Supreme Court Rejects Absolute Deference to Foreign Government’s Interpretation of Own Laws

In Animal Science Products v. Hebei Welcome Pharmaceutical Co.¹, the Supreme Court of the United States held that foreign governments are not entitled to absolute deference on the construction of their own laws. The Court’s decision rejected the Second Circuit’s previous ruling that federal courts are “bound to defer” to a foreign government’s reasonable interpretation of its own law.

While litigants and commentators (including ourselves) debated the breadth of the Second Circuit’s rule, the Supreme Court has now made clear that federal courts should grant respect to a foreign government’s construction of its own law but are not bound to give those pronouncements conclusive effect. In doing so, the Court adopted a view similar to what we had set forth in an earlier article — that the level of deference to be given to a foreign government’s construction should depend on the circumstances. The Supreme Court’s decision will have a significant impact on international litigation and insolvency proceedings in the United States, and it underscores the value of sophisticated counsel in cases involving foreign law.

The Second Circuit’s Decision 

The Second Circuit’s decision in this case,² made waves within the international litigation community. The plaintiffs were purchasers of Vitamin C who alleged that the defendants illegally fixed prices for their exports of Vitamin C from China. The defendants responded by arguing that Chinese law required them to fix prices and thus the district court should dismiss the case, based on principles of international comity. The Ministry of Commerce for the People’s Republic of China submitted an amicus brief in support of the defendants’ position that Chinese law mandated the alleged price fixing. For their part, the plaintiffs argued that there was no written law or regulation that supported the Ministry’s view and that China had previously told the World Trade Organization that it had ceased controlling Vitamin C exports in 2002. The district court rejected the defendants’ comity defense and the plaintiffs prevailed at trial. 

On appeal, the Second Circuit reversed after concluding that it was required to defer to the Chinese Commerce Ministry’s statements about Chinese law. Specifically, the Second Circuit held that U.S. courts are “bound to defer” to a foreign government’s statements “regarding the construction and effect of its laws and regulations,” so long as those statements are “reasonable under the circumstances presented.” 

After the Second Circuit’s decision, many disputed the precise contours of the court’s rule. Some interpreted the Second Circuit’s holding as an unflinching rule that courts must always defer to a foreign government’s reading of its own law, which placed the Second Circuit’s view in conflict with decisions from other circuits. Others viewed the Second Circuit’s “reasonableness” requirement as an important caveat that cabined the breadth of the court’s decision. Our view was that, even under the Second Circuit’s rule, “courts must consider the circumstances under which a foreign state submits an interpretation of its own laws in determining what level of deference to afford that interpretation.”³ In particular, we explained that relevant factors should include the persuasiveness of the foreign government’s opinion, the relative expertness of the entity submitting the opinion, the formality of the opinion, and whether the circumstances raise any concern of bias. The Supreme Court granted certiorari to resolve the uncertainty in the law. 

The Supreme Court’s Decision 

Rejecting the Second Circuit’s rule, the Supreme Court vacated and remanded. Justice Ginsburg’s opinion for the Court explained the history of the issue—tracing the common law’s treatment of foreign law questions as factual disputes through the modern approach embodied in Federal Rule of Civil Procedure 44.1. That Rule, the Court explained, “fundamentally changed the mode of determining foreign law in federal courts” by specifying that a court’s determination of foreign law “‘must be treated as a ruling on a question of law.’”⁴ According to the Court, the purpose of this change was to align the process for determining foreign law with the process for determining domestic law. Against the backdrop of this history, the Supreme Court has also long held that, in the spirit of “international comity,” federal courts should give respectful consideration to a foreign government’s views on the meaning of its own laws.⁵ 

The question presented in Animal Science Products required the Court to reconcile Rule 44.1’s objectives with the principles of international comity. The Court answered the question by explaining that, while a foreign government’s view of its own law is entitled to respect, “the appropriate weight in each case will depend upon the circumstances” and “a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials.” The Court explained that “[r]elevant considerations include the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.” Thus, courts may exercise more caution, for instance, when a foreign government’s interpretation is advanced in the course of litigation or is inconsistent with that foreign government’s past statements in other contexts. 

Practical Impact on International Litigation 

The Supreme Court’s decision will have a significant effect on U.S. litigation involving foreign law issues. Beyond the price-fixing issue in the Animal Science litigation, foreign law questions frequently arise in cases involving application of the Foreign Sovereign Immunities Act, in cross-border insolvency matters under Chapter 15 of the Bankruptcy Code, and in litigation where discovery runs up against foreign privacy laws, among many other contexts. A significant number of those cases are litigated in the Second Circuit. 

Moreover, by eschewing the Second Circuit’s bright-line rule in favor of a more nuanced approach, the Supreme Court’s decision puts a premium on sophisticated litigation counsel. Questions of foreign law will be hotly contested, and attorneys addressing those questions should present courts with a wide array of sources and arguments, just as they would when litigating a dispute over domestic law. 

Footnotes 

_{1) No. 16-1220.
2) In re Vitamin C Antitrust Litigation, 837 F.3d 175 (2016).
3) Hranitzky, et al., When a Court Interprets Foreign Law, There Is No Secret Password, New York Law Journal Vol. 256, No. 112 (2016).
4) Rule 44.1 provides: “In determining foreign law, the court may 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 ruling on a question of law.”
5) See, e.g., Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S.D. Iowa, 482 U.S. 522 (1987).}