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Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. (U.S. Sup. Ct.)

Published online by Cambridge University Press:  12 March 2020

Christopher A. Whytock
Christopher A. Whytock*
Affiliation:
Christopher A. Whytock is Professor of Law and Political Science at the UC Irvine School of Law. The author is an associate reporter for the American Law Institute's Restatement (Third) of Conflict of Laws and a member of the U.S. State Department's Advisory Committee on Private International Law. The author was one of the lead co-authors of an amicus brief filed in the case. This Introductory Note expresses the author's personal views and should not be taken to represent the views of the American Law Institute.
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Extract

Domestic courts frequently apply foreign law. For example, the forum's choice-of-law rules may require a court to apply foreign law, or a party may expressly base a claim or defense on foreign law. Private international law (or “conflict of laws”) provides principles governing many aspects of the way courts should identify and interpret foreign law.

Type
International Legal Documents
Information
International Legal Materials , Volume 59 , Issue 1 , February 2020 , pp. 1 - 10
Copyright
Copyright © 2020 by The American Society of International Law

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References

ENDNOTES

1 See generally Peter Hay, Patrick J. Borchers, Symeon C. Symeonides & Christopher A. Whytock, Conflict of Laws §§ 12.15–12.19, at 550–561 (6th ed., 2018); Treatment of Foreign Law: Dynamics Towards Convergence? (Yuko Nishitani ed., 2017); Maarit Jäntera-Jareborg, Foreign Law in National Courts—A Comparative Perspective, 304 Recueil des Cours 281 (2003).

2 F.R.C.P. 44.1. See generally 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 (1967).

3 See Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd 138 S.Ct. 1865, 1873 (Animal Science) (“Rule 44.1 does not address the weight a federal court determining foreign law should give to the views presented by the foreign government … Nor does any other rule or statute.”)

4 Id. p. 1869 (“When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement?”). For a prior discussion of this case, see Kristen E. Eichensehr, International Decision, 113 Am. J. Int'l. L. 116 (2019).

5 These included defenses based on the act of state doctrine, the foreign sovereign compulsion doctrine, and the principles of international comity. Animal Science, supra note 3, p. 1870.

6 Id.

7 Id. p. 1871.

8 In re Vitamin C Antitrust Litigation, 784 F.Supp.2d 546, 557 (E.D.N.Y. 2008) (denying respondents' motion to dismiss). The District Court later denied respondents' motion for summary judgment, “declin[ing] to defer to the Chinese government's statements to the court regarding Chinese law” and holding that “[t]he Chinese law relied upon by [respondents] did not compel their illegal conduct.” 810 F.Supp.2d 522, 525 (E.D.N.Y. 2011).

9 In re Vitamin C Antitrust Litigation, 837 F.3d 175, 189 (2d. Cir. 2016).

10 Brief as amici curiae in Support of Petitioners, Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., 138 S.Ct. 1865 (2018) (No. 16-1220), 2018 WL 1202845 (‘Brief’), pp. 36–39. The author was one of the two lead co-authors of the brief.

11 Animal Science, supra note 3, p. 1869. The Court noted that “[t]he correct interpretation of Chinese law” was not before it and that it took no position on that question. Id. p. 1875.

12 Id. p. 1873.

13 Id.

14 Id.

15 Id.; Brief, supra note 10, pp. 5–10.

16 Id. pp. 11–16.

17 Id. pp. 16–18.

18 See Animal Science; Brief, supra note 10, pp. 23–25.

19 European Convention on Information on Foreign Law, June 7, 1968, 720 U.N.T.S. 154.

20 Inter-American Convention on Proof of and Information on Foreign Law, May 8, 1979, 1439 U.N.T.S. 111.

21 See 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.”).

22 Cf. Animal Science, p. 1875 (referring favorably to the principle that “a government's expressed view of its own law is ordinarily entitled to substantial weight but not conclusive weight”).

23 Brief, supra note 10, p. 37.