Amicus Curiae Brief — Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 137 S. Ct. 2320 (2017) (No. 16-1220)
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No. 16-1220
—_—_—_—_— ee
In The
Supreme Court of the United States
ANIMAL SCIENCE PRODUCTS, INC., ET AL.,
Petitioners,
Vv.
HEBEI WELCOME PHARMACEUTICAL Co, LTD., ET AL.,
Respondents.
Brief Of Professors Of Conflict Of Laws And Civil
Procedure As Amici Curiae In Support Of
Petitioners
On Writ of Certiorari to the United States Court of
Appeals for the Second Circuit
NBIL A.F. Popovic
COUNSEL OF RECORD
SHEPPARD, MULLIN,
RICHTER & HAMPTON LLP
Four Embarcadero Center,
17 Floor
San Francisco, CA
94111-4109
npopovic@sheppardmullin.com
415-774-3156
Counsel for Amici Curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTEREST OF AMICI CURIAE
SUMMARY OF ARGUMENT
I. THE SECOND CIRCUIT'S
“BOUND-TO-DEFER” RULE IS
INCONSISTENT WITH BASIC
AMERICAN CONFLICT-OF-
LAWS PRINCIPLES. ...........00:.c00000eee00e8 4
A.
THE SECOND CIRCUIT'S
RULE IS INCONSISTENT
WITH FEDERAL RULE
OF CIVIL PROCEDURE
GG.3. conrececcsesescenevesscssncsseosenvseses
THE SECOND CIRCUIT'S
RULE IS INCONSISTENT
WITH THE PRINCIPLE
THAT U.S. COURTS
SHOULD ACCURATELY
DETERMINE FOREIGN
CORRE RRR ERR REHM H Ee
SORES SRT Eee RR eee eee
— 5
eID TD ceniniaveienneteectnintineseummnsemaes 11
THE SECOND CIRCUIT'S
RULE VIOLATES THE
PRINCIPLE OF
JUDICIAL
INDEPENDENCE IN
THE DETERMINATION
OF FOREIGN LAW. ................. 16
-li-
Il. THE SECOND CIRCUIT'S
RULE IS INCONSISTENT
WITH FOREIGN AND
INTERNATIONAL PRACTICE. ......... 19
A.
THE SECOND CIRCUIT'S
RULE IS INCONSISTENT
WITH FOREIGN
PERFORM cavevsesvecescscosseenseoes
THE SECOND CIRCUIT'S
RULE IS INCONSISTENT
WITH INTERNATIONAL
eo ee
Il. DEFERENCE PRINCIPLES
SHOULD NOT BE PART OF
THE DETERMINATION OF
PRRIDS BANU c cxsceseresctarecnnpecscecsscosnees 25
A.
SMRH :4855987 33.2
A RULE REQUIRING
DEFERENCE IS
INAPPROPRIATE
BECAUSE IT WOULD
ALLOW FOREIGN
GOVERNMENTS TO
UNDULY INFLUENCE
THE APPLICATION OF
INTERNATIONAL
COMITY DOES NOT
REQUIRE DEFERENCE
TO A FOREIGN
GOVERNMENT'S
STATEMENT ABOUT
FOREIGN LAW. .................0+.
2-2 1D
er
“tir
C. THE SECOND CIRCUIT'S
“BOUND-TO-DEFER”
APPROACH RAISES
COMPLEX QUESTIONS
OF FOREIGN LAW THAT
MIGHT THEMSELVES
RAISE INTERNATIONAL
COMITY CONCERNG. ............. 34
[V. U.S, COURTS SHOULD GIVE
RESPECTFUL
CONSIDERATION TO A
FOREIGN GOVERNMENT'S
STATEMENT ABOUT
FOREIGN LAW, BUT THEY
STILL MUST DETERMINE
FOREIGN LAW
INDEPENDENTLY . ...............cccccceeeee0s 36
SMRH 4855987 33.2
“lv
TABLE OF AUTHORITIES
Federal Cases
Access Telecom, Inc. v. MCI Telecomms.
Corp.
197 F.3d 694, 713 (5th Cir.1999..............
Access Telecom, Inc. v. MCI Telecomms.
Corp.
197 F.3d 694, 713 (5th Cir. 1999.............
The Amistad, 40 U.S. 518, 520, 593-97
ee ees eeraen
Bank of Augusta v. Earle
38 U.S. (13 Pet.) 519 (1839).........0..0000000..
Bodum USA, Inc. v. La Cafetiére, Inc.
621 F.3d 624 (7th Cir. 2010) (Wood,
ARS BARRE Spl Aen Ts
Breard v. Greene
5623 U.S. 371, 375 (1998).............eceeseeee
Colo. River Water Conservation Dist. v.
United States
ee es ee rcricrscescipnnnntencesiennevsinn
de Fontbrune v. Wofsy
838 F.3d 992 (9th Cir. 2016)...
Garcia v. Pinelo
808 F.3d 1158 (7th Cir. 2015)..................
SMRH 4855987 33.2
Page(s)
eesevcesvecs 27
Gutierrez’ Brizuela v. Lynch
834 F.3d 1142 (10th Cir. 2016)
ES, SUS ETE aa TU 2 CO ODOR Or en 18
Intel Corp. v. Advanced Micro Devices,
Ine.
I cd ianconieuniaal 18
lracheta v. Holder
TBO F.3d 410 Gets Cle. B01 BD .cccccccccccccscccscccsccosces 15
Lehman Brothers v. Schein
ike SIE neve ey, 37
Madanes v. Madanes
186 F.R.D. 279 (S.D.N.Y. 1999) ....0..0ccccccccceseeeeenee 12
McKesson Corp. v. Islamic Republic of
Tran
FEB F268 BED GAG. Glo, BOAD vecvcceserececvesecsvcsesceses 15
Pazcoguin v. Radcliffe
292 F.3d 1209 (9th Cir. 2002)..............cccccccecceeeees 17
PNC Financial Services Group, Inc. v.
CLR.
603 F.3d 119 (D.C. Cir. 2007)........:..:cccccsseccsesseees 17
Products and Ventures International v.
2017 WL 201703 (N.D. Cal. Jan. 18,
Rationis Enterprises Inc. v. Hyundai
Mipo Dockyard Co.
426 F.3d 580 (2d Cir, 2005) .......cccccccccccecceeeeeeneeees 11
SMRH '485598733.2
RJR Nabisco, Inc. v. European
Community, 136 S.Ct. 2090, 2108
i eiilaaniaesbeeddidieiseinepiceubitiiccndatmicncnenndcenchesssesnnitis 30
Sanchez-Llamas v. Oregon
Be i anitdiinsiscdecnsinmsisnssescocsminenesesnsscnns 36
United States v. McNab
331 F.3d 1228 (11th Cir. 2003)................ 14, 15, 28
United States v. Pink
ERIE NE oe Se a Soe 7, 8,10
In re Vitamin C Antitrust Litigation
584 F. Supp. 2d 546 (E.D.N.Y. 2008).................. 18
In re Vitamin C Antitrust Litigation
810 F. Supp. 2d 522 (E.D.N.Y. 2011)... 29
In re Vitamin C Antitrust Litigation
837 F.3d 175 (2d Cir. 2016) ............cccccccceees passim
W.S. Kirkpatrick & Co. v.
Environmental Tectonics Corp.
re i Ce ieerderpariarnccttncenptnncssintenscimnnviies 33
ala a eeaiidiaall 37
ee eID ccecidistecnccintnistaccebiieienbevenecien 14
es Ge re BO BI crcccwseetsccsscnccsccnscnictessccsscesises 6
a Tay Ee: He ee ercncieperesiscnnstsscntoinnsennisiatvaoeti 28
SMRH 486598733.2
ee a ae os sc ccacenaucuneresannunachocutsaipeneantl 8,9
Fed. R. Civ. P. 44.1, Notes of Advisory
Committee on Rules—1966.................cccceceeseee 9, 16
Fed. R. Civ. P. 44.1, Notes of Advisory
Committee on Rules—1966....................cccceeeees 5, 17
Fed. R. Civ. P. 44.1, Notes of Advisory
Committee on Rules—1966.................cccccceceeeees 5,8
Federal Rule of Civil Procedure 44.1’s......... 2, 6, 8, 12
Foreign Sovereign Immunities Act .......................04. 33
Uniform Foreign-Country Money
Judgments Recognition Act § 4,
available at
http://www.uniformlaws.org/shared/
docs/foreign%20country%20money%
20judgments%20recognition/ufcmjra
NE INA chic csunscohsensdclatuehins ddasaueiinnnstnnsguiadinscbindecanines 14
SMRH:485598733.2
-viii-
Provisi
Memorandum of Understanding
Between the Chief Justice of New
South Wales and the Chief Judge of
the State of New York on References
of Questions of Law (Feb. 2, 2017),
available at
http://www.supremecourt.justice.ns
w.gov.au/Pages/sco2_practiceproced
ure/sco2_internationaljudicialcooper
ation/SCO2_agreement_newyork.asp
oc scssngeaen eiacctiogndecctaninsodecumighedeeimianiatiinnnaicheniunetenedion 37
RUIN Till bacuaputissinsiccpisinniintinntbeabieesemnedceneinmiacatenagenamminnianet 9
SNNIIEY STIC Tl winsicsdnossiatedabelioiaciimniaseinenmertomseneinionsh passim
SINIIIE IID \ i ickasisicheresdactininianesetiesiegpdeetnnidieabeienmssentamanbiidid 16
Treatment of Foreign Law: Dynamics
Towards Convergence ?—General
Report, in TREATMENT OF FOREIGN
LAW: DYNAMICS TOWARDS
IIIT ik ccicacencssanedcneesnnsencnesbrsssesnseniniwens 20
Other Authoriti
Carmen Azcarraga Monzonis, Spain:
The Application of Foreign Laws in
Spain—Critical Analysis of the Lega!
Novelties of 2015, in TREATMENT OF
FOREIGN LAW: DYNAMICS TOWARDS
CONVERGENCE? 329, 333 (Yuko
OO oS - ccumusisdonndanesuinin 22
SMRH:4855987 33.2
-1x-
STEPHEN BREYER, THE COURT AND THE
WORLD: AMERICAN LAW AND THE
NEw GLOBAL REALITIES 92 (2015)...........
Brief Amicus Curiae of the Embassy of
Honduras and the Asociacion de
Pescadores del Caribe in Support of
Defendant-Appellant David Henson
McNab, 2002 WL 32595268, at *13........
Brief for the United States as Amicus
Curiae on Petition for a Writ of
EN SESSA, Serene ee
Brief for the United States as Amicus
Curiae on Petition for a Writ of
oo) «=| Ee ae
Brief for the United States as Amicus
Curiae on Petition for a Writ of
en ON en a cnseapuneseie
Brief for the United States as Amicus
Curiae on Petition for a Writ of
ne ns ssndineinnia
Brief in Opposition at 26, Animal
Science Products, Inc. v. Hebei
Welcome Pharmaceutical Co., No.
16-1220 (U.S. June 5, 2017) ..........c0cce
Brief in Opposition at 26, Animal
Science Products, Inc. v. Hebei
Welcome Pharmaceutical Co., No.
16-1220 (U.S. June 5, 2017) .........:cccceees
SMRH ‘4855987 33.2
petenioniete 24
-——-
Hannah L. Buxbaum, Foreign
Governments as Plaintiffs in U_S.
Courts and the Case Against
“Judicial Imperialism”, 73 WASH. &
LEE L. REV. 653, 678 (2016).................0secsccceeeseees 30
Chart of Signatures and Ratifications of
Treaty,
https://www.coe.int/en/web/conventio
ns/full-list/-
/conventions/treaty/062/signatures?p
IEEE task ditsicetidacicindnetnanemboonganssennsincanis 23
Zachary D. Clopton, Judging Foreign
States, 94 WASH. U. L. REV. 1, 15-17
Communication to Courts, 1978 Digest
of United States Practice in
International Law ch. 4, § 1 at 560-
Sabine Corneloup, France—The
Evolving Balance Between the
Judge and the Parties in France, in
TREATMENT OF FOREIGN LAW:
DYNAMICS TOWARDS CONVERGENCE?
157, 171 (Yuko Nishitani ed., 2017).................... 21
Council of Europe, Explanatory Report
to the European Convention on
Information on Foreign Law, June 7,
1968, at 6, available at
https://rm.coe.int/16800c92f8 ...............ceeceeeeeeee eee 24
SMRH :485598733.2
-xi-
European Convention on Information
on Foreign Law, June 7, 1968, 720
EG Sr aciistsnistcteasneeanapidimmntoniieinicntecnsns
General Information of the Treaty,
https://www.oas.org/juridico/english/
a iktchicacceticcsncecmisentewisitndiniesaies
Inter-American Convention on Proof of
and Information on Foreign Law,
May 8, 1979, 1439 U.N.T.S. 111...............
Maarit Janteré-Jareborg, Foreign Law
in National Courts: A Comparative
Perspective, 304 RECUEIL DES COURS
ERAN eee eee
Marek Martyniszyn, Foreign States’
Amicus Curiae Participation in U.S.
Antitrust Cases, 61 ANTITRUST
BE. GR, GI re wncicaesinstccoccececoccesees
MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY (11th ed. 2003).................0000.
Arthur R. Miller, Federa/ Rule 44.1 and
the “Fact” Approach to Determining
Foreign Law: Death Knell for a Die-
Hard Doctrine, 65 MICH. L. REV.
OU I seniiiccecintsincniaiedhehedthisiasonsction
SMRH:485598733.2
-xii-
Shunichiro Nakano, Japan: Proof of and
Information About Foreign Law in
Japan, in TREATMENT OF FOREIGN
LAW: DYNAMICS TOWARDS
CONVERGENCE? 529, 533 (Yuko
os adueseuresioeenes 23
New York Civil Practice Act § 391 ....................:c0ceeee 8
Ilaria Pretelli & Shaheeza Lalani,
Switzerland: The Principle Iura
Aliena Novit Curia and the Role of
Foreign Law Advisory Services in
Swiss Judicial Practice, in
TREATMENT OF FOREIGN LAW:
DYNAMICS TOWARDS CONVERGENCE?
375, 390 (Yuko Nishitani ed., 2017)............000000.. 22
Oliver Remien, Germany: Proof of and
Information About Foreign Law—
Duty to Investigate, Expert
Opinions and a Proposal for Europe,
in TREATMENT OF FOREIGN LAW:
DYNAMICS TOWARDS CONVERGENCE?
183, 203 (Yuko Nishitani ed., 2017)................0. 21
SMRH°485598733.2
“xili-
Response of the United States of
America to Feasibility Study on the
Treatment of Foreign Law
Questionnaire, Prel. Doc. No 25
(Oct. 2007), Response to Question
29(c) (answering “YES” to the
following question: “Should the
information received be non-binding
(as opposed to binding)?”), available
at
https://assets.hcch.net/upload/wop/g
CU, IE crcctediaeisettcctrcnanenvterincnntuiitivadintl 25
Restatement (Second) of Conflict of
Laws § 90 (Am. Law Inst. 1971).............ccccc000e00e 31
See Code de procédure civile, art. 246,
https://www. legifrance.gouv.fr/affich
CodeArticle.do;jsessionid=8B6C6B1
B7107BAED721 © 52D0500A511.tp
lgfr27s_1?idArticle=LEGIARTIOOO00O
06410377&cidTexte=LEGITEXTO000
0060707 16&dateTexte=200505 14,
translation at
https://www.legifrance.gouv.fr/conte
nt/download/1962/13735/.../Code_39.
SMRH:485598733.2
See Ley 29/2015, de 30 de julio, de
cooperacion juridica internacional en
materia civil, BOE-A-2015-8564, art.
33.4,
http://www.boe.es/buscar/doc.php?id
=BOE-A-2015-8564, translation in
Carmen Azcarraga Monzonis, Spain:
The Application of Foreign Laws in
Spain—Critical Analysis of the Legal
Novelties of 2015, in TREATMENT OF
FOREIGN LAW: DYNAMICS TOWARDS
CONVERGENCE? 329, 333 (Yuko
Nishitani ed., 2017) .................. anecisertentiesi
John G. Sprankling & George R. Lanyi,
Pleading and Proof of Foreign Law
in American Courts, 19 STAN. J.
Bee hy Be Ce crccccccscerecccvsccsescecesces
JOSEPH STORY, COMMENTARIES ON THE
CONFLICT OF LAWS § 38 (2d ed. 1841)
I uipeesmnees
WEBSTER’S COLLEGIATE DICTIONARY
a
William 8S. Dodge, /nternational Comity
in American Law, 115 COLUM. L.
Ee
WRIGHT & MILLER, FEDERAL PRACTICE
AND PROCEDURE, 9A FED. PRAC. &
PROC. CIV. § 2444 (3d ed.).............0cc00000 5, 8, 12, 17
SMRH ‘4855987 33.2
-xVv"
Yuko Nishitani, 7reatment of Foreign
Law: Dynamics Towards
Convergence ?—General Report, in
TREATMENT OF FOREIGN LAW:
DYNAMICS TOWARDS CONVERGENCE?
56 (Yuko Nishitani ed., 2017)..............:c0cc0cce00
Zivilprozessordnung [ZPO] |Code of
Civil Procedure], § 293,
https://www.ilo.org/dyn/natlex/docs/
ELECTRONIC/89715/103136/F-
842321361/ZPO.pdf, translation at
https://www.gesetze-im-
internet.de/englisch_zpo/englisch_zp
SIS eeticcceisssiatnsidienaleitieichdeaapdhaninadbiintiatins
Schweizerische Zivilprozessordnung
[ZPO], [Civil Procedure Code] Dec.
19, 2008, SR 272, art. 157,
translation at
https://www.admin.ch/opc/en/classifi
ed-compilation/20061121/index.htm!]
SMRH ‘4855987 33.2
INTEREST OF AMICT CURIAE
Amici curiae are professors of conflict of laws
and civil procedure with expertise in the rules
governing the determination of foreign law. They
have a strong interest in the proper application of
these rules by U.S. courts. The amici curiae are
professors of conflict of laws and civil procedure:
George A. Bermann, Walter Gellhorn Professor of
Law and Jean Monnet Professor of EU Law at
Columbia Law School; Pamela K. Bookman,
Assistant Professor of Law at Temple University
Beasley School of Law; Andrew Bradt, Assistant
Professor of Law at the University of California,
Berkeley School of Law; Stephen B. Burbank, David
Berger Professor for the Administration of Justice at
the University of Pennsylvania Law School; Kevin
M. Clermont, Ziff Professor of Law at Cornell Law
School; Zachary D. Clopton, Assistant Professor of
Law at Cornell Law School; Laura E. Little, Charles
Klein Professor of Law and Government at Temple
University’s Beasley School of Law; Ralf Michaels,
Arthur Larson Professor of Law at Duke University
School of Law; Kermit Roosevelt, a Professor of Law
at the University of Pennsylvania Law School:
Louise Ellen Teitz, Distinguished Service Professor
of Law at Roger Williams University School of Law,
Bristol, Rhode Island: Christopher A. Whytock,
Professor of Law at the University of California,
Irvine, School of Law. A detailed list of amici and
their qualifications is provided in the appendix.
' All parties have consented to the filing of this brief. No
counsel for any party has authored this brief in whole or in
SMRH:485598733.2
SUMMARY OF ARGUMENT
The Second Circuit held that “when a foreign
government, acting through counsel or otherwise,
directly participates in U.S. court proceedings by
providing a sworn evidentiary proffer regarding the
construction and effect of its laws and regulations,
which is reasonable under the circumstances
presented, a U.S. court is bound to defer to those
statements.” Jn re Vitamin C Antitrust Litigation,
837 F.3d 175, 189 (2d Cir. 2016). This “bound-to-
defer” rule is incorrect and unwise.
First, the “bound-to-defer” rule is inconsistent
with basic American conflict-of-laws principles
governing the determination of foreign law. It is
inconsistent with Federal Rule of Civil Procedure
44.1’s broad authorization for U.S. courts to
“consider any relevant material or source” when
determining foreign law. It is inconsistent with the
principle that determinations of foreign law should
be accurate. And it is inconsistent with the principle
of judicial independence in the determination of
foreign law.
Second, the ‘“bound-to-defer” rule _ is
inconsistent with foreign and international practice.
In most other countries, information about foreign
law is not binding on courts. Moreover, the world’s
two main treaties on the interpretation of foreign
law expressly provide that information supplied by
part, and no person other than amici or their counsel has made
any monetary contribution intended to fund the preparation or
submission of this brief.
SMRH:4855987 33.2
foreign governments in accordance with those
treaties is not binding on courts. Simply put, foreign
governments do not expect each other’s courts to be
“bound to defer” to each other’s interpretations of
foreign law, much less the interpretation of one
executive agency of a foreign government.
Third, there are important reasons why
deference principles should be kept separate from
the principles governing the determination of foreign
law. The Second Circuit’s “bound-to-defer” rule
would inappropriately delegate to foreign
governments power to influence the application of
domestic law—and hence the implementation of
domestic policy—in a wide range of cases in which
the proper application of U.S. law depends on the
determination of foreign law. In _ addition,
international comity does not require U.S. courts to
defer to foreign governments in the determination of
foreign law. International comity is a traditional
rationale for choice-of-law rules that require the
application of foreign law as a rule of decision under
specified circumstances. But in this case, foreign law
is at issue because the application of U.S. law
depends on the interpretation of foreign law, not
because choice-of-law rules require the application of
foreign law. Therefore, this case does not implicate
the comity rationale for choice-of-law rules.
Moreover, the concerns that animate comity
doctrines are not the same as those that animate the
rules governing the determination of foreign law.
The former are concerned with the respect owed
between governments, whereas the latter are
concerned with ensuring that U.S. courts
independently and accurately determine the content
SMRH :485598733.2
of foreign law. In fact, the “bound-to-defer” rule
raises issues that are likely to pose significant
comity concerns that the ordinary Rule 44.1
approach avoids. U.S. courts can still address comity
concerns—separately from their independent
determination of foreign law.
To be sure, U.S. courts should give respectful
consideration to a foreign government’s statements
about its law. But as a matter of law, a foreign
government’s statements cannot be binding on U.S.
courts. Instead, U.S. courts should accurately and
independently determine the meaning of foreign law
taking into account not only the foreign
government's own statements, but also other
relevant information about that law. This
independent approach is_ especially important
when—as in this U.S. antitrust case and many other
cases—the proper application of American law
depends on a determination of foreign law.
I. THE SECOND CIRCUIT'S “BOUND-TO-
DEFER” RULE IS INCONSISTENT WITH
BASIC AMERICAN CONFLICT-OF-LAWS
PRINCIPLES.
Federal Rule of Civil Procedure 44.1
authorizes U.S. courts to “consider any relevant
material or source” when determining foreign law.
The Second Circuit’s “bound-to-defer” rule is
inconsistent with this broad authorization. The
Second Circuit’s rule also is inconsistent with the
basic American conflict-of-laws principles that U.S.
courts should determine foreign law accurately and
that they should do so independently.
SMRH:485598733.2
A. THE SECOND CIRCUITS RULE IS
INCONSISTENT WITH FEDERAL
RULE OF CIVIL PROCEDURE 44.1.
Rule 44.1 authorizes courts to “consider any
relevant material or source” when determining
foreign law. Fed. R. Civ. P. 44.1. Relevant material
may include pri» ary sources (such as constitutions,
statutes, regulations, and court decisions), secondary
materials (such as treatises and other books, legal
periodicals, and other legal commentary on foreign
law), and expert advice (such as expert opinions of
lawyers, judges, and scholars). See WRIGHT &
MILLER, FEDERAL PRACTICE AND PROCEDURE, 9A FED.
PRAC. & Proc. Civ. § 2444 (3d ed.).
The text of Rule 44.1 places no limitations on
this broad authorization. Moreover, the official
advisory notes to Rule 44.1 do not indicate that any
exception was intended—even when a foreign
government is one of the sources of information
about foreign law. To the contrary, as the Rules
Advisory Committee explained, Rule 44.1 provides
that “the court is not limited by material presented
by the parties; it may engage in its own research and
consider any relevant material thus found.” Fed. R.
Civ. P. 44.1, Notes of Advisory Committee on
Rules—1966. By authorizing U.S. courts to consider
any relevant material or source, Rule 44.1 helps
ensure that U.S. courts have the flexibility to obtain
the information they need to determine foreign law
accurately. See infra Part I.B; Fed. R. Civ. P. 44.1,
Notes of Advisory Committee on Rules—1966 (noting
that “the rule provides flexible procedures for
presenting and utilizing material on issues of foreign
SMRH:4855987 33.2
law by which a sound result can be achieved with
fairness to the parties”).
The Second Circuit’s “bound-to-defer” rule
would limit the authority that Rule 44.1 grants to
the courts. By making foreign government
statements binding, the Second Circuit’s rule would
not allow U.S. courts to “consider any relevant
material or source” when determining foreign law.
Instead, whenever a foreign government makes
statements about its law that are “reasonable under
the circumstances,” U.S. courts would be required to
determine foreign law according to those
statements—regardless of the reliability of those
statements, and regardless of other reliable and
persuasive information that might compel a different
determination. For example, the “bound-to-defer”
rule would prevent a U.S. court from considering
foreign legislative records or foreign judicial
decisions that might undermine or provide
perspective for the interpretation proffered by a
foreign executive agency. Thus, the Second Circuit's
rule would effectively amend Rule 44.1 by creating
an exception to Rule 44.1’s broad authorization in
cases in which foreign governments provide
information about foreign law. Any amendment to
Rule 44.1 should be made pursuant to the federal
rulemaking process. See 28 U.S.C. §§ 2072 et seq.
The Second Circuit attempts to avoid this
conclusion by reasoning that “Rule 44.1 explicitly
focuses on what a court may consider when
determining foreign law, but is silent as to how a
court should analyze the relevant material or
sources. Thus, courts must still evaluate the relevant
SMRH ‘4855987 33.2
source material within the context of each case.” Jn
re Vitamin C, 837 F.3d at 187. But this reasoning
cannot be reconciled with the “bound-to-defer” rule.
If a foreign government’s statements were binding
on a U.S. court, consideration of other material
would be meaningless, for it would not be allowed to
influence the court’s determination, even if that
material is highly accurate and reliable. Rule 44.1,
after all, calls for courts to “consider” relevant
sources. See MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY (11th ed. 2003) (defining consider as “to
think about carefully” as in “to think of esp. with
regard to taking some action” or “to take into
account”); WEBSTER’S COLLEGIATE DICTIONARY (5th
ed. 1948) (defining consider as “to think on with
care”). At most, the Second Circuit’s rule would allow
U.S. courts to consider other material for the narrow
purpose of determining whether a foreign
government’s interpretation is “reasonable under the
circumstances presented”—but even with this
qualification, the “bound-to-defer” rule would not
allow courts to “consider any relevant material or
source” for the fundamental purpose of determining
foreign law accurately, as Rule 44.1 authorizes
(emphasis added).
To support its “bound-to-defer” rule, the
Second Circuit relies on United States v. Pink, 315
U.S. 203 (1942). This reliance is misplaced. Most
importantly, for the reasons just given, the Second
Circuit’s reading of Pink as stating a “bound-to-
defer” rule is inconsistent with Federal Rule of Civil
Procedure 44.1, which entered into effect in 1966,
more than 20 years after Pink was decided.
SMRH:4855987 33.2
The Second Circuit discounts the impact of
Rule 44.1. See In re Vitamin C, 837 F.3d at 188
(“Rule 44.1 does not alter the legal standards by
which courts analyze foreign law .. . .”). But by doing
so it ignores the important consequences of Rule
44.1’s adoption. As Wright and Miller explain: “The
procedure for proving foreign law was changed
substantially by . . . Rule 44.1. . . . Thus, the trial
court’s freedom of inquiry no longer is encumbered
by any restraint on its research or by the rules of
admissibility .. . . Since the rule dissipates former
inhibitions on judicial inquiry, the district judge may
consider any material the parties wish to present.”
WRIGHT & MILLER, FEDERAL PRACTICE AND
PROCEDURE, 9A FED. PRAC. & PROC. CIV. § 2444 (3d
ed.). Rule 44.1 also abandoned the treatment of
foreign law issues as issues of fact, and established
that a determination of foreign law instead “must be
treated as a ruling on a question of law.” Fed. R. Civ.
P. 44.1, Notes of Advisory Committee on Rules—
1966 (“[T]he court’s determination of an issue of
foreign law is to be treated as a ruling on a question
of ‘law,’ not ‘fact’... .”).
Moreover, Pink was an appeal from a New
York state court, and both the state court and this
Court applied New York state law to determine the
content of foreign law in that case. See 315 U.S. at
217-22 (discussing New York Civil Practice Act § 391
and its requirement to treat certain “written
authorities” as “presumptive evidence” of foreign
law); see also Fed. R. Civ. P. 43(a) (calling for district
courts, at the time of Pink, to apply state evidence
law in some circumstances). One purpose of Federal
Rule 44.1—and of the Federal Rules’ more
SMRH ‘4855987 33.2
generally—was to provide a uniform federal
approach to questions of procedure, including the
determination of foreign law. The first sentence of
the Advisory Committee Notes accompanying the
first version of Rule 44.1 stated: “Rule 44.1 is added
by amendment to furnish Federal courts with a
uniform and effective procedure for raising and
determining an issue concerning the law of a foreign
country.” Fed. R. Civ. P. 44.1, Notes of Advisory
Committee on Rules—1966 (emphasis added). The
Notes further explained that the authorization to
“consider any relevant material or source” was
explicitly designed to end the reliance on variable
and often undesirable state laws. See id? For
reasons we explain shortly, we see no conflict
between Pink and Rule 44.1. But even if there were
a conflict, Rule 44.1 would control today.
Furthermore, it is far from clear that Pink
stands for the general proposition that U.S. courts
are “bound to defer” to foreign government
statements. Although this Court in Pink found a
declaration of the Russian Commissariat for Justice
2 Fed. R. Civ. P. 44.1, Notes of Advisory Committee on
Rules—1966 (“Heretofore the district courts, applying Rule
43(a), have looked in certain cases to State law to find the rules
of evidence by which the content of foreign-country law is to be
established. The State laws vary: some embody procedures
which are inefficient, time consuming and expensive. In all
events the ordinary rules of evidence are often inapposite to the
problem of determining foreign law and have in the past
prevented examination of material which could have provided a
proper basis for the determination. The new rule permits
consideration by the court of any relevant material, including
testimony, without regard to its admissibility under Rule 43.”)
(citation omitted).
SMRH :485598733.2
-10-
interpreting Russian law to be conclusive in the
particular circumstances presented, this Court
announced no rule in Pink requiring that foreign
government statements be binding on U.S. courts in
general. See Brief for the United States as Amicus
Curiae on Petition for a Writ of Certiorari at 11
(‘This Court’s holding lin Pink) that the
Commissariat’s declaration was ‘conclusive’ under
those circumstances does not suggest that every
submission by a foreign government is entitled to the
same weight.”).
Even if Pink is read as stating a general rule
of deference—which it does not—it may be read as a
conditional deference rule—not a categorical rule as
suggested by the Second Circuit. See Pink, 315 U.S.
at 220 (explaining that, prior to treating the
declaration as conclusive, this Court determined that
“the evidence supported [the] finding|] that the
Commissariat for Justice has power to interpret
existing Russian law”); id. at 218 (explaining that,
although this Court “[did] not stop to review all the
evidence in the voluminous record” on the question
of Russian law, it accepted the stated interpretation
only after observing “that the expert testimony
tendered by the United States gave great credence to
its position”). Thus, Pink arguably stands only for
the proposition that courts may treat foreign
government statements about foreign law as
conclusive if evidence shows that the foreign
government agency making the statement is
authorized to interpret foreign law and there are
other persuasive sources or materials that are
consistent with that interpretation.
SMRH:485598733.2
-11-
B. THE SECOND CIRCUIT'S RULE IS
INCONSISTENT WITH THE
PRINCIPLE THAT U.S. COURTS
SHOULD ACCURATELY
DETERMINE FOREIGN LAW.
A basic principle governing the determination
of foreign law under Rule 44.1 is that courts should
determine foreign law accurately. See Rationis
Enterprises Inc. v. Hyundai Mipo Dockyard Co., 426
F.3d 580, 586 (2d Cir. 2005) (“Ultimately, the
responsibility for correctly identifying and applying
foreign law rests with the court.”); see also 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, 728 (1967)
(“Rule 44.1 expresses a philosophy that federal
courts should ascertain foreign law accurately
whenever possible.”). The accurate determination of
foreign law requires that it be considered in light of
how it is authoritatively interpreted and applied in
the foreign country. See de Fontbrune v. Wofsy, 838
F.3d 992, 994, 1003 (9th Cir. 2016) (noting that the
issue of French law governing remedy was “not a
simple matter of translation” but “requires a broader
look at French law to understand the nature of the. .
. remedy” and how it functions in France, including
an inquiry into how the remedy is actually used in
the French legal system); Bodum USA, Inc. v. La
Cafetiére, Inc., 621 F.3d 624, 639 (7th Cir. 2010)
(Wood, J., concurring) (arguing that court’s
understanding of foreign law should not be merely
“theoretical” but instead should take into account
“day-to-day realities of the practice of law” in the
foreign state). The approach of the Second Circuit
SMRH:485598733.2
-12-
effectively reverts to treating foreign law as a
question of fact in which a foreign government’s
statement is accepted as “truth,” ignoring Rule 44.1’s
directive to weigh the available information. See
Madanes v. Madanes, 186 F.R.D. 279, 283 (S.D.N.Y.
1999) (“Since foreign law is an issue of law rather
than of fact, it is not the credibility of the experts
that is at stake, but rather the persuasiveness of
their opinions.”).
The principle of accuracy implies that a court
must consider information about foreign law based
on how reliable and persuasive the information is.
See Bodum, 621 F.3d at 628 (majority opinion)
(“Judges should use the best of the available
sources.”); WRIGHT & MILLER, FEDERAL PRACTICE
AND PROCEDURE, 9A FED. PRAC. & PROC. Civ. § 2444
(3d ed.) (“[O]ne of the policies inherent in Rule 44.1
is that whenever possible issues of foreign law
should be resolved on their merits and on the basis
of a full presentation and evaluation of the available
materials. To effectuate this policy, the court is
obliged to take an active role in the process of
ascertaining foreign law.”).
Reliable and persuasive information may, of
course, come from a foreign government. But being a
foreign government agency or official is not by itself
a sufficient indicator of _ reliability and
persuasiveness, because the _ reliability and
persuasiveness of foreign government statements
depend on many other factors. These include: (1)
whether the specific agent of the foreign government
making the statement about foreign law is
authorized to officially interpret that law; (2)
SMRH:485598733.2
-13-
whether the statement is consistent with the same
agent’s earlier statements; (3) whether the
statement is consistent with those made by other
agents of the foreign government; (4) whether the
statement is consistent with how the foreign
government’s courts have interpreted that law; (5)
whether the statement is consistent with
information about that foreign law from other
reliable sources; (6) how well-supported the
statement is by primary sources of foreign law: (7)
how well-reasoned the statement is; (8) the context
and purpose of the statement; and (9) whether the
statement will be binding in any future proceedings
in the foreign state or in a U.S. court. See Brief for
the United States as Amicus Curiae on Petition for a
Writ of Certiorari at 8 (“The precise weight to be
given to a foreign government’s statement turns on
factors including the _ statement’s clarity,
thoroughness, and support; its context and purpose;
the authority of the entity making it; its consistency
with past statements; and any other corroborating or
contradictory evidence.”).
Foreign court decisions are generally likely to
be more reliable and persuasive sources of
information about foreign law than information
provided to U.S. courts by executive agencies of
foreign governments in the context of pending U.S.
litigation—but U.S. courts are not “bound to defer”
to foreign court decisions, either.®
§ Although the conflict-of-laws rules governing foreign
judgments ordinarily provide that U.S. courts should generally
recognize and enforce those judgments, there are numerous
SMRH 4855987 33.2
-14-
The pitfalls of relying on a statement about
foreign law solely because it is provided by a foreign
government agency are illustrated in United States
v. McNab, 331 F.3d 1228 (11th Cir. 2003). In that
case, defendant was convicted of violating the Lacey
Act, which is a U.S. statute that prohibits the
importation of “fish or wildlife [that has been] taken,
possessed, transported, or sold in violation of . . . any
foreign law.” Jd. at 1232 (quoting 16 U.S.C. §
3372(a)(2)(A)). Defendant’s conviction was based on
a violation of Honduran law. /d. at 1232-34. The
district court relied on statements of multiple
Honduran officials, including a legal officer of a
Honduran government ministry made during the
investigation and trial, that the relevant law was
valid. /d at 1234-35. But after defendant's
conviction, the Embassy of Honduras filed an amicus
brief in support of defendants, arguing that the law
“was of no force and effect, because it was not
adopted in accordance with Honduran law and thus
it could not legally provide the basis for any violation
of Honduran law.” Brief Amicus Curiae of the
Embassy of Honduras and the Asociacion de
Pescadores del Caribe in Support of Defendant-
Appellant David Henson McNab, 2002 WL
32595268, at *13. The Court of Appeals for the
Eleventh Circuit held that it would not defer to the
new Honduran position. McNab, 331 F.3d at 1242.
The Eleventh Circuit insisted that “[wle must have
grounds for refusing recognition and enforcement. See, e.z.,
Uniform Foreign-Country Money Judgments Recognition Act §
4, available at
http://www.uniformlaws.org/shared/docs/foreign%20country%2
Omoney%20judgments% 20recognition/ufemjra_final_05.pdf.
SMRH°485598733.2
-15-
consistency and reliability from foreign governments
with respect to the validity of their laws.” /d.
A fundamental flaw of the Second Circuit's
“bound-to-defer” rule is that it would prevent courts
from independently weighing information about
foreign law in accordance with these and other
available indicia of reliability and persuasiveness.
The Second Circuit’s rule would require courts to
determine foreign law in accordance with a foreign
government's statements even if those statements
have a lower degree of reliability or persuasiveness
than other information before the court. Indicia of
reliability and persuasiveness would only matter if
they so clearly tilted against a foreign government’s
statements as to render them not “reasonable under
the circumstances.” Jn re Vitamin C, 837 F.3d at
189. The principle behind the determination of
foreign law, however, is to arrive at an accurate
determination, not merely a reasonable one.
This flaw is especially serious at the appellate
level. As the Second Circuit correctly observed, “[(t/he
determination of foreign law is ‘a question of law,
which is subject to de novo review.” Jd. at 183. A
primary purpose of de novo review is to ensure that
an appellate court can correct a district court's
inaccurate determination of the content or meaning
of foreign law. See McKesson Corp. v. Islamic
Republic of Iran, 753 F.3d 239, 242 (D.C. Cir. 2014)
(undertaking “de novo review of the district court’s
irterpretation of foreign law”) (emphasis added);
Iracheta v. Holder, 730 F.3d 419, 423 (5th Cir. 2013)
(“Just like any question of law, ‘[t)]he content of
foreign law is a question of law and is subject to de
SMRH:485598733.2
-16-
novo review.) (quoting Access Telecom, Inc. v. MCI
Telecomms. Corp., 197 F.3d 694, 713 (5th Cir.1999))
(emphasis added); see also Fed. R. Civ. P. 44.1, Notes
of Advisory Committee on Rules—1966 (“[T]he
court’s determination of an issue of foreign law is to
be treated as a ruling on a question of ‘law,’ not ‘fact,’
so that appellate review will not be narrowly
confined by the ‘clearly erroneous’ standard of Rule
52(a).”); John G. Sprankling & George R. Lanyi,
Pleading and Proof of Foreign Law in American
Courts, 19 STAN. J. INTL L. 3, 6 n.12 (1983)
(“[A]ssurance of the correctness of the content and
application of foreign law requires the supervision of
appellate review.”). Yet the Second Circuit’s review
was based more on deference than accuracy. As the
Second Circuit itself states: “[I)/f the Chinese
Government had not appeared in this litigation, the
district court’s careful and thorough treatment of the
evidence before it in analyzing what Chinese law
required . . . would have been entirely appropriate.”
In re Vitamin C, 837 F.3d at 191 n.10.
C. |THE SECOND CIRCUIT'S RULE
VIOLATES THE PRINCIPLE OF
JUDICIAL INDEPENDENCE IN THE
DETERMINATION OF FOREIGN
LAW.
The bedrock principle of judicial independence
applies to all determinations of law by U.S. courts,
including determinations of foreign law. See Garcia
v. Pinelo, 808 F.3d 1158, 1163 (7th Cir. 2015) (“[I)n
determining these questions of [foreign] law, both
trial and appellate courts are urged to research and
analyze foreign law independently.’ This is because
SMRH :485598733.2
-17-
‘one of the policies inherent in Rule 44.1 is that
whenever possible issues of foreign law should be
resolved on their merits and on the basis of a full
evaluation of the available materials.”) (citations
omitted); de Fontbrune v. Wofsy, 838 F.3d 992, 997
(9th Cir. 2016) (stressing “the district court’s
independent obligation to adequately ascertain
relevant foreign law”); PNC Financial Services
Group, Inc. v. C.LR., 503 F.3d 119, 126 (D.C. Cir.
2007) (“[Rule 44.1] directls] courts to independently
determine issues of foreign law.”).
The principle of independence means that a
U.S. court cannot be required to defer to information
given to it by others, but may instead engage in its
own independent research on foreign law. See
in v. Radcliffe, 292 F.3d 1209, 1216 (9th Cir.
2002) (“[Flederal judges may reject even the
uncontradicted conclusions of an expert witness and
reach their own decisions on the basis of
independent examination of foreign legal
authorities.”) (quoting Access Telecom, Inc. v. MCI
Telecomms. Corp., 197 F.3d 694, 713 (5th Cir.
1999)); Fed. R. Civ. P. 44.1, Notes of Advisory
Committee on Rules—1966 (noting that under Rule
44.1 the court “may engage in its own research and
consider any relevant material thus found”); see a/so
Products and Ventures International v. Axus
Stationary (Shanghai) Ltd., 2017 WL 201703, at *3
(N.D. Cal. Jan. 18, 2017) (“LA] district court has an
‘independent obligation’ to ascertain the relevant
foreign law. . . . Thus, courts must . . . determine
whether submissions from parties are sufficiently
reliable.”); WRIGHT & MILLER, FEDERAL PRACTICE
AND PROCEDURE, 9A FED. PRAC. & Proc. Civ. § 2444
SMRH :485598733.2
-18-
(3d ed.) (“[Flederal courts have not felt bound by the
testimony of foreign law experts and upon occasion
have placed little or no credence in their opinions
when not supported adequately or when the views
were offered in too partisan a fashion.”); cf Jnte/
Corp. v. Advanced Micro Devices, Inc. , 542 U.S. 241
(2004) (characterizing European Commission as a
“tribunal” despite an amicus brief from the
European Commission arguing that under European
Union law the European Commission did not
function as a tribunal).
The Second Circuit's “bound-to-defer” rule
violates the principle of judicial independence in two
ways. First, it would impose on U.S. courts a
particular interpretation of foreign law—that of an
appearing foreign government—rather than allowing
U.S. courts to determine foreign law independently
based on indicia of reliability and persuasiveness
such as those discussed above. Second, the “bound-
to-defer” rule would render meaningless the
authority Rule 44.1 gives courts to do independent
research on foreign law. The Second Circuit’s
“bound-to-defer” rule thus would be just the sort of
“judge-made doctrine for the abdication of the
judicial duty” to interpret law that has raised
concerns in other contexts. See Gutierrez-Brizuela v.
Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016)
(Gorsuch, J.). In this case, the bound-to-defer rule
would require adopting the Chinese ministry’s
statement even though the trial court found that
“the plain language of the documentary evidence
submitted by plaintiffs directly contradicts the
Ministry's position.” /n re Vitamin C Antitrust
Litigation, 584 F. Supp. 2d 546, 557 (E.D.N.Y. 2008).
SMRH :4855987 33.2
-19-
Il. THE SECOND CIRCUIT'S RULE IS
INCONSISTENT WITH FOREIGN AND
INTERNATIONAL PRACTICE.
The Second Circuit’s bound-to-defer standard
is inconsistent not only with basic American conflict-
of-laws principles, but also with foreign and
international practice. Foreign courts are not
subjected to the “bound-to-defer” rule that the
Second Circuit would impose on U.S. courts, and
treaties on the determination of fer’'«n law show
that foreign governments do not ex ~ that sort of
deference from each other. Indeed, the fundamental
principles of accuracy and independence in the
determination of foreign law that underpin Rule 44.1
are widely recognized in foreign and international
practice.
A. THE SECOND CIRCUITS RULE IS
INCONSISTENT WITH FOREIGN
PRACTICE.
The Second Circuit’s bound-to-defer rule
would impose a more rigid rule of deference on U.S.
courts than foreign countries impose on their own
courts. As the United States has stated in this
litigation, the Department of Justice “is not aware of
any foreign-court decision holding that the
Department’s representations are entitled to such
conclusive weight.” Brief for the United States as
Amicus Curiae on Petition for a Writ of Certiorari at
11-12.
The United States’ assessment is consistent
with a recent study of how 34 nations in Europe,
SMRH:485598733.2
-20-
North and South /.merica, the Asia-Pacific Area, and
Africa treat foreign law, which found that the large
majority of these nations do not require their courts
to be bound by information about foreign law. See
Yuko Nishitani, Treatment of Foreign Law:
Dynamics Towards Convergence?—General Report,
in TREATMENT OF FOREIGN LAW: DYNAMICS TOWARDS
CONVERGENCE? 26 (Yuko Nishitani ed., 2017)
(“Information obtained with respect to foreign law is
not binding in most jurisdictions. .. . The judge
needs to examine the quality of the obtained
information in court proceedings, possibly by using
additional materials. In light of this, it is sensible
policy to exclude the binding force of any information
provided in relation to foreign law.”); id. at 30 (“The
effects of the information on foreign law provided by
expert witnesses, documents submitted by the
parties or any other means is not binding on the
judge.”); see also Maarit Jantera-Jareborg, Foreign
Law in National Courts: A Comparative Perspective,
304 RECUEIL DES COURS 281, 287 (2003) (surveying
Germany, France, England, Sweden, Norway,
Finland, Denmark, Italy, Austria, Switzerland, and
a variety of Latin American countries, and
concluding that in those jurisdictions “the court is
not bound by the information or ‘evidence’ [regarding
foreign law] delivered by the parties, but remains
free to assess its reliability and sufficiency”). For
example:
> In Germany, “[t]he provided legal
information never is binding on the
court. Rather, the court retains its
res} onsibility under [the German Code
of Civil Procedure] and has to evaluate
SMRH 485598733.2
-21-
the information § rendered.” Oliver
Remien, Germany: Proof of and
Information About Foreign Law—Duty
to Investigate, Expert Opinions and a
Proposal for Europe, in TREATMENT OF
FOREIGN LAW: DYNAMICS TOWARDS
CONVERGENCE? 183, 203 #£(Yuko
Nishitani ed., 2017).*
. In France, a statement about foreign
law “is subject to adversarial debate
and it is not binding upon the judge
who has to verify, among other things,
the impartiality” of the statement.
Sabine Corneloup, France—The
Evolving Balance Between the Judge
and the Parties in France, in
TREATMENT OF FOREIGN LAW: DYNAMICS
TOWARDS CONVERGENCE? 157, 171
(Yuko Nishitani ed., 2017).5
+ See Zivilprozessordnung [ZPO] [Code of Civil Procedure],
§ 293, https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/
897 15/103136/F-842321361/ZPO. pdf, translation at
https://www.gesetze-im-
interret.de/englisch_zpo/englisch_zpo.htm] (“The laws
applicable in another state, customary laws, and statutes must
be proven only insofar as the court is not aware of them. In
making inquiries as regards these rules of law, the court is not
restricted to the proof produced by the parties in the form of
supporting documents; it has the authority to us other sources
of reference as well, and to issue the required orders for such
use.”).
5 See Code de _ ~procédure civile, art. 246,
https://www.legifrance.gouv.fr/affichCodeArticle.do:jsessionid=
8B6C6B1B7107BAED721D0D2D0500A51 1.tplgfr27s_1?idArticl
SMRH:4855987 33.2
. Spanish law provides that “[n]o report
or opinion, national or international, on
foreign law, shall be binding for
Spanish courts.” Carmen Azcarraga
Monzonis, Spain’ The Application of
Foreign Laws in Spain—Critical
Analysis of the Legal Novelties of 2016,
in TREATMENT OF FOREIGN LAW:
DYNAMICS TOWARDS CONVERGENCE?
329, 333 (Yuko Nishitani ed., 2017).®
. In Switzerland, “[IJegal information on
foreign laws is not binding on Swiss
judicial authorities.” [laria Pretelli &
Shaheeza Lalani, Switzerland: The
Principle Tura Aliena Novit Curia and
the Role of Foreign Law Advisory
Services in Swiss Judicial Practice, in
TREATMENT OF FOREIGN LAW: DYNAMICS
e=LEGIART10000064 10377 &cidTexte=LEGITEXT0000060707
16&dateTexte=200505 14, translation at
https://www.legifrance.gouv.fr/content/download/
1962/13735/.../Code_39.pdf (“The judge is not bound by the
findings or conclusions of the expert.”).
6 See Ley 29/2015, de 30 de julio, de cooperacién juridica
internacional en materia civil, BOE-A-2015-8564, art. 33.4,
http://www.boe.es/buscar/doc. php?id=BOE-A-2015-8564,
translation in Carmen Azcarraga Monzonis, Spain: The
Application of Foreign Laws in Spain—Critical Analysis of the
Legal Novelties of 2015, in TREATMENT OF FOREIGN LAW:
DYNAMICS TOWARDS CONVERGENCE? 329, 333 (Yuko Nishitani
ed., 2017) (“No report or opinion, national or international, on
foreign law, shall be binding for Spanish courts.”).
SMRH:4855987 33.2
TOWARDS CONVERGENCE? 375, 390
(Yuko Nishitani ed., 2017).’
- In Japan, “[t]he legal information
provided is not binding upon the
judicial authorities. Instead, they are
obliged to investigate and assess the
reliability of the information submitted
ex officio.” Shunichiro Nakano, Japan:
Proof of and Information About Foreign
La, in Japan, in TREATMENT OF
FOREIGN LAW: DYNAMICS TOWARDS
CONVERGENCE? 529, 533 (Yuko
Nishitani ed., 2017).
B. THE SECOND CIRCUIT'S RULE IS
INCONSISTENT WITH
INTERNATIONAL PRACTICE.
The Second Circuit’s “bound-to-defer” rule is
also inconsistent with the world’s two most
important international treaties on the
interpretation of foreign law: the European
Convention on Information on Foreign Law, June 7,
1968, 720 U.N.T.S. 154, which has 46 parties,* and
the Inter-American Convention on Proof «f and
Information on Foreign Law, May 8, 1979, 1439
’ See Schweizerische Zivilprozessordnung [ZPO], [Civil
Procedure Code] Dec. 19, 2008, SR 272, art. 157, translation at
https://www.admin.ch/opc/en/classified-
compilation/20061121/index.html (“The court forms its opinion
based on its free assessment of evidence taken.”).
8 See Chart of Signatures and Ratifications of Treaty,
https://www.coe.int/en/web/conventions/full-list/-
/conventions/treaty/062/signatures?p_auth=GIHMAINF.
SMRH ‘485598733.2
-24-
U.N.T.S. 111, which has 12 parties.* Both treaties
allow the courts of a party to request information
about foreign law from a designated foreign
government official. But even when there is a formal
request and foreign government reply in accordance
with the treaty process, a court is not bound to defer
to the foreign authority's reply. European
Convention, art. 8 (“The information given in the
reply shall not bind the judicial authority from
which the request emanated.”); Inter-American
Convention, art. 6 (“[Parties] shall not be required to
apply the law, or cause it to be applied, in
accordance with the content of the reply received.”).
These treaties “confirm that the court of appeals’
rule is out of step with international practice.” Brief
for the United States as Amicus Curiae on Petition
for a Writ of Certiorari at 12 n.2.
These treaties show that foreign countries do
not expect each other’s courts to be bound to defer.
To the contrary, these foreign countries are
concerned that a binding approach would violate the
principle that courts should independently
determine foreign law. As the official Explanatory
Report on the European Convention explains, the
rule providing that foreign government statements
are not binding “was inserted in order to stress the
desire of the Convention to respect the courts’
independence.” Council of Europe, Explanatory
Report to the European Convention on Information
on Foreign Law, June 7, 1968, at 6, available at
https://rm.coe.int/16800c92f3. See also Yuko
® See General Information of the Treaty,
https://www.oas.org/juridico/english/sigs/b-43.html.
SMRH:4855987 33.2
-25-
Nishitani, Treatment of Foreign Law: Dynamics
Towards Convergence?—General Report, in
TREATMENT OF FOREIGN LAW: DYNAMICS TOWARDS
CONVERGENCE? 56 (Yuko Nishitani ed., 2017) (“[T]he
large majority of national reporters argue that the
reply should not be binding upon the judge... ,
although this is not a unanimous view... . [T]he
reply ought to remain non-binding to allow the judge
to examine the reliability and accuracy of the
provided information and, if it is imprecise or
incorrect, conduct further research into the content
of foreign law by referring to other sources.”).
The United States is not a party to either of
these treaties. However, the United States has
officially expressed its view to the Hague Conference
on Private International Law that any future
convention on foreign law should likewise provide
that the views of foreign government authorities are
not binding on receiving courts. See Response of the
United States of America to Feasibility Study on the
Treatment of Foreign Law Questionnaire, Prel. Doc.
No 25 (Oct. 2007), Response to Question 29(c)
(answering “YES” to the following question:
“Should the information received be non-binding
(as opposed to _ binding)?”), available at
https-//assets. hcch.net/upload/wop/genaff_pd09us.pdf
Il. DEFERENCE PRINCIPLES SHOULD NOT
BE PART OF THE DETERMINATION OF
FOREIGN LAW.
A rule requiring deference to foreign
government statements about foreign law would not
SMRH:485598738.2
-26-
only undermine the accuracy and independence of
U.S. legal judgments, but also have the effect of
delegating to foreign governments power to influence
the application of domestic law—and hence the
implementation of domestic policy—in a wide range
of cases in which the proper application of U.S. law
depends on the determination of foreign law.
Moreover, international comity does not require that
U.S. courts be bound to defer to foreign government
statements about foreign law. While the ordinary
Rule 44.1 approach to issues of foreign law is
unlikely to raise comity concerns, a “bound-to-defer”
approach may raise such concerns.
A. ARULE REQUIRING DEFERENCE IS
INAPPROPRIATE BECAUSE IT
WOULD ALLOW FOREIGN
GOVERNMENTS TO UNDULY
INFLUENCE THE APPLICATION OF
U.S. LAW.
The proper application of American law
frequently depends on the determination of foreign
law. For example, foreign law determines whether
foreign corporations have the capacity to sue and be
sued in U.S. courts; defendants in breach of contract
cases may plead a defense of supervening foreign
illegality; domestic statutes may create liability for
conduct in violation of foreign law; the protection
against sclf-incrimination may apply to potential
foreign prosecutions; courts manage civil discovery
in light of foreign laws that affect potential
compliance; extraterritorial service of process in
federal court is permissible as prescribed by the
foreign country’s law; foreign laws may be relevant
SMRH ‘4855987 33.2
-27-
to venue questions in U.S. courts; laws creating
exceptions for double taxation require an assessment
of whether foreign tax liability attaches; resolution
of various types of disputes requires determination
of the validity of a foreign marriage; and—as in this
case—foreign law determines whether a party can
successfully raise the defense of foreign sovereign
compulsion. See Zachary D. Clopton, Judging
Foreign States, 94 WASH. U. L. REV. 1, 15-17 (2016)
(collecting sources and other examples); see also The
Amistad, 40 U.S. 518, 520, 593-97 (1841) (Story, J.)
(applying this Court’s independent interpretation of
Spanish law to free captured slaves and to reject as
evidence of their ownership the “public documents of
the [Spanish] government” that accompanied the
vessel).
In these situations the determination of
foreign law fundamentally influences the application
of domestic law and hence the implementation of
domestic policy. It is therefore crucial that U.S.
courts retain the authority to independently
determine foreign law in these cases.
The Second Circuit’s “bound-to-defer” rule
would inappropriately delegate this authority from
U.S. courts to foreign government actors by
requiring that U.S. courts defer to the
determinations of foreign government actors
appearing in U.S. court and by barring U.S. courts
from independently determining foreign law as they
are authorized to do under Rule 44.1. This
delegation would allow foreign governments to
influence the application of American law in a wide
range of cases—even though foreign governments
SMRH 4855987 33.2
-28-
lack the same interest as U.S. courts in ensuring the
proper application of American law. The Second
Circuit’s “bound-to-defer” rule would have this effect
whenever the application of American law depends
on the determination of foreign law and a foreign
government decides to submit an official statement
interpreting that law. For example, the Second
Circuit’s rule would seem to permit a foreign
government to intervene in any case against a
foreign corporation and conclusively declare that
corporation not capable of being sued in a U.S. court.
See Fed. R. Civ. P. 17(b)(2) (“Capacity to sue or be
sued is determined .. . for a corporation, by the law
under which it was organized ... .”). See also United
States v. McNab, 331 F.3d 1228, 1242 (11th Cir.
2003) (“[I)t is not difficult to imagine a Lacey Act
defendant in the future, who has the means and
connections in a foreign country, lobbying and
prevailing upon that country’s officials to invalidate
a particular law serving as the basis for his
conviction in the United States. . . .There would
cease to be any reason to enforce the Lacey Act, at
least with respect to foreign law violations, if every
change of position by a foreign government as to the
validity of its laws could invalidate a conviction.”).
In the antitrust setting, there are special
reasons for U.S. courts to determine foreign law
independently—and not simply defer to foreign
government statements about foreign law. In some
cases, statements may be submitted “to shield the
foreign defendants from liability in the U.S., even if
their conduct was anticompetitive.” Marek
Martyniszyn, Foreign States’ Amicus Curiae
Participation in U.S. Antitrust Cases, 61 ANTITRUST
SMRH :485598733.2
- 29-
BULL. 611, 630 (2016). It is neither surprising, nor is
it disrespectful to foreign governments, to
acknowledge that they, like the United States, will
occasionally take litigation positions abroad to
promote the interests of their nationals. See id. at
641 (observing the possibility that “a [foreign] state
participates as amicus before a U.S. court to meet
expectations of some local constituencies or lobbying
groups”); Jn re Vitamin C Antitrust Litigation, 810
F. Supp. 2d 522, 552 (E.D.N.Y. 2011) (finding that
Chinese ministry's statement “does not read like a
frank and straightforward explanation of Chinese
law. Rather, it reads like a carefully crafted and
phrased litigation position. . . . [All] of the points
above suggest that the Ministry's assertion of
compulsion is a _ post-hoc attempt to shield
defendants’ conduct from antitrust scrutiny rather
than a complete and straightforward explanation of
Chinese law. . . .”); see also infra Part II1.B
(discussing situations in which U.S. courts assess
the motives of foreign governments).
This is not to suggest that foreign government
statements that are consistent with or motivated by
foreign governmental interests, or the interests of
foreign businesses, are submitted in bad faith. It
merely means that judicial reliance on these
statements will not necessarily further the principle
of accuracy and could, in some cases, interfere with
U.S. law and policy.
SMRH:4855987 33.2
B. INTERNATIONAL COMITY DOES
NOT REQUIRE DEFERENCE TO A
FOREIGN GOVERNMENT'S
STATEMENT ABOUT FOREIGN
LAW.
Respondent seems to suggest that the Second
Circuit’s “bound-to-defer” rule is necessary as a
matter of international comity to ensure that U.S.
courts give “proper respect” to the sovereignty of
foreign countries. See Brief in Opposition at 26,
Animal Science Products, Inc. v. Hebei Welcome
Pharmaceutical Co., No. 16-1220 (U.S. June 5, 2017).
This is incorrect. International comity does not
require deference to a foreign government's
statement about foreign law.!°
To be sure, international comity is one
traditional rationale for choice-of-/aw rules that call
for the application of foreign law as a rule of decision
under specified circumstances. See Bank of Augusta
v. Earle, 38 U.S. (13 Pet.) 519, 589 (1839) (“[T]he
laws of one [country], will, by the comity of nations,
be recognised and executed in another . . . .”); JOSEPH
'© In other contexts, comity concerns have not prevented this
Court from critically characterizing and rejecting foreign
government positions in litigation. See RJR Nabisco, Inc. v.
European Community, i36 S.Ct. 2090, 2108 (2016) (“refusling]
to adopt” the position of the European Community and its
member states, and referring to the position as a “double
standard”); see also Hannah L. Buxbaum, Foreign
Governments as Plaintiffs in U.S. Courts and the Case Against
‘Judicial Imperialism”, 73 WASH. & LEE L. REV. 653, 678 et seq.
(2016) (discussing numerous other cases in which U.S. courts
rejected claims of foreign sovereigns instead of deferring based
on comity doctrine).
SMRH -485598733.2
-31-
STORY, COMMENTARIES ON THE CONFLICT OF LAWS §
38 (2d ed. 1841) (1834) (“[The] comity of nations . . .
is the most appropriate phrase to express the true
foundation and extent of the laws of one nation
within the territories of another.”).
But this case is different. This case involves
the interpretation of foreign law, not its application
as a rule of decision. And foreign law is at issue
because the proper application of domestic law—
namely U.S. antitrust law and possible U.S.-law
defenses to its application—depends on _ the
determination of foreign law, not because choice-of-
law rules require foreign law to be applied. See
supra Part III.A.'' Therefore, this case does not
implicate the international comity rationale
underlying choice-of-law rules.
In addition, the concerns that animate the
rules governing the determination of foreign law are
fundamentally different than those that animate
comity doctrines. The former are concerned with
ensuring that U.S. courts independently and
accurately determine the content of foreign law,
whereas the latter are concerned with the respect
'! Even in the choice-of-law context, international comity
does not require deference. It is well established, for example,
that a court may decline to apply foreign law that is “contrary
to the strong public policy of the forum.” Restatement (Second)
of Conflict of Laws § 90 (Am. Law Inst. 1971); see a/so STORY,
supra, § 25, at 31 (“No nation can . . . be required to sacrifice its
own interests in favor of another: or to enforce doctrines which,
in a moral or political view, are incompatible with its own
safety or happiness, or conscientious regard for justice and
duty.”).
SMRH °4855987 33.2
-32-
owed between governments. See supra Part I.
Comity considerations should therefore be kept
separate from Rule 44.1 and other principles
governing the determination of foreign law.
To the extent that this Court is concerned
about protecting international comity, nothing in
Rule 44.1 undermines other doctrines that protect
comity interests directly. There are many
“international comity doctrines” that apply in U.S.
courts, including the act of state doctrine,
presumption against extraterritoriality, foreign state
compulsion, recognition of foreign judgments, forum
non conveniens, international comity abstention,
antisuit injunctions, foreign discovery, foreign
sovereign immunity, foreign official immunity, and
the right of foreign governments to bring suits in
U.S. courts. See generally William S. Dodge,
International Comity in American Law, 115 COLUM.
L. Rev. 2071 (2015). These doctrines are distinct
from the question before the Court in this case.'”
In any event, because the Second Circuit's
“bound-to-defer” rule is inconsistent with foreign and
international practice, see supra Part Il, it is
unlikely that a foreign government could genuinely
view a U.S. court’s respectful but independent
'2 Because the Second Circuit did not rule on Respondent's
act of state doctrine and foreign sovereign compulsion defenses,
and because this Court decided not to review the Second
Circuit’s decision to abstain on grounds of international comity,
this Court should address only how foreign law should be
determined and should not address how any of the
international comity doctrines potentially implicated in this
case should be applied.
SMRH :485598733.2
-33-
determination of foreign law as a violation of
principles of international comity.
More specifically, Respondent suggests that
the Second Circuit’s “bound-to-defer” rule is
necessary to prevent U.S. courts from causing
offense to foreign governments by speculating about
foreign government motives. See, eg., Brief in
Opposition at 26, Anima! Science Products, Inc. v.
Hebei Welcome Pharmaceutical Co., No. 16-1220
(U.S. June 5, 2017) (“The district court’s speculation
about the Chinese government’s motives illustrate
the problem.”).
But there is nothing sacrosanct about
government motives. See Clopton, supra, at 10-23
(collecting examples of U.S. courts sitting in
judgment of foreign governments, foreign laws,
foreign legal acts, foreign legal systems, and foreign
government interests). For example, in W.S.
Kirkpatrick & Co. v. Environmental Tectonics Corp.,
493 U.S. 400 (1990), this Court held that dismissal of
a suit under the act of state doctrine was improper,
thus allowing the suit to proceed despite the District
Court’s finding that the suit could “impugn or
question the nobility of a foreign nation’s
motivations.” /d. at 408-10. Moreover, in suits
against foreign governments under the Foreign
Sovereign Immunities Act, U.S. courts may assess
the legal liability of foreign governments, which,
depending on the elements of the claim, may require
courts to make findings about the purpose or intent
of foreign government actions. Similarly, the
possibility that determinations of foreign law may in
some cases touch on foreign government motives
SMRH:486598733.2
-34-
should not interfere with U.S. courts’ ability to make
those determinations accurately and independently.
Indeed, requiring courts to defer to foreign
government interpretations may put undue pressure
on courts to rely on other comity doctrines. A court
faced with a potentially unreliable foreign
government statement should be _ able to
independently evaluate the statement’s
persuasiveness and then to explain honestly the
basis of that independent evaluation. If a court were
bound to defer to an unreliable statement, as the
Second Circuit’s rule would require, then there is a
risk that the court would be tempted to invoke
abstention-like options that might not otherwise be
appropriate. Cf Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 817 (1976)
(describing the “virtually unflagging obligation of the
federal courts to exercise the jurisdiction given
them”).
C. |THE SECOND CIRCUIT'S “BOUND-
TO-DEFER” APPROACH RAISES
COMPLEX QUESTIONS OF
FOREIGN LAW THAT MIGHT
THEMSELVES RAISE
INTERNATIONAL COMITY
CONCERNS.
Directing U.S. courts to defer to foreign
government determinations of law sounds simple,
but in fact this approach would raise challenging
questions and would risk offense to international
comity, thus undermining its chief justification.
SMRH:4855987 33.2
A rule that requires deference to certain
foreign government statements implies that courts
would have to decide which foreign statements
receive this treatment. For example, U.S. courts
would presumably have to determine which foreign
government institutions are permitted to make
authoritative statements about foreign law.’ This
determination likely would require government-by-
government assessments, and may vary depending
on the allocation of authority within each country
(e.g., parliamentary versus presidential versus
nondemocratic). The choice also could depend on
whether the foreign law in question is judge-made
law, legislation, executive order or decree, or
administrative regulation. Courts would have to
decide how to respond if the foreign government
experienced a change in position (or leadership)
between the underlying conduct and the litigation,
or if two branches of a foreign government submitted
conflicting determinations. And at least in some
circumstances, the Second Circuit suggests that the
“reasonableness” of foreign government statements
may still be scrutinized. See Jn re Vitamin C, 837
F.3d at 189.
Asking courts to make these determinations is
at least as likely to raise international comity
concerns as the existing Rule 44.1 approach. Because
the Second Circuit's “bound-to-defer” rule is
inconsistent with foreign and international practice,
‘8 In many cases, this authority might be sensibly assumed
when the foreign government entity is a foreign country’s
highest court: but the inquiry may be far more complex when
foreign government entities other than courts are involved.
SMRH:4855987 33.2
-36-
it is unlikely that a foreign government could
genuinely view a U.S. court’s respectful but
independent determination of foreign law in
accordance with Rule 44.1 as a violation of principles
of international comity. See supra Part II. But under
the Second Circuit’s approach, foreign governments
could be offended when U.S. courts categorize some
of their government actors as authoritative and
others not, and some of their statements “reasonable
under the circumstances” and others not.
IV. U.S. COURTS SHOULD GIVE RESPECTFUL
CONSIDERATION TO A FOREIGN
GOVERNMENT'S STATEMENT ABOUT
FOREIGN LAW, BUT THEY STILL MUST
DETERMINE FOREIGN LAW
INDEPENDENTLY.
U.S. courts should give respectful
consideration to a foreign government's statements
about its law. See STEPHEN BREYER, THE COURT AND
THE WORLD: AMERICAN LAW AND THE NEW GLOBAL
REALITIES 92 (2015) (“[OJur Court does, and should,
listen to foreign voices, to those who understand and
can illuminate relevant foreign laws and practices.”):
cf Sanchez-Lilamas v. Oregon, 548 U.S. 331, 353
(2006) (noting that the International Court of
Justice’s interpretation of a treaty “deserves
‘respectful consideration,” but declining to be bound
by that interpretation) (quoting Breard v. Greene,
523 U.S. 371, 375 (1998) (per curiam)). This
respectful consideration is consistent with the
principles of judicial independence and accuracy that
underpin the determination of foreign law under
Rule 44.1.
SMRH:4855987 33.2
Indeed, in some cases U.S. courts may find it
helpful to actively seek information about foreign
law from a foreign government. Efforts to clarify the
process for foreign government participation in U.S.
litigation should be pursued, and such participation
should be encouraged. See, e.g, Communication to
Courts, 1978 Digest of United States Practice in
International Law ch. 4, § 1 at 560-63 (describing
this Court’s efforts to encourage foreign governments
to directly file amicus briefs rather than
communicating to U.S. courts through the State
Department). Efforts to formalize inter-court
relationships seem especially promising. See, e.g., 11
U.S.C. § 1525 (providing for court-to-court
communication in cross-border bankruptcy cases);
Memorandum of Understanding Between the Chief
Justice of New South Wales and the Chief Judge of
the State of New York on References of Questions of
Law (Feb. 2, 2017), available at
http://www.supremecourt.justice.nsw.gov.au/Pages/s
co2_practiceprocedure/sco2_internationaljudicialcoop
eration/SCO2_agreement_newyork.aspx (providing
for cooperation between New York state courts and
the courts of New South Wales in resolution of
questions of the other's law); see also Lehman
Brothers v. Schein, 416 U.S. 386, 390-91 (1974)
(praising the use of the formal certified-question
procedure in domestic interjurisdictional cases).
But a foreign government’s statements cannot
be binding on U.S. courts. Instead, U.S. courts
should accurately and independently determine the
meaning of foreign law taking into account not only
a foreign government’s own statements, but also
other relevant information about that law, as
SMRH:485598733.2
-38-
expressly authorized by Rule 44.1. This independent
approach is especially important when—as in this
case and many other cases—the proper application
of American law depends on the determination of
foreign law. Cf BREYER, supra, at 7 (“I do not ignore
the basic fact that the American people can and
must democratically determine their own laws.”).
Just as U.S. courts should respectfully consider
foreign government statements, foreign governments
should respect the independence of U.S. courts when
ruling on questions of law.
The Second Circuit’s “bound-to-defer” rule is
unnecessary to promote the respectful consideration
of foreign government statements about foreign law.
Rule 44.1—which already authorizes’ the
consideration of “any relevant material or source”—
and the principle of accuracy in the determination of
foreign law, already ensure this. This case requires
no more than reaffirming those basic principles.
CONCLUSION
The judgment of the Court of Appeals should
be reversed.
SMRH:4855987 33.2
-39-
Respectfully submitted,
NEIL A.F. POPOVIC
COUNSEL OF RECORD
SHEPPARD, MULLIN,
RICHTER & HAMPTON LLP
Four Embarcadero Center,
17% Floor
San Francisco, CA
94111-4109
npopovic@sheppardmullin.com
415-774-3156
SMRH :485598733.2
APPENDIX"*
George A. Bermann is Walter Gellhorn
Professor of Law and Jean Monnet Professor of EU
Law at Columbia Law School, where he teaches and
writes on, among other things, Transnational
Litigation and International Commercial and
Investment Arbitration, and he directs Columbia
Law School’s Center for International Commercial
and Investment Arbitration. He is an affiliated
faculty member of the School of Law of Sciences Po
(Paris) and teaches regularly at Georgetown Law
Center (Washington, D.C.) and the Masters
Programs in International Dispute Resolution
(University of Geneva). Professor Bermann is a
frequent arbitrator in both international commercial
and investment disputes, and he has _ served
frequently as a foreign law expert in proceedings in
U.S. and foreign courts, as well as_ before
international arbitral tribunals. He is the former
President of the American Society of Comparative
Law and the Académie internationale de droit
comparé (Paris). At present, he scrves as Chief
Reporter of the American Law Institute’s
Restatement of the U.S. Law of International
Commercial and Investment Arbitration.
Pamela K. Bookman is an Assistant Professor
of Law at Temple University Beasley School of Law.
'4 Several amici are reporters or advisers for restatement
and other projects of the American Law Institute, including the
Restatement (Third) of Conflict of Laws and the Restatement
(Fourth) of Foreign Relations Law. They join this brief in their
individual] capacity. This brief should not be taken to represent
the views of the American Law Institute.
SMRH:4855987 33.2
A-2
She teaches courses on Civil Procedure, Contracts,
and International Litigation and Arbitration. Her
relevant publications include Litigation Isolationism,
67 STAN. L. REV. 1081 (2015), and The Unsung
Virtues of Global Forum Shopping, 92 NOTRE DAME
L. REV. 579 (2016).
Andrew Bradt is an Assistant Professor of
Law at the University of California, Berkeley School
of Law. He writes and teaches in Civil Procedure,
Conflict of Laws, and International Civil Litigation.
Stephen B. Burbank is David Berger Professor
for the Administration of Justice at the University of
Pennsylvania Law School. He has been an Adviser to
the American Law Institute’s Project on
Transnational Rules of Civil Procedure, the
American Law Institute’s International Jurisdiction
and Judgments Project, and the Restatement (Third)
of Conflict of Laws. Relevant publications include:
The World in Our Courts, 89 MICH. L. REV. 1456
(1991); The Reluctant Partner: Making Procedural
Law for International Civil Litigation, 57 L. &
CONTEMP. PROB. 101 (1994); Jurisdictional
Equilibration, the Proposed Hague Convention and
Progress in National Law, 49 AM. J. COMP. L. 203
(2001); and Federalism and Private International
Law: Implementing the Hague Choice of Court
Convention in the United States, 2 J. Priv. INTL L.
287 (2006).
Kevin M. Clermont is the Ziff Professor of Law
at Cornell Law School. He specializes in Civil
Procedure. His relevant pyblications include Deyrees
of Deference: Apnilying vs. Adopting Another
SMRH :485598733.2
A-3
Sovereign's Law, 103 CORNELL L. REV. 243 (2018),
and Xenophilia in American Courts, 109 HARV. L.
REV. 1120 (1996) (with Theodore Eisenberg).
Zachary D. Clopton is an Assistant Professor
of Law at Cornell Law School. He teaches courses on
Civil Procedure and International Litigation. His
relevant publications include Judging Foreign
States, 94 WasH. U. L. REV. 1 (2016) and
Transnational Class Actions in the Shadow of
Preclusion, 90 IND. L. J. 1387 (2015).
Ralf Michaels is Arthur Larson Professor of
Law at Duke University School of Law. He currently
serves as an Adviser for the American Law
Institute’s Restatement (Third) of Conflict of Laws
and for its Restatement (Fourth) of Foreign
Relations Law. His pertinent publications include
Interpretation and Development of Foreign Law {in
German], 116 ZEITSCHRIFT FUR ZIVILRPOZESS 3
(2003), and The Conflicts Restatement and the
World, 110 AM. J. INTL L. UNBOUND 155 (2016).
Kermit Roosevelt is a Professor of Law at the
University of Pennsylvania Law School, and the
author of several books and articles on conflict of
laws, including CONFLICT OF LAWS: CONCEPTS AND
INSIGHTS (Foundation Press, 2nd ed. 2015) and
CONFLICT OF LAWS: CASES, COMMENTS, QUESTIONS
(West, 9th ed. 2013) (with Herma Hill Kay and Larry
Kramer). He currently serves as Reporter for the
Restatement (Third) of Conflict of Laws.
Louise Ellen Teitz is Distinguished Service
Professor of Law at Roger Williams University
SMRH :4855987 33.2
A-4
School of Law, Bristol, Rhode Island. She previously
served as First Secretary at the Hague Conference
on Private International Law and is an expert on
conflict of laws and international litigation. Her
relevant publications on foreign law include
Determining and Applying Foreign Law: The
Increasing Need for Cross-border Cooperation, 45
N.Y.U. J. INTL L. & POL. 1081 (2013), From the
Courthouse in Tobago to the Internet: The
Increasing Need to Prove Foreign Law in U.S.
Courts, 34 J. MAR. L. & Com. 97 (2003), and
TRANSNATIONAL LITIGATION (Lexis Law 1999).
Christopher A. Whytock is Professor of Law at the
University of California, Irvine, School of Law. He
currently serves as an Associate Reporter for the
American Law Institute’s Restatement (Third) of
Conflict of Laws and as an Adviser for its
Restatement (Fourth) of Foreign Relations Law. His
publications on conflict of laws include The Evolving
Forum Shopping System, 96 CORNELL L. REV. 481
(2011), Myth of Mess? International Choice of Law in
Action, 84 N.Y.U. L. REV. 719 (2009), and CONFLICT
OF Laws (6th ed.) (West Hornbook Series,
forthcoming 2018) (with Peter Hay, Patrick J.
Borchers & Symeon C. Symeonides).
SMRH:4855987 33.2
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.