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Teitz, Louise Ellen --- "The challenge of accommodating foreign law in domestic courts" [2019] ELECD 2914; in Ferrari, Franco; Fernandez Arroyo, P. Diego (eds), "Private International Law" (Edward Elgar Publishing, 2019) 434

Book Title: Private International Law

Editor(s): Ferrari, Franco; Fernández Arroyo, P. Diego

Publisher: Edward Elgar Publishing

Section: Chapter 16

Section Title: The challenge of accommodating foreign law in domestic courts

Author(s): Teitz, Louise Ellen

Number of pages: 29

Abstract/Description:

US courts and lawyers are used to considering ‘foreign law’ and making comparative law judgments about whose law to apply. As the number of cross-border cases in US courts continues to grow, so does the need to accommodate foreign law in domestic court conflicts and private international law determinations. When the foreign law is not that of a sister state or even a common-law jurisdiction, courts become intimidated. The process of determining and applying the law continues to create uncertainty and inconsistency in US case law, even after more than 50 years of a specific procedural law in federal court, Federal Rule of Civil Procedure 44.1, which has itself become a model for the majority of state court procedural rules. The procedure envisioned by the rule and the related Advisory Committee notes is a flexible, open-ended one that in effect requires the court to analyse the process of selecting the law to apply in much the way it does in a domestic case. What becomes problematic is: (1) how we ascertain the content of that foreign law; and (2) what happens when parties fail to indicate that foreign law should be applied. The former issue has received significant attention in US courts, including in the Supreme Court Animal Science v. Hebei – a unanimous decision about the level of deference to be accorded a foreign sovereign’s determination of its own law. This chapter considers four aspects of foreign law in domestic courts: (1) the issue of ascertaining the content of foreign law; (2) the important and growing counter-trend in state legislatures to limit or ban the use of foreign law in state courts through anti-foreign law or ‘anti-Sharia’ statutes; (3) the continuing trend of federal and state courts to find that the parties have either waived applying the foreign law or consented to forum law if they have not raised the issue of what law should apply; and (4) existing mechanisms for cooperation in determining foreign law and further movement for global instruments or cross-border solutions.