This article presents an in-depth analysis of the latent methodological issues that are as much a cause of U.S. federal court avoidance of foreign law as are judicial difficulties in obtaining foreign legal materials and difficulties in understanding foreign legal orders and languages. It explores Rule 44.1’s inadvertent introduction of a civil-law method into a common-law framework, and the results that have ensued, including an incomplete transition of foreign law from being an issue of fact to becoming an issue of law. It addresses the ways in which courts obtain information about foreign law today, suggesting among others the methodological implications causing sometimes hidden and misunderstood frustration on the part of courts with foreign experts. It reviews and critiques suggestions for the use of court-appointed experts, and addresses principal areas in which federal courts encounter foreign law: forum non conveniens, and discovery, including both Section 1782 petitions where U.S. courts adjudicate discovery issues for foreign litigants in cases being heard by a foreign tribunal; and the 2018 European General Data Protection Regulation. The GDPR cases to date allow us to understand European perspectives on U.S. discovery from a background of European history. Although at a still inconclusive stage in U.S. discovery decision-making, current GDPR cases already permit some hypothesizing about potential future discovery developments in transnational litigation. This is because the digital era law’s vast reach suggests the probability that new cases are just as likely to have U.S. multinationals as they are to have foreign multinationals object to discovery requests as being in violation of the GDPR, for the first time reversing the traditional discovery pattern in transnational litigation of a U.S. federal court deciding whether to compel discovery against a foreign multinational in violation of its foreign national blocking statute. Courts may be hesitant to discount the GDPR’s importance in their balancing test if doing so will entail serious financial penalties against U.S. corporations. As transnational litigation continues to burgeon in the U.S. federal court system, and as U.S. federal court use of the Hague Evidence Convention has become a last resort since the Supreme Court Aérospatiale decision, further endorsed by the Restatement (Fourth) of Foreign Relations of the United States, understanding Rule 44.1 more clearly and trying to effectuate its goal of independent judicial determination of foreign law has become part of the everyday needs of adjudication and of harmonizing with the rest of the world.
Vivian G. Curran,
Federal Rule 44.1: Foreign Law in U.S. Courts Today,
Minnesota Journal of International Law
(forthcoming, pre-edited version)
Available at: https://scholarship.law.pitt.edu/fac_articles/321
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