Intersystemic Statutory Interpretation in Transnational Litigation

McLean, Nicholas M., The Yale Law Journal

In a recent article in the pages of this Journal, (1) Professor Abbe Gluck highlights an important phenomenon: federal courts do not generally apply state interpretive methodologies when construing state statutes. Gluck argues forcefully that this practice is incorrect as a doctrinal matter under Erie, and that the legal academy's failure to examine statutory interpretation from a self-consciously "intersystemic" perspective represents a significant gap in the literature. (2)

In this Comment, I extend Gluck's argument regarding the inconsistent and undertheorized nature of the federal approach to intersystemic statutory interpretation to a new context: federal courts' interpretation of the statutory law of foreign countries (3) in the course of transnational litigation. (4) I argue that when federal courts are called upon to interpret foreign statutes, they should make greater efforts to employ the interpretive approaches of the relevant foreign jurisdictions. This is particularly important because a number of foreign countries--like certain U.S. states, (5) but unlike the U.S. Supreme Court--accord the status of law (or, at least, law-like status) to methodologies of statutory interpretation. The practice of federal courts in this respect has been inconsistent, often disregarding key aspects of foreign interpretive methodology. Judicial practice is thus in tension with the policies that militate in favor of the use of foreign law in transnational litigation. (6)

I. FOREIGN LAW IN AMERICAN COURTS: CURRENT PRACTICE

Amid the globalizing forces of the world economy, federal courts are often called upon to apply and to interpret the laws of foreign countries. (7) A court sitting in diversity might apply a state choice-of-law rule that requires the court to apply the tort law of a foreign nation. (8) In a contract dispute, a federal court might apply foreign substantive law pursuant to an international agreement's choice-of-law clause. (9) In the realm of corporate law, a court might find, based on an application of the internal affairs doctrine, (10) that a foreign nation's procedural requirements govern a shareholder derivative suit. (11) Even the direct application of certain federal statutes may require U.S. courts to interpret foreign law: for example, under the anti-bribery Foreign Corrupt Practices Act, (12) a defendant may present the affirmative defense that an allegedly improper payment to a foreign official was "lawful under the written laws and regulations of the foreign official's ... country." (13) A federal court might also be called upon to review federal agencies' interpretations of foreign law in the context of administrative adjudication. (14) As a general matter, various policy arguments militating in favor of applying foreign law in litigation in domestic forums have been advanced, including international comity, (15) reciprocity, (16) predictability, (17) fairness, (18) and discouragement of forum shopping. (19)

In the United States, the process by which federal courts interpret foreign law is set out in Rule 44.1 of the Federal Rules of Civil Procedure:

   A party who intends to raise an issue about a foreign country's
   law must give notice by a pleading or other writing. 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. (20)

Under the current procedural regime, which in some respects parallels the "all available data" test employed by federal courts when interpreting state law in the Erie context, (21) judges called upon to interpret foreign statutes have relied on a wide variety of sources. These sources have included foreign statutory text, (22) foreign case law, (23) and secondary materials. (24) In contrast to the state law determination process, however, expert testimony has also been a widely employed method of determining the content of foreign law; indeed, many courts regard expert testimony as the primary method for understanding foreign law. (25) In addition to basing a determination on the pleadings and evidence presented by the parties to the litigation, a court may also determine a question of foreign law on the basis of its own research (although it is not required to do so under Rule 44.1). (26)

II. TRANSNATIONAL INTERSYSTEMIC STATUTORY INTERPRETATION

When federal courts are called upon to construe foreign statutes, they employ highly inconsistent interpretive practices. Just as some federal courts in the domestic Erie context seek to pair state statutes with the relevant state interpretive methodologies, (27) some federal courts have made clear efforts to adhere to the interpretive rules of the relevant foreign jurisdiction. (28) At other times, however, courts appear simply to twin the text of a foreign statute with the principles of statutory interpretation commonly relied on by federal courts when interpreting domestic law.

For example, in United States v. …

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Publication information: Article title: Intersystemic Statutory Interpretation in Transnational Litigation. Contributors: McLean, Nicholas M. - Author. Journal title: The Yale Law Journal. Volume: 122. Issue: 1 Publication date: October 2012. Page number: 303+. © 2009 Yale University, School of Law. COPYRIGHT 2012 Gale Group.

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