Amicus Curiae Brief — Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 137 S. Ct. 2320 (2017) (No. 16-1220)

No. 16-1220

bee __ ________

In the Supreme Court of the Anited States

ANIMAL SCIENCE PRODUCTS, INC., ET AL., PETITIONERS

v.

HEBEI WELCOME PHARMACEUTICAL Co. LTD., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

MAKAN DELRAHIM

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

BRIAN H. FLETCHER

Assistant to the Solicitor

General

KRISTEN C. LIMARZI

JAMES J. FREDRICKS

FRANCES MARSHALL

Attorneys

JENNIFER G. NEWSTEAD Department of Justice

Legal Adviser Washington, D.C. 20530-0001

Department of State SupremeCtBriefs@usdo)j. gov

Washington, D.C. 20520 (202) 514-2217

QUESTION PRESENTED

Whether a federal court determining foreign law

under Federal Rule of Civil Procedure 44.1 is required

to treat as conclusive a submission from the foreign

government characterizing its own law.

(I)

TABLE OF CONTENTS

Page

NE GE ae Te NO iccrsretincicrtetniiienmteinmennantinnns l

Nt III cicctnsctansmnenssensnnsteninsinesbstincnnsoeneiastetiaieeblins l

NE saosieshniteiseabiniiieiighintiipnitenatipinineipamennieienecnipentenmanntitiieminntsciinans 2

Re Or IE ca cnscscsesicemartesneansimneeanionenennsanbiotnemenians 8

Argument:

A federal court determining foreign law is not bound

by the views expressed in a submission from the

relevant foreign GovernMent..........csssseseeeeereeerseneensenenees 12

A. Rule 44.1 grants federal courts broad latitude to

decide questions of foreign law based on any

relevant material OF SOUPCE .........00e0sesseesnesesnensenenseees 12

B. A foreign government’s characterization of its own

law is ordinarily entitled to substantial weight, but

is not binding on federal COUrtS ............0serseeseeeeees 16

C. The court of appeals erred by treating the

Ministry’s amicus brief as binding and by

disregarding other relevant materials memembinenausin 21

1. The court of appeals’ rule of binding deference

is inconsistent with the policies embodied in

BU GB ccccnsengyssesensscensmenenensinmasssiatsidemimmnmmnnnee 22

2. The court of appeals’ rule of binding deference

is inconsistent with this Court’s treatment of

analogous submissions from U.S. States............... 26

3. This Court’s decision in Pink does not support

the court of appeals’ rule of binding deference...... 27

4. Considerations of reciprocity and comity do not

support the court of appeals’ rule of binding

Io cicterisniieaninicincininsttiacenasemmmenmnasemmaneenne 29

D. This Court should vacate the decision below and

remand the case to allow the court of appeals to

apply the correct legal standard .............ccsseeeeeeerenees 30

CII cccescstcsnensscsedcicchvarpncinnsennennniestentetssnesentbanndinniasnsinmngetaniien 32

(IIT)

IV

TABLE OF AUTHORITIES

Cases: Page

Abbott v. Abbott, 560 U.S. 1 (2010) .......cccccccceceeseeeeenennnes 17, 19

Access Telecom, Inc. v. MCI Telecomms. Corp.,

197 F.3d 694 (5th Cir. 1999), cert. denied,

GB UB. GET CRB B Ip aon ceccecccccccccceccccscceccscscecscscccscenscoccecccce 17, 18

Arizonans for Official English v. Arizona,

er ee aE ecieecnscieideecicnitecteniveieniiciiceniensicirimiscenaitaiaaiis 27, 28

Bodum USA, Inc. v. La Cafetiere, Inc.,

621 F.3d 624 (7th Cir. 2010) ............cccccceceseeeeees 13, 16, 18

Bowen v. Georgetown Univ. Hosp.,

RE Sy SESE 25

Chevron U.S.A. Inc. v. NRDC, Inc.,

Re i i i iacctasinchtecasenietnccenietencininnepinintiniansecctnnenes 19

Church v. Hubbart, 6 U.S. (2 Cranch) 187 (1804)............... 14

Day & Zimmermann, Inc. v. Challoner,

ee ee einteaitdnnincicentntrprniiiepeinnsnsnetntansenstaseseincnens 12

DRC, Inc. v. Republic of Honduras,

71 F. Supp. 3d 201 (D.D.C. 2014) slebieiaseieanatinaand 25

Export-Import Bank of the Republic of China v.

Central Bank of Liberia, No. 15-cv-9565,

2017 WL 1378271 (S.D.N.Y. Apr. 12, 2017)... 19

Fremont v. United States, 58 U.S. (17 How.)

ee estactnntescccnsanssabetinstninicicrnnscassmetenniinncssemetncestinnenes 21

Government of Peru v. Johnson,

720 F.. Supp. 810 (C.D. Cal. 1989)...............0.csccssssessssseeeess 26

Guardian Indus. Corp. v. United States,

477 F.3d 1368 (Fed. Cir. 2007) ............ccccccceeescreeeseeeeees 13

Hartford Fire Ins. Co. v. California,

I ls ee cn recencecssentnnsienznicnsenensnescnestosnsnssnccsaceenesentene 7

Karaha Bodas Co. v. Perusahaan Pertambangan

Minyak Dan Gas Bumi Negara, 313 F.3d 70

(2d Cir. 2002), cert. denied, U.S. 904 (2008)........ 18, 25

Cases—Continued: Page

Lamar v. Micou, 114 U.S. 218 (1885) ........ccccccccecerceeeeeeees 26

Mannington Mills, Inc. v. Congoleum Corp.,

596 F.2d 1287 (Sd Cir. 1979) ..........ccescscersseresersereresseseneees 3,7

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

GB Ee, Ge ae cccencesnnrnnnnsesesecntennnetmnmnsnnesmnmennnen 21

McKesson HBOC, Inc. v. Islamic Republic of Iran,

271 F.3d 1101 (D.C. Cir. 2001), cert. denied,

537 U.S. 941 (2002), vacated in part on other

grounds, 320 F.3d 280 (D.C. Cir. 2008) ................ 16, 19, 25

Mullaney v. Wilbur, 421 U.S. 684 (1975) ......ccccccccceeceeneeeees 27

Northrop Grumman Ship Sys., Inc. v. Ministry of

Def. of the Republic of Venezuela, 575 F.3d 491

ee antcctticencsdesictinseiaeicteremencnniesescutcccewatiosees 16, 25

Oil Spill by the Amoco Cadiz, In re,

954 F.2d 1279 (7th Cir. 1992) .........cccccesecereereeensees 17, 18, 19

Pasquantino v. United States,

es CI crcnctccectnnnnctasccsssnsctinnsoensccesssseseses 13, 15

Prewitt Enters., Inc. v. Organization of Petroleum

Exporting Countries, 353 F.3d 916

(11th Cir. 2003), cert. denied, 543 U.S. 814 (2004)...... 13

Republic of Ecuador v. ChevronTexaco Corp.,

499 F. Supp. 2d 452 (S.D.N.Y. 2007) .......ccccccceeseeeseeneenenes 25

Republic of the Philippines v. Pimentel,

8 ER cee 18

Republic of Turkey v. OKS Partners,

146 F.R.D. 24 (D. Mass. 1993) avsiiaeiahtiiasceinbneiibiab 26

Salve Regina Coll. v. Russell, 499 U.S. 225 (1991)....... 20, 27

Skidmore v. Swift & Co., 323 U.S. 134 (1944) 0.0... 20

Société Nationale Industrielle Aérospatiale v.

United States Dist. Court, 482 U.S. 522

Stenberg v. Carhart, 530 U.S. 914 (2000) ........cccccccceserneeee 27

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) ..............0.006 14

VI

Cases—Continued: Page

Themis Capital, LLC v. Democratic Republic of

Congo, 626 Fed. Appx. 346 (2d Cir. 2015) ...........0c000 19, 25

Timberlane Lumber Co. v. Bank of America,

549 F.2d GO7 (Sth Cir. 1976)...........ccccrcssssessssressescesserseeeseeees 7

United States v. McNab, 331 F.3d 1228

(11th Cir. 2003), cert. denied,

ED EE, SIGE Go iessctvsecicenssseessecezsnsnesesemeessenseene 17, 18, 20

United States v. Mead Corp., U.S. 218 (2001) .........0.. 20

United States v. Mitchell, 985 F.2d 1275

Ea ea 13

United States v. Pink, 315 U.S. 208

(1942) ...10, 11, 22, 27, 28, 29

United States v. Schultz, 333 F.3d 393 (2d Cir. 2003),

cert. denied, 540 U.S. 1106 (2004) ........cccccsceseesenseesenennneees 17

United States v. 2,507 Live Canary Winged

Parakeets, 689 F. Supp. 1106 (S.D. Filla. 1988)............. 17

Virginia v. American Booksellers Ass'n,

GG TE, Fe Ca enstecsnsencnnnesvecensscsnsssevecosczceseecscvscensecocone 27

Wainwright v. Goode, 464 U.S. 78 (1983).....ccccceceeeereenee 27

W.S. Kirkpatrick & Co. v. Environmental Tectonics

Corp., Int'l, 493 U.S. 400 (1990).......ccccscsssesesceeeeseseeseesenseeees 3

Treaties, statutes, and rules:

European Convention on Information on Foreign

Law art. 8, June 7, 1968, 720 U.N.T-.S. 154 ................. 30

Crganization of American States, Inter-American

Convention on Proof of and Information on

Foreign Law art. 6, May 8, 1979, O.A.S.T.S.

8 ky en 30

Lacey Act Amendments of 1981,

SE 12

mene 2

Vil

Rules—Continued: Page

Fed. R. Civ. P.:

Pe a rciccrceecnecninsseesinnncrsinicneiinisanientanialiisammabidiads 13

er I ccensscsctnstsnepnesnenmnssrmasenincennimenansienninnies 13

eee aD Ca cercerterneennnmensieniemeneninnenniieiitn 14

BRD GBS cenncrsessecsssscezecececsrntsnensnsnsscsnnsemesenennenetsnneses passim

Rule 44.1 advisory committee’s note (1966)

(Adoption) sevennenanepenenndesmnstintiisiddogumdanemcun(eiiiin 14, 15

Fed. R. Crim. P. 26.1 advisory committee’s note

CO CD eenccectccctresstiertncancenitiitasiininaiiitsivanidinninininn 15

Miscellaneous:

First Written Submission of the United States of

America, China—Measures Related to the Expor-

tation of Various Raw Materials, DS394, DS395,

DS398 (June 1, 2010), https://ustr.gov/sites/default/

files/uploads/ziptest/WTO%20Dis pute/New _

Folder/Pending/DS394.US_.Sub1_.fin_.pdf. ............00000 31

Arthur R. Miller, Federal Rule 44.1 and the “Fact”

Approach to Determining Foreign Law: Death

Knell for a Die-Hard "> trine, 65 Mich. L. Rev.

Ce remiemssimnnntittiniiniioniniuanin 14

Second Written Submission of the United States of

America, United States—Section 129(c)(1) of the

Uruguay Round Agreements Act, WT/DS221

(Mar. 8, 2002), https://ustr.gov/sites/default/files/

uploads/Countries%20Regions/africa/agreements/

pdfs/dispute_settlement/ds221/asset_upload_

file327_6455.pdf. a)

World Trade Organization, China—Measures Re-

lated to the Exportation of Various Raw Materials:

Reports of the Panel, WT/DS394/R, WT/DS395/R,

WT/DS398/R (July 5, 2011), https:/Awww.wto.

org/english/tratop_e/dispu_e/ds394_e.htm............0.000 31

Vill

Miscellaneous—Continued: Page

9A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure:

| 14, 23

(3d ed. 2008 & Supp. 2017) .........cccceccesesensrsnesesesnnsnneennnes 16

19 Charles Alan Wright et al., Federal Practice and

In the Supreme Court of the Anited States

No. 16-1220

ANIMAL SCIENCE PRODUCTS, INC., ET AL., PETITIONERS

Vv.

HEBEI WELCOME PHARMACEUTICAL Co. LTD., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This Court granted certiorari to consider what

weight a federal court deciding an issue of foreign law

should give to a submission from a foreign government

characterizing its own law. The United States has a

substantial interest in that question because it affects

both the enforcement of federal statutes and the Na-

tion’s foreign relations. At the Court’s invitation, the

United States filed a brief as amicus curiae at the peti-

tion stage of this case.

FEDERAL RULE INVOLVED

Federal Rule of Civil Procedure 44.1 provides as

follows:

A party who intends to raise an issue about a foreign

country’s law must give notice by a pleading or other

writing. In determining foreign law, the court may

(1)

2

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 rul-

ing on a question of law.

STATEMENT

This Court granted certiorari to consider whether

and under what circumstances a federal court deciding

an issue of foreign law under Federal Rule of Civil Pro-

cedure 44.1 must treat as conclusive a submission ex-

pressing the views of the relevant foreign government.

That question can arise in a variety of legal and factual

contexts. In the proceedings below, the defendants in a

federal antitrust suit contended that they could not be

held liable because Chinese law mandated their anti-

competitive conduct. They relied in part on an amicus

brief in which an agency of the Chinese government en-

dorsed that characterization of Chinese law.

1. Petitioners are two U.S. companies that purchase

vitamin C. Respondents are two Chinese exporters of

vitamin C. In 2005, petitioners filed a class-action suit

against respondents and other Chinese exporters, al-

leging that they had violated Section 1 of the Sherman

Act, 15 U.S.C. 1, by fixing the prices and quantities of

vitamin C exported to the United States. Petitioners

alleged that the conspiracy had begun in 2001 and that

it was accomplished through a membership organiza-

tion known as the China Chamber of Commerce of Med-

icines and Health Products Importers and Exporters

(Chamber). Pet. App. 2a, 4a-5a.

2. Respondents moved to dismiss the complaint.

They did not deny that they had fixed the prices and

quantities of vitamin C exported to the United States.

Pet. App. 163a. Instead, they asserted that their actions

3

had been compelled by Chinese law and that petitioners’

claims were therefore barred by the act of state doc-

trine, the foreign sovereign compulsion doctrine, and

principles of international comity. /bid.

The act of state doctrine may bar a claim that would

require a court “to declare invalid [an] official act of a

foreign sovereign performed within its own territory.”

W.S. Kirkpatrick & Co. v. Environmental Tectonics

Corp., Int’l, 493 U.S. 400, 405 (1990). The foreign sov-

ereign compulsion doctrine provides a limited defense

to antitrust liability when a foreign government has re-

quired the defendant to engage in the specific conduct

that violated the antitrust laws. See Mannington Millis,

Inc. v. Congoleum Corp., 595 F.2d 1287, 1293-1294 (3d

Cir. 1979). And in exceptional cases, principles of inter-

national comity may justify the dismissal of a private

antitrust suit challenging conduct that occurred 2 road.

See id. at 1297-1298. Here, respondents’ invocation of

each of those doctrines rested on their assertion that

Chinese law had required them to fix the prices and

quantities of vitamin C exports. Pet. App. 167a-168a.

The Ministry of Commerce of the People’s Republic

of China (Ministry) filed an amicus brief supporting re-

spondents’ motion to dismiss. Pet. App. 168a; see id. at

189a-223a. The Ministry had entered into a joint-

defense agreement with respondents and the Chamber.

Id. at 237a. The Ministry explained that it is “the equiv-

alent * * * ofa cabinet level department” and the entity

within the Chinese government that regulates foreign

trade. Jd. at 190a. The Ministry stated that the Cham-

ber was a state-supervised entity authorized to regulate

vitamin C exports. /d. at 20la. And the Ministry ar-

gued that Chinese law in force during the relevant pe-

riod had “compelled” respondents “to coordinate export

4

prices and maximum export volumes” on pain of “severe

penalties.” /d. at 212a-213a.

Petitioners disputed that understanding of Chinese

law. They noted that the Chamber had publicly de-

scribed the exporters’ agreement on vitamin C prices

and quantities as a “self-regulated agreement” that was

adopted “voluntarily” and “without any government in-

tervention.” Pet. App. 173a-174a (citation and empha-

ses omitted). Petitioners also submitted evidence ac-

quired through limited discovery, which in their view

showed that respondents and other Chinese exporters

had “voluntarily restricted export volume and fixed

prices for vitamin C.” /d. at 175a.

The district court denied the motion to dismiss. Pet.

App. 157a-188a. The court held that the Ministry’s de-

scription of Chinese law was “entitled to substantial

deference.” /d. at 18la. But it declined to treat the

Ministry’s brief as “conclusive,” based in part on its

view that “the plain language of the documentary evi-

dence submitted by [petitioners] directly contradict| ed]

the Ministry’s position.” /Jbid. Under those circum-

stances, the court found the record “too ambiguous to

foreclose further inquiry” into Chinese law. /d. at 186a.

3. After additional discovery, respondents moved

for summary judgment, again invoking the act of state

doctrine, the foreign sovereign compulsion defense, and

principles of international comity. Pet. App. 55a. The

Ministry submitted a statement reiterating its position

that Chinese law had compelled respondents’ conduct.

Id. at 97a n.24; see J.A. 247-251. Petitioners cited addi-

tional evidence supporting their contrary view, includ-

ing documents in which China had represented to the

World Trade Organization (WTO) that it “gave up ‘ex-

port administration ... of vitamin C’” at the end of

5

2001. Pet. App. 74a (citation omitted). The district

court denied respondents’ summary-judgment motion,

concluding that Chinese law “did not compel their ille-

gal conduct.” Jd. at 56a; see id. at 54a-156a.

a. The district court explained that, under Federal

Rule of Civil Procedure 44.1, the determination of for-

eign law “is an issue of law” to be decided based on “any

relevant material or source.” Pet. App. 93a (citations

omitted). The court concluded that a foreign govern-

ment’s characterization of its laws warrants deference,

but is not “entitled to absolute and conclusive defer-

ence.” /d. at 97a. Here, the court accepted the Minis-

try’s “explanation of the relationship between the Min-

istry and the Chamber,” but “respectfully decline[d] to

defer to the Ministry’s interpretation” of the Chinese

law governing respondents’ conduct. /d. at 117a-118a.

The district court gave several reasons for declining

to adopt the Ministry’s view. First, it emphasized that

the Ministry’s submissions had “fail[ed] to address crit-

ical provisions of the [governing legal regime] that, on

their face, undermine its interpretation.” Pet. App.

119a; see id. at 97a & n.24, 132a-133a. Second, the court

noted that the Ministry’s most recent statement “d[id]

not cite” legal authorities, id.at 120a, and that the Min-

istry’s earlier amicus brief “was less than straightfor-

ward” because it implied that a 1997 regime remained

in force even though that regime had been “superseded”

in 2002, id. at 132a n.45. Third, the court emphasized

that the Ministry had “malde] no attempt to explain

China’s representations [to the WTO] that it gave up

export administration of vitamin C”—representations

that “appear[ed] to contradict the Ministry’s position.”

Id. at 121a. Under those circumstances, the court con-

cluded that “the Ministry’s assertion of compulsion

6

[wa]s a post-hoc attempt to shield [respondents’] con-

duct from antitrust scrutiny rather than a complete and

straightforward explanation of Chinese law during the

relevant time period.” /d. at 121la-122a.

b. The district court then conducted its own analysis

of the “traditional sources” for determining foreign law,

including the relevant “governmental directives” and

the records kept by the Chamber and by respondents.

Pet. App. 117a & » 36; see id. at 122a-155a. The court

determined that, .ithough the Ministry may have sup-

ported respondents’ actions, Chinese law did not compe!

them to fix the prices and quantities of vitamin C exports.

The district court concluded, for example, that ex-

porters had “unilateral authority to suspend” the legal

regime that assertedly required them to adhere to

agreed-upon prices. Pet. App. 124a. The court stated

that this authority “standing alone” was “sufficient rea-

son to deny summary judgment.” /d. at 125a. The court

further explained that, even if Chinese law had required

respondents to agree on and adhere to minimum prices,

it did not compel their agreements to limit quantities.

Id. at 126a-127a. The court stated that the factual rec-

ord reinforced its view, because there was no evidence

that Chinese exporters had faced penalties for failing to

adhere to agreed-upon quantities or for “failing to reach

agreements [on prices or quantities] in the first in-

stance.” Jd. at 151la; see id. at 149a-151la.

c. In the absence of compulsion by Chinese law, the

district court held that respondents were not entitled to

summary judgment under any of the doctrines they had

invoked. Pet. App. 98a-115a. With respect to interna-

tional comity, the court determined that other comity

considerations did not support dismissal because this

case was “no different than any other worldwide price-

7

fixing conspiracy by foreign defendants that includes

the United States as one of its primary targets.” /d. at

102a; cf. Hartford Fire Ins. Co. v. California, 509 U.S.

764, 796 (1993) (“[T]he Sherman Act applies to foreign

conduct that was meant to produce and did in fact pro-

duce some substantial effect in the United States.”).

4. The case proceeded to trial, and a jury found that

respondents had agreed to fix the prices and quantities

of vitamin C exports. Pet. App. lla; see id. at 276a-

279a.' The jury aiso found that respondents were not

“actually compelled” by China to enter into those agree-

ments. Jd. at 278a. The district court entered judgment

for petitioners, awarding roughly $147 million in treble

damages and enjoining respondents from further viola-

tions of the Sherman Act. /d. at lla.

5. The court of appeals reversed. Pet. App. la-38a.

The court held that the district court should have

granted respondents’ motion to dismiss based on comity,

and it remanded with instructions to dismiss petitioners’

complaint with prejudice. /d. at 38a.

The court of appeals based its comity analysis on a

“multi-factor balancing test” drawn from Timberlane

Lumber Co. v. Bank of America, 549 F.2d 597, 614-615

(9th Cir. 1976), and Mannington Mills, 595 F.2d at

1297-1298. Pet. App. 14a-l5a. The court focused pri-

marily on the first factor, which asks whether there was

a “true conflict” between U.S. and Chinese law—that is,

whether “Chinese law required [respondents] to enter

into horizontal price-fixing agreements.” /d. at 19a.

The court of appeals stated that the answer to that

question “hinge[d] on the amount of deference” owed to

the Ministry’s characterization of Chinese law. Pet.

' Respondents’ co-defendants settled before or during the trial.

Pet. App. 39a n.1.

8

App. 20a. The court acknowledged that some courts

have declined to “accept such statements as conclusive.”

Id. at 20a-21a. But the court disagreed with those deci-

sions, holding instead that when a foreign sovereign “di-

rectly participates in U.S. court proceedings by provid-

ing a sworn evidentiary proffer regarding the construc-

tion and effect of its laws and regulations, which is rea-

sonable under the circumstances presented, a U.S. court

is bound to defer.” Jd. at 25a.

The court of appeals then held, based on the Minis-

try’s amicus brief, that “Chinese law required | respond-

ents] to engage in activities in China that constituted

antiwust violations here in the United States.” Pet.

App. 27a. In reaching that conclusion, the court gener-

ally limited its inquiry to the analysis in the Ministry’s

brief. It did not consider the apparently contradictory

statements and authorities on which the district court

had relied, and it did not address the district court’s

criticisms of the Ministry’s submissions. /d. at 27a-33a.

Having found a true conflict, the court of appeals

stated that the remaining comity factors “clearly weigh

in favor of U.S. courts abstaining from asserting juris-

diction.” Pet. App. 33a. The court noted, for example,

that respondents are Chinese companies, that their con-

duct had occurred in China, and that (according to the

Ministry) this suit had “negatively affected U.S.-China

relations.” Jd. at 34a-35a.

SUMMARY OF ARGUMENT

When a federal court deciding a question of foreign

law under Rule 44.1 is presented with the views of the

relevant foreign government, it should ordinarily afford

those views substantial weight. But the ultimate respon-

sibility for determining the governing law lies with the

9

court, which is neither bound to adopt the foreign gov-

ernment’s characterization nor barred from considering

other materials that support a different interpretation.

A. Until 1966, federal courts followed the common-

law rule that foreign law must be pleaded and proved as

a fact. Rule 44.1 abandoned that cumbersome approach

and sought to align the process of determining foreign

law more closely with the process of determining do-

mestic law. The rule specifies that issues of foreign law

must be decided as questions of law, and it grants courts

broad latitude to determine foreign law based on “any

relevant material or source.” Fed. R. Civ. P. 44.1.

B. Federal courts determining foreign law are

sometimes presented with the views of the relevant for-

eign government. Those views always warrant respect-

ful consideration, and they will ordinarily be entitled to

substantial weight. But courts have correctly recog-

nized that the appropriate weight depends on the cir-

cumstances. Given the diversity of foreign legal sys-

tems and the wide range of ways in which foreign gov-

ernments present their views to U.S. courts, those cir-

cumstances cannot be reduced to a formula or rule. The

relevant considerations include the interpretation’s

clarity, thoroughness, and support; its context and pur-

pose; the nature and transparency of the foreign legal

system; the role and authority of the entity or official

offering the interpretation; its consistency with the for-

eign government’s past positions; and any other corrob-

orating or contradictory materials.

C. The court of appeals held that, when a foreign

government “directly participates in U.S. court pro-

ceedings” and offers an interpretation that is “reasona-

ble under the circumstances,” “a U.S. court is bound to

defer.” Pet. App. 25a. In applying that standard, the

10

court limited its inqusy to the ana’ _»‘* in the Ministry’s

brief. Jd. at 27a-29a. The court thus effectively held

that a federal court is bound to adopt a foreign govern-

ment’s submission characterizing its own law so long as

it is facially reasonable. That rigid rule is unsound.

1. The court of appeals’ approach departs from the

policies embodied in Rule 44.1. A rule that does not per-

mit a court even to consider relevant information cast-

ing doubt on a foreign government’s submission is in-

consistent with federal courts’ responsibility to “deter-

min(e] foreign law” based on “any relevant material or

source.” Fed. R. Civ. P. 44.1. And a rule that a federal

court must accept any facially reasonable litigating po-

sition a foreign government may assert concerning its

own laws is inconsistent with Rule 44.1’s direction that

courts are free to look beyond the parties’ submissions

to reach accurate conclusions about the meaning of for-

eign law.

2. The court of appeals’ approach is also incon-

sistent with federal courts’ treatment of submissions by

U.S. States characterizing their laws. This Court has

held that such submissions are entitled to significant

but not controlling weight. Nothing in the text, history,

or purposes of Rule 44.1 suggests that a federal court

must give greater weight to a submission from a foreign

sovereign than it would give to a similar submission from

a domestic one.

3. The court of appeals believed that its rigid ap-

proach was compelled by United States v. Pink, 315

U.S. 203 (1942). In that case, which predated Rule 44.1,

this Court stated that an “official declaration by the

Commissariat of Justice” of the Russian Socialist Fed-

eral Soviet Republic was “conclusive” evidence of the

extraterritorial reach of a Russian decree. /d. at 218,

11

220. But that statement was premised on a finding that

the Commissariat “ha{d] power to interpret existing

Russian law,” id. at 220, and there was no indication that

the declaration—which had been obtained by the United

States through diplomatic channels—was subject to

question. The Court’s statement that the declaration

was “conclusive” under those unusual circumstances

does not suggest that every submission by a foreign

government is entitled to the same weight.

4. The court of appeals also reasoned that a foreign

government should be afforded “the same respect and

treatment that we would expect our government to re-

ceive in comparable matters.” Pet. App. 26a. But the

United States has not argued that foreign courts are

bound to accept its characterizations of U.S. law or pre-

cluded from considering other relevant material, and we

are not aware of any foreign-court decision holding that

representations by the United States are entitled to

such conclusive weight.

D. Because the court of appeals concluded that the

district court was bound to defer to the Ministry’s ami-

cus brief, it did not review “the district court’s careful

and thorough treatment” of the materials bearing on

the meaning of Chinese law. Pet. App. 30a n.10. The

question whether the district court correctly inter-

preted Chinese law is not before this Court, and we do

not take a position on it. But the materials the district

court identified were, at minimum, relevant to the ques-

tion whether Chinese law required respondents’ con-

duct. The Court should therefore vacate the decision

below and remand to allow the court of appeals to con-

sider that question under the correct standard.

12

ARGUMENT

A FEDERAL COURT DETERMINING FOREIGN LAW IS NOT

BOUND BY THE VIEWS EXPRESSED IN A SUBMISSION

FROM THE RELEVANT FOREIGN GOVERNMENT

Federai Rule of Civil Procedure 44.1 provides that a

federal district court faced with a question of foreign

law should resolve it as a matter of law and may base its

determination on “any relevant material or source.” A

submission expressing the views of the foreign govern-

ment is highly relevant, and courts should ordinarily af-

ford such submissions substantial weight. As in other

contexts, however, the ultimate responsibility for deter-

mining the governing law lies with the court. The court

is neither bound to adopt the characterization urged by

the foreign government nor barred from considering

materials that support a different interpretation.

A. Rule 44.1 Grants Federal Courts Broad Latitude

To Decide Questions Of Foreign Law Based On Any

Relevant Material Or Source

1. Federal courts encounter questions of foreign law

in many different contexts. In some cases, choice-of-law

principles point to foreign law as the rule of decision for

the parties’ dispute. See, eg., Day & Zimmermann,

Inc. v. Challoner, 423 U.S. 3, 3-4 (1975) (per curiam). In

others, foreign law controls or bears upon a specific is-

sue in a case that is otherwise governed by U.S. law:

e As this case illustrates, foreign law may in some

circumstances prevent the imposition of liability

under the U.S. antitrust laws. See p. 3, swpra.

e The Lacey Act Amendments of 1981, 16 U.S.C.

3372(a)(2)(A), impose civil and criminal penalties

for the importation of “fish or wildlife taken, pos-

sessed, transported, or sold in violation of * * *

13

any foreign law.” See, eg., United States v.

Mitchell, 985 F.2d 1275, 1279-1280 (4th Cir.

1993).

A mail- or wire-fraud prosecution may be based on

a scheme to defraud involving foreign property,

which may require “a court to recognize foreign

law to determine whether the defendant violated

U.S. law.” Pasquantino v. United States, 544

U.S. 349, 369 (2005).

The application of the federal tax laws sometimes

turns on “foreign law.” Guardian Indus. Corp.

v. United States, 477 F.3d 1368, 1371 (Fed. Cir.

2007) (citation omitted) (credits for payment of

foreign taxes).

A contract governed by foreign law may provide

a defense to a claim under federal intellectual-

property law. See, eg., Bodwm USA, Inc. v.

La Cafetiere, Inc. , 621 F.3d 624, 625-628 (7th Cir.

2010).

A foreign law prohibiting disclosure may in some

circumstances excuse or affect the remedy for

noncompliance with an order requiring the pro-

duction of documents located abroad. See Société

Nationale Industrielle Aérospatiale v. United

States Dist. Court, 482 U.S. 522, 544-546 & n.29

(1987) (Aérospatiale).

Federal Rule of Civil Procedure 4(f), which gov-

erns service of process in a foreign country, in-

corporates “the foreign country’s law for service

in that country.” Fed. R. Civ. P. 4(f)(2)(A); see,

e.g., Prewitt Enters., Inc. v. Organization of Pe-

troleum Exporting Countries, 353 F.3d 916, 923-

14

924 & n.11 (11th Cir. 2003), cert. denied, 543 U.S.

814 (2004).

2. English and American common law treated for-

eign law “as a question of fact to be pleaded and proved

as a fact by the party whose cause of action gy defense

depend|ed] upon alien law.” Arthur R. Miller, Federal

Rule 44.1 and the “Fact” Approach to Determining

Foreign Law: Death Knell for a Die-Hard Doctrine,

65 Mich. L. Rev. 613, 617 (1967) (Miller). In 1801, this

Court endorsed the common-law rule, instructing that

“the laws of a foreign nation” must be “proved as facts.”

Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 37-38 (1801); see,

e.g., Church v. Hubbart, 6 U.S. (2 Cranch) 187, 236-237

(1804) (“Foreign laws are well understood to be facts.”).

Treating questions of foreign law as questions of fact

“had a number of undesirable practical consequences.”

9A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2441, at 324 (3d ed. 2008)

(Wright & Miller). Foreign law “had to be raised in the

pleadings” and proved “in accordance with the rules of

evidence.” /bid. Courts were restricted to the evidence

submitted by the parties. /bid. And appellate review

was deferential and limited to the record made in the

trial court. Jbid.

After the adoption of the Federal Rules of Civil Pro-

cedure in 1938, some federal courts began to invoke

state procedures that departed from the common-law

approach by allowing courts to take judicial notice of for-

eign law. Miller 654-656; see Fed. R. Civ. P. 43(a) (1964)

(incorporating state evidentiary rules). But those state

procedures varied, and some were “time consuming and

expensive.” Fed. R. Civ. P. 44.1 advisory committee’s

note (1966) (Adoption) (Advisory Committee’s Note).

15

The process of determining foreign law thus remained

“cumbersome.” Pasquantino, 544 U.S. at 370.

3. In 1966, this Court promulgated Rule 44.1 to “fur-

nish Federal courts with a uniform and effective proce-

dure for raising and determining an issue concerning

the law of a foreign country.” Advisory Committee’s

Note. The rule accomplishes that goal by providing

that, “[iJn determining foreign law, the court may con-

sider any relevant material or source, including testi-

mony, whether or not submitted by a party or admissible

under the Federal Rules of Evidence.” Fed. R. Civ. P.

44.1. The rule also specifies that the court’s determina-

tion “must be treated as a ruling on a question of law,”

rather than as a finding of fact. Jbid.*

Rule 44.1 “improves on [the procedures] available at

common law.” Pasquantino, 544 U.S. at 370. By allow-

ing courts to rely on any relevant material, regardless

of its admissibility under the Federal Rules of Evi-

dence, the rule “provides flexible procedures for pre-

senting and utilizing material on issues of foreign law.”

Advisory Committee’s Note. By specifying that the

court’s determination is a conclusion of law, the rule en-

sures de novo appellate review. /bid. And by providing

that courts are not limited to materials submitted by the

parties, the rule recognizes that courts “may wish to

reexamine and amplify material that has been pre-

sented by counsel in partisan fashion or in insufficient

detail.” bid. The “obvious” purpose of those changes

was “to make the process of determining alien law iden-

tical with the method of ascertaining domestic law to the

® Federal Rule of Criminal Procedure 26.1 establishes “substan-

tially the same” rule for criminal cases. Fed. R. Crim. P. 26.1 advi-

sory committee’s note (1966) (Adoption). Given that similarity, this

brief relies on decisions applying both rules.

16

extent that it is possible to do so.” 9A Wright & Miller

§ 2444, at 338-342.

Courts deciding questions of foreign law under Rule

44.1 rely on a variety of materials, including “[s]tatutes,

administrative materials, and judicial decisions”; “sec-

ondary sources such as texts and learned journals”; “ex-

pert testimony”; and “any other information” that may

be probative. 9A Wright & Miller § 2444, at 342-343

(3d ed. 2008 & Supp. 2017). In evaluating those materi-

als, a court “is free * * * to give them whatever proba-

tive value [it] thinks they deserve.” /d. at 343. The

guiding principle is that courts “should use the best of

the available sources” to reach an accurate interpreta-

tion of foreign law. Bodum USA, 621 F.3d at 628.

B. A Foreign Government’s Characterization Of Its Own

Law Is Ordinarily Entitled To Substantial Weight, But

Is Not Binding On Federal! Courts

Federal courts deciding questions of foreign law un-

der Rule 44.1 are sometimes presented with the views

of the relevant foreign government. Those views always

warrant respectful consideration, and they will ordinar-

ily be entitled to substantial weight. But the appropri-

ate weight in each case will depend on the circum-

stances, and a federal court is neither bound to adopt

the foreign government’s characterization nor required

to ignore other relevant materials.

1. Federal courts considering questions of foreign

law may be presented with the views of the relevant for-

eign government through a variety of formal and infor-

mal mechanisms. Often, the foreign state (or one of its

agencies or instrumentalities) is itself a party to the lit-

igation. See, e.g., Northrop Grumman Ship Sys., Inc.

v. Ministry of Def. of the Republic of Venezuela, 575

F.3d 491, 496-498 & n.8 (5th Cir. 2009); McKesson

17

HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101,

1108-1109 (D.C. Cir. 2001) (McKesson), cert. denied,

537 U.S. 941 (2002), vacated in part on other grounds,

320 F.3d 280 (D.C. Cir. 2003); In re Oil Spill by the

Amoco Cadiz, 954 F.2d 1279, 1289, 1312 (7th Cir. 1992)

(Amoco Cadiz).

As this case illustrates, foreign governments (and

their agencies and officials) may also express their

views through amicus briefs or similar submissions in

cases where no foreign governmental entity is a party.

Pet. App. 189a-223a; see, e.g., United States v. McNab,

331 F.3d 1228, 1239-1240 & n.23 (11th Cir. 2003), cert.

denied, 540 U.S. 1177 (2004). Alternatively, a party may

submit an affidavit or testimony from a foreign official.

See, e.g., United States v. Schultz, 333 F.3d 393, 400-401

(2d Cir. 2003), cert. denied, 540 U.S. 1106 (2004); United

States v. 2,507 Live Canary Winged Parakeets, 689

F. Supp. 1106, 1109-1110 (S.D. Fla. 1988). Or a party

may rely on an interpretation that the relevant foreign

sovereign has issued outside the context of the litiga-

tion. See, e.g., Abbott v. Abbott, 560 U.S. 1, 10 (2010)

(letter from a Chilean agency); Access Telecom, Inc. v.

MCI Telecomms. Corp., 197 F.3d 694, 714 (5th Cir.

1999) (circular issued by a Mexican agency), cert. de-

nied, 531 U.S. 917 (2000).

2. Neither Rule 44.1 nor any other rule or statute

specifically addresses the weight that a federal court

determining foreign law should give to the views of the

foreign government. As a general matter, courts in de-

ciding such questions should be guided by principles of

international comity, “the spirit of cooperation in which

a domestic tribunal approaches the resolution of cases

touching the laws and interests of other sovereign

states.” Aérospatiale, 482 U.S. at 543 n.27. In other

18

contexts, this Court has “long recognized the demands

of comity in suits involving foreign states, either as par-

ties or as sovereigns with a coordinate interest in the

litigation.” /d. at 546. To afford appropriate respect for

“(t]he dignity of a foreign state,” Republic of Philip-

pines v. Pimentel, 553 U.S. 851, 866 (2008), a federal

court should carefully consider that state’s proffered

views about the meaning of its own laws.

Granting substantial weight to the views of the rele-

vant foreign government is also eminently sensible.

“Among the most logical sources for [a] court to look to

in its determination of foreign law are the foreign offi-

cials charged with enforcing the laws of their country,”

who are intimately familiar with the context and nu-

ances of the foreign legal system. McNab, 331 F.3d at

1241; ef. Bodum USA, 621 F.3d at 638-639 (Wood, J.,

concurring) (noting the risk that an unaided U.S. reader

may “miss nuances in the foreign law”). Ordinarily, a

court therefore “reasonably may assume” that interpre-

tations offered by the relevant foreign agencies or offi-

cials “are a reliable and accurate source” of the meaning

of foreign law. McNab, 331 F.3d at 1241.

3. The federal courts have generally adhered to the

foregoing principles. Courts have recognized that “a for-

eign sovereign’s views regarding its own laws merit—

although they do not command—some degree of defer-

ence.” Karaha Bodas Co. v. Perusahaan Pertambangan

Minyak Dan Gas Bumi Negara, 313 F.3d 70, 92 (2d Cir.

2002), cert. denied, 539 U.S. 904 (2003); see, e.g., Access

Telecom, 197 F.3d at 714 (“([C]ourts may defer to for-

eign government interpretations.”); Amoco Cadiz, 954

F.2d at 1312 (“A court of the United States owes sub-

stantial deference to the construction France places on

its domestic law.”). In Abbott, for example, this Court

19

stated that the views of a Chilean agency were “notable”

and “supporti(ed] the |Court’s] conclusion” about the

meaning of Chilean law. 560 U.S. at 10.

Courts have not, however, treated a foreign govern-

ment’s characterization of its own law as binding. In-

stead, they have recognized that the weight given to

such a characterization should depend on the circum-

stances. For example, when “a foreign government

changes its original position” or otherwise makes con-

flicting statements, a court is not bound to accept its

most recent statement, or the one offered in litigation.

McNab, 331 F.3d at 1241; see, e.g., Export-Import Bank

of the Republic of China v. Central Bank of Liberia,

No. 15-ev-9565, 2017 WL 1378271, at *4 (S.D.N.Y. Apr.

12, 2017). A court likewise may decline to adopt an in-

terpretation if it is unclear or unsupported, if it fails to

address relevant authorities, or if it is implausible in

light of other relevant materials. See, e.g., Themis Cap-

ital, LLC v. Democratic Republic of Congo, 626 Fed.

Appx. 346, 348 (2d Cir. 2015); McKesson, 271 F.3d at

1108-1109.

4. In describing the weight that should be given to a

foreign government’s views about its own law, parties

and lower courts have sometimes borrowed domestic

administrative-law standards. See, e.g., Resp. Supp. Br.

2-3; Amoco Cadiz, 954 F.2d at 1312. In our view, such

analogies are generally unhelpful because those stand-

ards are grounded in domestic considerations. For ex-

ample, courts defer to reasonable agency interpreta-

tions under Chevron U.S.A. Inc. v. NRDC, Inc., 467

U.S. 837 (1984), in specific circumstances, including

when Congress has “delegated authority to the agency

generally to make rules carrying the force of law” and

“the agency interpretation claiming deference was

20

promulgated in the exercise of that authority.” United

States v. Mead Corp., 533 U.S. 218, 226-227 (2001). The

standard articulated in Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944), is more flexible, but it too has

domestic-law roots and a specific meaning acquired

through repeated domestic applications. See Mead,

533 U.S. at 234-235.

Those administrative-law doctrines do not readily

translate to the Rule 44.1 context. “[T]he world’s many

diverse legal and governmental systems” differ greatly

from ours and from each other. McNab, 331 F.3d at 1237

(citation omitted). The views of foreign governments

about those varying systems are presented to the federal

courts under a wide range of differe -* ircumstances.

And the submissions themselves diff. « ceatly in their

formality, thoroughness, and authority. See pp. 16-17,

supra. Deference standards that were crafted for spe-

cific areas of federal administrative law and that carry

decades of accumulated domestic-law meanings are ill-

suited for this very different context.

5. Rather than transplanting a standard from do-

mestic administrative law, a federal court confronted

with a disputed question of foreign law should proceed

in the same manner as a court facing any other unset-

tled legal question: By seeking to resolve it “with the

aid of such light as is afforded by the materials for de-

cision at hand.” Salve Regina Coll. v. Russell, 499 U.S.

225, 227 (1991) (brackets and citation omitted). As this

Court emphasized in addressing the analogous problem

of determining the law of former Mexican territories

before their annexation into the United States, “it has

always been held that it is for the court to decide what

weight is to be given” to the legal materials available in

21

a particular case. Fremont v. United States, 58 U.S.

(17 How.) 542, 557 (1855).

When those materials include an interpretation by

the relevant foreigr. government, that interpretation

should be afforded respectful consideration and will or-

dinarily be entitled to substantial weight. The precise

weight that is appropriate in a particular case will nec-

essarily depend on the circumstances. Those circum-

stances are too diverse to be reduced to a formula or

rule, but the relevant considerations include the inter-

pretation’s clarity, thoroughness, and support; its con-

text and purpose; the nature and transparency of the

foreign legal system; the role and authority of the entity

or official offering the interpretation; its consistency

with the foreign government’s past positions; and any

other corroborating or contradictory materials.*

C. The Court Of Appeals Erred By Treating The Ministry's

Amicus Brief As Binding And By Disregarding Other

Relevant Materials

The court of appeals held that, when a foreign gov-

ernment “directly participates in U.S. court proceed-

ings by providing a sworn evidentiary proffer regarding

the construction and effect of its laws and regulations,

which is reasonable under the circumstances presented,

* As we explained in our petition-stage brief (at 8-9 n.1), the

United States’ amicus brief in Matsushita Electric Industrial Co. v.

Zenith Radio Corp., 475 U.S. 574 (1986), suggested a somewhat

more deferential approach. The position we advocate here is con-

sistent with the United States’ more recent brief in McNad, which

endorsed what had by then become the courts of appeals’ genera!

practice of affording “substantial—but measured—deference to a

foreign nation’s representations.” U.S. Br. in Opp. at 16-17, McNab

v. United States, 540 U.S. 1177 (2004) (No. 03-622).

22

a U.S. court is bound to defer.” Pet. App. 25a. In ap-

plying that standard and concluding that the Ministry’s

characterization of Chinese law was “reasonable,” the

court generally limited its inquiry to the four corners of

the Ministry’s brief and the sources cited therein. /d.

at 27a-29a. The court also emphasized that a federal

court may not “embark on a challenge to a foreign gov-

ernment’s official representation to the court regarding

its laws or regulations.” /d. at 26a.

In practical effect, therefore, the court of appeals

held that a federal court is bound to adopt a foreign gov-

ernment’s submission characterizing its own law—and

may not consider other relevant material—so long as

that characterization is facially reasonable.‘ That rigid

rule is inconsistent with the policies underlying Rule

44.1 and with this Court’s treatment of analogous sub-

missions from U.S. States. And the court of appeals

erred in concluding that its approach was supported by

United States v. Pink, 315 U.S. 203 (1942), or by consid-

erations of comity and reciprocity.

1. The court of appeals’ rule of binding deference is

inconsistent with the policies embodied in Rule 44.1

As the court of appeals observed, Rule 44.1 does not

expressly address the weight a federal court should give

to a foreign government’s submission characterizing its

laws. Pet. App. 22a. In at least two respects, however,

the court’s approach departs from the policies embodied

in that rule.

a. Rule 44.1 seeks to align the treatment of foreign

and domestic law by providing district courts with

* The court of appeals left open the possibility that “deference may

be inappropriate” if the foreign government’s submission includes

“no documentary evidence or reference of law.” Pet. App. 25a n.8.

23

broad latitude to “determin{e] foreign law” based on

“any relevant material or source.” That direction re-

flects a judgment that “whenever possible issues of for-

eign law should be resolved on their merits and on the

basis of a full presentation and evaluation of the availa-

ble materials.” 9A Wright & Miller § 2444, at 351.

The court of appeals’ approach is inconsistent with

that sound policy because it precludes a court from con-

sidering other relevant material whenever it is pre-

sented with a facially reasonable submission from a for-

eign government. Here, for example, the district court

concluded that the Ministry’s submissions “fail[ed] to

address critical provisions of the [governing legal re-

gime],” Pet. App. 119a, and that they incorrectly im-

plied that a superseded legal regime “was still control-

ling,” id. at 132a n.45. The court also highlighted, inter

alia, China’s statement to the WTO that it had

“gli]ve[n] up ‘export administration ... of vitamin C’”

at the end of 2001, id. at 74a (citation omitted), and the

Chamber's statements that respondents had “voluntar-

ily” agreed on prices and quantities “without any gov-

ernment intervention,” id. at 173a-174a (citation and

emphases omitted).

The court of appeals did not conclude that the dis-

trict court’s reliance on that material was substantively

wrong or irrelevant to the proper interpretation of Chi-

nese law. To the contrary, it stated that, “if the Chinese

Government had not appeared in this litigation, the dis-

trict court’s careful and thorough treatment of the evi-

dence *** would have been entirely appropriate.”

Pet. App. 30a n.10. But because the Ministry had filed

a brief that the court deemed facially reasonable, it con-

cluded that the district court had erred by considering

24

additional material and thereby “embark[ing] on a chal-

lenge to [the Ministry’s] official representation.” /d. at

26a. A standard that does not permit a court even to

consider such relevant information is inconsistent with

federal courts’ responsibility to “determinje] foreign

law” based on “any relevant material or source.” Fed. R.

Civ. P. 44.1.

b. The court of appeals also departed from the poli-

cies embodied in Rule 44.1 by placing dispositive weight

on the fact that the Ministry had “directly partici-

pate[d]” in the litigation by offering what the court

called a “sworn evidentiary proffer.” Pet. App. 25a; see

id. at 23a (distinguishing a case in which the foreign

government “did t.ot appear before the court”). That is

true for two reasons.

First, the court of appeals’ characterization of the

Ministry’s submission as “a sworn evidentiary proffer,”

Pet. App. 25a, was inapt. Rule 44.1 abrogated the

common-law rule treating questions of foreign law as

questions of fact, and it specifies that a district court’s

determination of an issue of foreign law “must be

treated as a ruling on a question of law.” Although the

Ministry’s amicus brief was surely relevant to the dis-

trict court’s determination whether Chinese law re-

quired the anticompetitive conduct at issue in this case,

that legal brief was neither a “sworn” document nor an

“evidentiary proffer.” See Pet. Br. 35-36. By the same

token, a court that considers but ultimately reiects a

foreign government’s characterization of its law. does

not thereby accuse the foreign government of misrep-

resenting the pertinent facts. Cf. pp. 26-27, infra (ex-

plaining that federal courts give significant but not con-

trolling weight to a state attorney general’s characteri-

zation of state law).

25

Second, the court of appeals erred by holding that

greater deference is required when a foreign govern-

ment participates directly in litigation. That fact may

bear on the weight a foreign government’s views should

receive. It ensures, for example, that the government

has focused on the specific foreign-law issue that is ac-

tually before the court. But many other factors also

bear on the weight that should be afforded to a foreign

government’s interpretation, see p. 21, supra, and the

court of appeals did not explain why it placed dispositive

weight on this single consideration. In some circum-

stances, moreover, a U.S. court might justifiably view a

pronouncement prepared for litigation purposes with

greater skepticism than it would view a similar pro-

nouncement drafted with no specific controversy in

mind. Cf. Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 213 (1988) (“Deference to what appears to be noth-

ing more than an agency’s convenient litigating position

would be entirely inappropriate.”).

The court of appeals’ rule, moreover, would automat-

ically inure to the benefit of any foreign government

that appears in U.S. court as a plaintiff or defendant in

a case controlled in whole or in part by its domestic

laws—a relatively common occurrence.’ The court iden-

tified no sound reason why a federal court should be

® See, e.g., Themis Capital, 626 Fed. Appx. at 348 (suit against the

Democratic Republic of Congo to recover debt); Karaha Bodas, 313

F.3d at 75, 92 (action to execute on assets owned by Indonesia);

Northrop Grumman Ship Sys., 575 F.3d at 496-498 & n.8 (suit

against Venezuela for contract damages claimed to be governed in

part by Venezuelan law); McKesson, 271 F.3d at 1103 (suit against

Iran arising out of expropriation of property); DRC, Inc. v. Republic

of Honduras, 71 F. Supp. 3d 201, 209-210 & n.7 (D.D.C. 2014) (suit

against Honduras to enforce arbitral award); Republic of Ecuador

v. ChevronTexaco Corp., 499 F. Supp. 2d 452, 460-461 (S.D.N.Y.

26

bound, in any suit to which a foreign government is a

party, by whatever facially reasonable litigating posi-

tion that party may assert concerning the proper under-

standing of its own laws. That result would be particu-

larly anomalous because Rule 44.1 allows courts to look

beyond the “material presented by the parties” specifi-

cally to ensure that courts have the ability to “reex-

amine and amplify material that has been presented

by counsel in partisan fashion or in insufficient detail.”

Advisory Committee Note. That consideration applies

with full foree when the litigant is a foreign government.

2. The court of appeals’ rule of binding deference is

inconsistent with this Court's treatment of analogous

submissions from U.S. States

The court of appeals’ rule of binding deference is in-

consistent with this Court’s approach in the other prin-

cipal circumstance in which federal courts are pre-

sented with the views of other sovereigns on the proper

interpretation of their laws. When federal courts re-

ceive submissions by U.S. States addressing the proper

interpretation of state law, the courts give those submis-

sions significant but not controlling weight. Nothing in

the text, history, or purposes of Rule 44.1 suggests that

a federal court determining foreign law must give

greater weight to the views of a foreign sovereign.

This Court has long held that “(t]he law of any State

of the Union * * * is a matter of which the courts of the

United States are bound to take judicial notice, without

plea or proof.” Lamar v. Micou, 114 U.S. 218, 223

2007) (suit by Ecuador seeking to stay arbitration); Republic of Tur-

key v. OKS Partners, 146 F.R.D. 24, 27-28 (D. Mass. 1993) (suit by

Turkey to recover artifacts); Government of Peru v. Johnson, 720

F. Supp. 810, 812-814 (C.D. Cal. 1989) (same by Peru).

27

(1885). If the applicable state law is established by a de-

cision of “the State’s highest court,” that decision is

“binding on the federal courts.” Wainwright v. Goode,

464 U.S. 78, 84 (1983) (per curiam); see Mullaney v. Wil-

bur, 421 U.S. 684, 691 (1975). Otherwise, a federal court

must “consider all of the available legal sources” to pre-

dict “how the state’s highest court would answer the

open questions.” 19 Wright & Miller § 4507, at 178-179

(3d ed. 2016); see Salve Regina Coll., 499 U.S. at 227.

In deciding questions of state law, the views of the

State as expressed by its attorney general are “entitled

to weight.” 19 Wright & Miller § 4507, at 157-158; see

Arizonans for Official English v. Arizona, 520 U.S. 43,

76 n.30 (1997) (citing with approval an opinion conclud-

ing that the “reasoned opinion of [a] State Attorney

General should be accorded respectful consideration”).

This Court has made clear, however, that those views

are not entitled to “controlling weight.” Stenberg v.

Carhart, 530 U.S. 914, 940 (2000); see, e.g., Virginia v.

American Booksellers Ass’n., 484 U.S. 383, 395 (1988).

The court of appeals gave no sound reason for requiring

that federal courts give greater weight to the views of

foreign governments.

3. This Court’s decision in Pink does not support the

court of appeals’ rule of binding deference

The court of appeals believed that its rigid approach

was compelled by this Court’s pre-Rule 44.1 decision in

Pink. Pet. App. 20a, 22a-23a. That is not correct. Pink

arose out of an action brought by the United States to

recover assets of the U.S. branch of a Russian insurance

company that had been nationalized in 1918 after the

Russian revolution. 315 U.S. at 210. In 1933, the gov-

ernment of the Soviet Union assigned the nationalized

assets to the United States. /d. at 211. The disposition

28

of the case turned on the extraterritorial effect of the

nationalization decree—specifically, whether the de-

cree had reached the assets of the Russian insurance

company located in the United States, or instead had

been limited to property in Russia. /d. at 213-215, 217.

To support its position that the nationalization de-

cree had reached all of the company’s assets, the United

States obtained an “official declaration by the Commis-

sariat for Justice” of the Russian Socialist Federal So-

viet Republic. Pink, 315 U.S. at 218. The declaration

certified that the decree had reached “the funds and

property of former insurance companies * * * irrespec-

tive of whether it was situated within the territorial lim-

its of [Russia] or abroad.” /d. at 220 (citation omitted).

This Court held that “the evidence supported [a] find-

ing” that “the Commissariat for Justice ha[d] power to

interpret existing Russian law.” Jbid. “That being

true,” the Court concluded that the “official declaration

[wa]s conclusive so far as the intended extraterritorial

effect of the Russian decree [wa]s concerned.” /bid.

This Court’s treatment of the declaration as conclu-

sive was thus premised on an independent finding about

the Commissariat’s authority within the Soviet legal

system. Pink, 315 U.S. at 220. The declaration was also

obtained by the United States, through official “diplo-

matic channels.” /d. at 218. The Commissariat’s decla-

ration was thus in some respects akin to a state supreme

court’s answer to a question of state law certified by

a federal court. Cf. Arizonans for Official English,

520 U.S. at 76-77. There was apparently no indication

that the declaration was incomplete or inconsistent with

the Soviet Union’s past statements, and the Court em-

phasized that the declaration was consistent with expert

evidence that “gave great credence to [the] position”

29

that the nationalization decree reached property lo-

cated abroad. Pink, 315 U.S. at 218. The Court’s state-

ment that the Commissariat’s declaration was “conclu-

sive” under those unusual circumstances does not sug-

gest that every submission by a foreign government is

entitled to the same weight.

4. Considerations of reciprocity and comity do not

support the court of appeals’ rule of binding deference

The court of appeals also reasoned that a foreign

government’s characterization of its own laws should be

afforded “the same respect and treatment that we

would expect our government to receive in comparable

matters.” Pet. App. 26a. That concern for reciprocity

was sound, but it does not support the court’s approach.

In fact, the opposite is true.

When the United States litigates questions of U.S.

law in foreign tribunals, it expects that the views sub-

mitted on its behalf will be afforded substantial weight,

and that its characterizations of U.S. law will be ac-

cepted because they are accurate and well-supported.

But the United States historically has not argued that

foreign courts are bound to accept its characterizations

or precluded from considering other relevant material.°

And although other nations’ approaches to determining

foreign law vary, we are not aware of any foreign-court

decision holding that representations by the United

States are entitled to such conclusive weight.

* Respondents assert (Supp. Br. 7-8) that the United States

sought a greater degree of deference in a 2002 submission to a WTO

panel. In fact, that submission acknowledged that “the Panel is not

bound to accept the interpretation [of U.S. law) presented by the

United States.” Second Written Submission of the United States of

America, United States—Section 129(c)(1) of the Uruguay Round

Agreements Act, WT/DS221 4 11 (Mar. 8, 2002).

30

The understanding that a government’s expressed

view of its own law is ordinarily entitled to substantial

but not conclusive weight is also consistent with two in-

ternational treaties that establish formal mechanisms

by which one government may obtain from another an

official statement characterizing its laws. Those trea-

ties specify that “[t}he information given in reply shall

not bind the judicial authority from which the request

emanated.” European Convention on Information on

Foreign Law art. 8, June 7, 1968, 720 U.N.T.S. 147, 154;

see Organization of American States, Inter-American

Convention on Proof of and Information on Foreign

Law art. 6, May 8, 1979, O.A.S.T.S. No. 53, 1439

U.N.T-.S. 107, 111 (similar). Although the United States

is not a party to those treaties, they reflect an interna-

tional practice that is inconsistent with the court of ap-

peals’ approach, and they confirm that the court’s rule

of binding deference is not supported by considerations

of international comity.

D. This Court Should Vacate The Decision Below And

Remand The Case To Allow The Court Of Appeals To

Apply The Correct Legal Standard

Because the court of appeals concluded that the dis-

trict court was bound to defer to the Ministry’s amicus

brief, the court did not consider the shortcomings that

the district court had identified in the Ministry’s sub-

missions or the other aspects of “the district court’s

careful and thorough treatment of the evidence before

it.” Pet. App. 30a n.10. The question whether the dis-

31

trict court correctly interpreted Chinese law is not be-

fore this Court, and we do not take a position on it.’ But

the materials identified by the district court were, at

minimum, relevant to the weight that the Ministry’s

submissions should receive and to the question whether

Chinese law required respondents’ conduct. This Court

should therefore vacate the decision below and remand

" Respondents are wrong in stating (Supp. Br. 6-7) that the

United States “affirmed” their interpretation of Chinese law in pro-

ceedings before the WTO. Those proceedings involved a different

record and other commodities, not vitamin C. See First Written

Submission of the United States of America, China—Measures

Related to the Exportation of Various Raw Materials, DS394,

DS395, DS398 4 4 (June 1, 2010). Based on China’s representations

to the district court in this case—which were against China’s inter-

est in the WTO proceeding—the United States argued that export

restraints adopted by a different China Chamber of Commerce

were “attributable to China” for purposes of China’s compliance

with its WTO obligations. /d. % 208. But in addition to involving

different commodities and a different record, the WTO proceeding

was governed by a different legal standard. This litigation has fo-

cused on the question whether Chinese law required respondents to

fix the prices and output of vitamin C exports. In contrast, as the

WTO pane! explained, “[p)rivate actions” have been “found to be ‘at-

tributable’ to a government, and thus subject to challenge [in WTO

proceedings |, where there is ‘some governmental connection to

or endorsement of those actions.” World Trade Organization,

China—Measures Related to the Exportation of Various Raw Ma-

terials: Reports of the Panel, WT/DS394/R, WT/DS396/R, WT/DS398/R

4 7.1004 (July 5, 2011) (citation omitted). That standard may be sat-

isfied even where a nation’s law does not require the relevant pri-

vate conduct.

32

to allow the court of appeals to consider that question

under the correct legal standard."

CONCLUSION

The judgment of the court of appeals should be

vacated, and the case should be remanded for further

proceedings consistent with this Court’s opinion.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN H. FLETCHER

i to the Solicitor

KRISTEN C. LIMARZI

JENNIFER G. NEWSTEAD JAMES J. FREDRICKS

Legal Adviser FRANCES MARSHALL

Department of State Attorneys

MARCH 2018

* The court of appeals analyzed Chinese law, and gave controlling

weight to the Ministry’s characterization of that law, in the course of

adjudicating (and sustaining) respondents’ comity defense. As we

explained at the petition stage (Br. 20), the court’s comity analysis

was erroneous in other respects as well. For example, the court gave

inadequate weight to the interests of the U.S. victims of the alleged

price-fixing cartel and to the interests of the United States in en-

forcement of its laws. Pet. App. 34a-35a. Conversely, the court gave

too much weight to China’s objections to this suit. Jd at 35a. Unlike

a statement from the Executive Branch of the U.S. government, a

foreign sovereign’s objection to a suit does not, in itself, necessarily

indicate that the case will harm U.S. foreign relations.