The Challenge of Accommodating Foreign Law in Domestic Courts and the Continuing Relevance of Private International Law

Abstract

U.S. courts and lawyers are used to considering “foreign law” and making comparative law judgments about whose law to apply, especially since content-selecting theories of choice of law have become the dominant approach to choice of law in the U.S. for domestic state/state conflicts. But as the number of cross-border cases in U.S. courts continues to grow, so does the need to accommodate foreign law in domestic court conflicts or private international law determinations. There is an inclination to treat decisions on choice of law for wholly U.S. cases the same as those that include an international element.

When the foreign law is not that of a sister state or even a common-law jurisdiction, courts become intimidated. The impact of the “foreignness” on the process of determining and applying the law continues to create uncertainty and inconsistency in U.S. caselaw, even after more than fifty years of a specific procedural law in federal court, Federal Rule of Civil Procedure 44.1, which has itself become a model for the majority of state court procedural rules. The procedure envisioned by the rule and the related Advisory Committee notes is a flexible, open-ended one that in effect requires the court to analyze the process of selecting the law to apply in much the way it does in a domestic case. What becomes problematic is (1) how we ascertain the content of that foreign law and (2) what happens when parties fail to indicate that foreign law should be applied. The former issue, ascertaining the content of foreign law, has received significant attention in U.S. courts, including in the Supreme Court this past term in Animal Science v. Hebei, a unanimous decision about the level of deference to be accorded a foreign sovereign’s determination of its own law.

The author considers four aspects of foreign law in domestic courts. First, the author examines the issue of ascertaining the content of foreign law, as demonstrated by the recent U.S. Supreme Court Case of Animal Science Products, Inc. v. Hebei Welcome Pharmaceuticals Co. Second, the author analyzes the important and growing counter-trend in state legislatures to limit or ban the use of foreign law in state courts through anti-foreign law or “anti-Sharia” statutes. Third, the author reflects on the continuing trend of federal and state courts to find that the parties have either waived applying the foreign law or consented to forum law if they have not raised the issue of what law should apply. Lastly, the author considers some existing mechanisms for cooperation in determining foreign law and evaluates whether any further movement for global instruments or cross-border solutions are likely.