Kerish International Motors Agency v Opel Automobile GmbH

Findings on foreign law attract appellate restraint where an unfamiliar legal system and disputed foreign-language texts require reliance on competing expert evidence. Absent an identifiable error, intervention requires a finding outside the bounds of reasonable disagreement. An appellant cannot establish that threshold through its own interpretation of translated materials while failing to address the expert evidence accepted at trial. Where the content of foreign law and its application are intertwined, distinguishing those questions does not enlarge the scope of appellate review.

Remitting proceedings to await uncertain future foreign judgments may conflict with finality and the proportionate use of court resources. The possibility that further decisions might assist an unsuccessful party does not ordinarily justify postponing determination beyond the trial.

Kerish International Motors Agency, a Palestinian automobile dealer, was appointed by Opel Automobile GmbH, an automobile manufacturer, as a non-exclusive distributor in the Palestinian National Authority territory. Their agreement was governed by English law and provided for compensation or indemnification following termination where expressly mandated by national law. Opel terminated the agreement on notice.

Kerish claimed compensation under the Palestinian Commercial Agents Law. The Deputy High Court Judge dismissed its claim in [2024] EWHC 1047 (Comm). He construed national law as Palestinian law but, after hearing competing experts, found that Kerish was outside the statutory definition of a commercial agent. Kerish appealed against that finding. Opel challenged the construction of national law by a respondent’s notice.

Kerish also sought remission to the High Court to await anticipated Palestinian appellate decisions. The central questions were whether the foreign-law finding warranted appellate intervention and whether proceedings should be remitted pending those decisions.

The appeal was dismissed unanimously, and the application for remission was dismissed. Popplewell LJ gave the substantive judgment, with which Sir Julian Flaux and Lewison LJ agreed.

1. Findings on foreign law were findings of fact of a special kind. The appellate approach depended principally on the extent to which domestic legal skill and experience could assist. Applying Perry v Lopag Trust Reg, the present dispute lay at the end of the spectrum requiring substantial restraint. It concerned disputed Arabic texts, an unfamiliar legal system and competing expert evidence tested by cross-examination. Absent an identifiable error, the finding could be disturbed only if no reasonable judge could have reached it. An appellate preference for another conclusion was insufficient (paras 18–25).

2. Following the approach in Byers v Saudi National Bank, translated statutory and judicial texts were evidence through which to assess the experts’ competing opinions. They did not invite independent construction by the appellate court. The appellant principally advanced its own textual arguments and supplied no transcript or account of the opposing expert’s answers to the relevant cross-examination. Its selective criticisms failed to address the judge’s overall assessment. The distinction identified in Banco Intesa Sanpaolo SpA v Commune di Venezia between ascertainment and application of foreign law afforded no assistance where those questions were inextricably intertwined (paras 23–25).

3. The individual grounds disclosed no basis for intervention. Registration by the Ministry of National Economy was relevant but was agreed to be non-determinative. The judge could give it limited weight against the fuller evidence before him. He was entitled to accept the expert’s account of the Palestinian and Jordanian authorities concerning trading in one’s own name and for one’s own account (paras 26–27).

   Article 14 of the Commercial Agents Law prevented ownership of stock from being conclusive against commercial agency. Ownership nevertheless remained relevant within the overall assessment. The contractual exclusion of agency and the dealer’s independent responsibility for profitability were also relevant. The exclusion was capable of extending to Palestinian concepts of agency. The challenge concerning profit margin overlooked the requirement in Article 1 that remuneration be received in return for acting on behalf of, or for the account of, the principal (paras 28–31).

4. Remission would involve potentially prolonged delay for an entirely speculative benefit. The anticipated decisions might neither address the relevant issue nor assist the appellant. Finality, the parties’ reasonable expectations and efficient use of court resources required litigation ordinarily to be assessed at the conclusion of trial. No departure was justified (paras 39–43).

The court assumed that national law meant Palestinian law. It left the respondent’s notice and the correctness of that contractual construction undetermined (para 6).

• Court of Appeal (Civil Division): In [2026] EWCA Civ 865 , dismissed the appeal against the finding on commercial-agent status and dismissed the application for remission. Left the respondent’s challenge to the construction of national law undetermined.
• High Court, London Circuit Commercial Court: Mr David Quest KC, sitting as a Deputy High Court Judge, dismissed the claim in [2024] EWHC 1047 (Comm) . He construed national law as Palestinian law but found that the claimant was not a commercial agent under the Commercial Agents Law.