Supreme Court Considers Whether U.S. Courts Are Bound by a Foreign Government’s Interpretation of Its Own Law
The Supreme Court heard oral arguments in Animal Science Products, Inc. v. Hebei Welcome Pharm. Co. Ltd., No. 16-1220, on Tuesday, April 24, 2018, to decide whether a court analyzing foreign law under Federal Rule of Civil Procedure 44.1 is required to accept as binding a submission from a foreign government characterizing its own law, an issue on which the circuit courts are split. Currently, the Second and Ninth Circuits follow a “bound to defer” standard, the D.C. and Sixth Circuits consider a foreign government’s interpretation as one “relevant material or source” to be considered along with other evidence, and the Fifth, Seventh, Tenth, and Eleventh Circuits each have various tests that give some, but not total, deference to statements by foreign government entities. The resolution of this split could have broad implications for cases involving conflicts between U.S. and foreign law—such as cases involving discovery disputes over documents and data located abroad and antitrust suits involving collective exporting activity.