translation and how Palestinian courts would apply the concept.

(f) Recognition and “one voice”: Deutsche Bank AG London Branch v Receivers and Caglar v Billingham (Inspector of Taxes)

Although ultimately not dispositive, the judgment records the earlier procedural detour prompted by concerns about whether giving effect to Palestinian law engaged the “one voice” principle in foreign affairs. The Court referenced Deutsche Bank AG London Branch v Receivers [2021] UKSC 57, [2023] A.C. 156 and Caglar v Billingham (Inspector of Taxes) [1996] STC (SDC) 150. The point became moot after Government clarification and subsequent recognition developments.

3.2 Legal reasoning

(a) Classification of the foreign-law question and the standard of review

The Court’s core move was methodological: it classified this as a paradigmatic “end of the spectrum” foreign law dispute—Arabic texts, unfamiliar system, competing experts, and extensive reliance on Palestinian and Jordanian decisions—so the appellate court should not interfere absent a clear, identifiable error, and otherwise only if the trial judge was “plainly wrong”.

The Court reinforced that restraint by pointing out practical deficiencies in the appeal presentation:

• the dealer’s arguments were “mostly” counsel’s own textual analysis rather than grounded in the dealer’s expert evidence;
• the Court was not taken to the manufacturer expert’s written reports and had no transcript/note of either expert’s oral evidence;
• the challenges engaged only fragments of the trial judge’s multi-factorial reasoning—classic “island-hopping”.

(b) The merits: why the trial judge’s conclusion was not “plainly wrong”

Without re-trying Palestinian law, the Court addressed (and rejected) the pleaded appellate criticisms as failing to show plain error:

Registration with the Ministry (Ground 1)

The agreement was registered as a commercial agency with the Palestinian Ministry of National Economy. The Court held the trial judge was entitled to treat registration as relevant but not determinative—especially given (i) the absence of evidence of the Ministry’s reasoning, (ii) expert evidence that scrutiny was inconsistent, and (iii) a Palestinian appellate case (case 872/2021) where registration did not prevent a finding that the claimant was not a commercial agent.

Treatment of Palestinian/Jordanian case-law on “commercial agent” vs “commission agent” (Ground 2)

The dealer argued that key decisions relied upon below (including Palestinian Court of Cassation Case 325/2022 (“Shell”) and Jordanian Court of Cassation cases 538/2019, 2949/2007 and 1295/2020) were really about “commission agency”, not “commercial agency”, and therefore did not support the trial judge’s conclusion.

The Court’s answer was methodological and substantive: it was for the trial judge—after hearing experts— to decide what those cases meant in Palestinian legal reasoning; inviting the Court of Appeal to reach a different view from translated extracts was precisely what Byers v Saudi National Bank forbids.

Ownership of goods as a factor (Ground 3)

The Court held that the trial judge did not treat transfer of ownership as automatically fatal; he treated it as “relevant but not conclusive”, as part of a broader assessment that the dealer bought and resold in its own name and for its own account—features which the Palestinian/Jordanian authorities (as explained by the accepted expert evidence) treated as hallmarks of a distributor relationship outside the statutory “commercial agent” concept.

Contractual “no agency” clause and independence (Grounds 4–5)

The agreement stated it created no agency/representation relationship and that the dealer was an independent business responsible for its own profitability. The dealer argued this was only an English-law “authority to bind” clause and irrelevant to Palestinian statutory classification.

The Court upheld the trial judge’s view that such clauses could matter to Palestinian concepts (noting a similar clause was treated as “negat[ing] the agency characteristic” in Jordanian Court of Cassation case 1295/2020), and in any event the point formed only part of a larger multi-factor analysis: if the dealer was not an agent “in an English law sense”, it was hard to see what factual material established that it acted “on behalf of” or “for the account of” the manufacturer in a meaningful sense.

“Profit margin” vs “profit share” (Ground 6)

The dealer sought to argue that “profit margin” naturally includes profit from buying and resale. The Court rejected this as another impermissible attempt to construe a contested translation divorced from expert evaluation, and it stressed the statutory phrase requires the margin to be “in return for” acting on behalf of/for the account of the principal—a linkage the trial judge had treated as central, again supported by the accepted expert evidence on Palestinian/Jordanian jurisprudence.

3.3 Remission to await prospective foreign judgments: finality and proportionality

The Court refused remission to await anticipated Palestinian appellate decisions in “Japan Tobacco” and a Cassation decision in “Thorn Lighting”. Several considerations drove that refusal:

• Timing was uncertain and potentially prolonged (a Cassation decision could take many months to years; and any further appeal could extend it further).
• Relevance and helpfulness were speculative: it was unclear whether future decisions would address the same issue, on comparable facts, or favour the dealer’s position.
• Litigation must “stop the clock”: the Court stressed finality and proportionate use of resources, especially after the appeal had already been delayed by the recognition issue.

4. Impact

Although the Court did not create a new substantive rule of Palestinian commercial agency law, the decision is an important English appellate practice statement for foreign-law heavy commercial disputes:

• Stronger practical discipline in appeals turning on foreign law: appellants must grapple with the expert evidence “as a whole” and demonstrate an identifiable flaw in the trial judge’s evaluative process; selective quotation of translated statutes/cases is unlikely to succeed.
• Emphasis on proper appellate record: where the trial judge’s preference between experts is challenged, the absence of transcripts/notes and failure to put the accepted expert’s reasoning before the appellate court will be highly damaging.
• Case-management message: the Court signalled that English proceedings will not be paused indefinitely to await possibly relevant future developments abroad; finality and proportionality prevail unless there is a concrete, timely, and materially probative foreign development.

5. Complex concepts simplified

5.1 “Foreign law is fact”

In English procedure, the content of foreign law is proved by evidence (typically experts), so it is treated as a factual finding. But it is “special”: sometimes English judges can independently reason about it (e.g., where it resembles common law reasoning and the sources are in English), and sometimes they cannot (where language and legal method are unfamiliar).

5.2 The “spectrum” and why it mattered here

Where a case sits at the “unfamiliar/language-dependent” end of the spectrum, the trial judge’s decision on which expert to accept is treated like any other evaluative fact-finding. The appeal court will not substitute its own view just because it might have decided differently.

5.3 “Island-hopping”

This describes an appellate court’s limited perspective: it sees selected parts of the record (“islands”), not the full evidential “sea” experienced by the trial judge over multiple days. That is why appellate courts resist re-running factual (and fact-like) evaluations.

5.4 Remission vs fresh evidence

“Remission” sends an issue back to the trial court. It is exceptional on appeal, particularly where it would create long delay. Here, the parties’ earlier fresh-evidence skirmishing ultimately fell away, and the dealer sought remission not to address existing decisive new material, but to wait for possible future decisions—an approach the Court rejected as speculative and disproportionate.

6. Conclusion

Kerish International Motors Agency v Opel Automobile GmbH is a clear reaffirmation that, in foreign-law disputes dependent on contested expert evidence about an unfamiliar system and foreign-language materials, the Court of Appeal will intervene only if the trial judge’s evaluation is “plainly wrong”. It also underscores finality: English courts will not suspend proceedings to await uncertain future foreign judgments in the hope that something helpful may turn up.