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.” In 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 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 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.
ELECTRONIC RETAIL PAYMENT SYSTEMS IN CONFLICT OF LAWS Basic Electronic Payment Systems and Determination of the Applicable Law in North America and Europe