Not Everything Is as Easy as a French Press: The Dangerous Reasoning of the Seventh Circuit on Proof of Foreign Law and a Possible Solution
Hall, Frederick Gaston, Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. PROOF or FOREIGN LAW IN U.S. COURTS III. FEDERAL RULE OF CIVIL PROCEDURE 44.1 IV. RULE 44.1 IN PRACTICE: BODUM USA, INC. V. LA CAFETIERE, INC. AT THE DISTRICT COURT V. BODUM ON APPEAL A. Chief Judge Easterbrook's Opinion B. Circuit Judge Posner's Opinion C. Circuit Judge Wood's Opinion VI. BODUM CONSIDERED: WHO IS RIGHT? VII. CAN COMPARATIVE LAW GUIDE US? A. Common Approaches B. New Developments in Australia VIII. A MULTILATERAL FRAMEWORK A. Current Conventions B. The Hague Conference C. Would It Work in the United States? 1. Administrability 2. The Treaty Power 3. The Anti-Commandeering Doctrine 4. Case-or-Controversy Requirement 5. Politics IX. CONCLUSION
Imagine that you are a probate or surrogate court judge for an average American jurisdiction. Normally, you are confronted with validating and probating wills or providing for intestature. But today you are confronted with a rare, strange, and confusing case. A Swiss citizen had moved to the United States and become a U.S. citizen. He died in your jurisdiction with a valid will disposing of his property, including some land in Switzerland. One of the, man's heirs, however, protests to you that the disposition of the land violates Swiss law, but that disposition would be valid for land located in your jurisdiction. Your jurisdiction follows the Restatement of Conflict of Laws (at the time, the First Restatement) in cases involving a conflict of laws, according to which the domestic law of the place where the land is located controls. (1) In this case, that rule would mandate that the domestic law of Switzerland would apply. So you have to find a way to familiarize yourself with the law of Switzerland on disposing of land in wills. You could do this in a number of ways: you could use the materials the disgruntled heir provided to do your own research, you could ask the parties to present experts to testify about what Swiss law provides, or you could ask the Swiss Embassy and hope they tell you.
Except this case is more complicated than that. You are very knowledgeable about conflicts rules--or the executor of the dead man's estate is--and you know that there is an exception in the Restatement to the general rule on questions of land, which requires that when there is a question of title to land the court must look not just at the substantive law of the jurisdiction where the land is located, but at the conflicts of laws rules of that jurisdiction. (2) In effect, this rule requires you to figure out which law a Swiss court would apply to this very case. For this question, the same choices for solving the problem are available to you--doing your own research, having experts testify, or asking Switzerland--but this is now a much more difficult problem.
This was the problem faced by Surrogate Frankenthaler of the New York County Surrogate's Court in 1950 in In re Schneider's Estate. (3) In that case, the surrogate listened to expert witnesses from both the administratrix of the estate and the protesting heir. (4) Naturally, the experts disagreed about what the Swiss conflicts of laws rule was in the case of a dual citizen domiciled in another jurisdiction disposing of Swiss property in his will. (5) After "carefully examin[ing] the authorities and materials submitted by the experts," Surrogate Frankenthaler decided that Swiss conflicts rules would treat land owned by a dual citizen domiciled abroad as being located in the person's domicile. (6) Since the deceased was a dual citizen domiciled in New York, the surrogate concluded that Swiss conflicts rules would apply New York law, and so he validated the will. (7)
The rule the surrogate was forced to use--renvoi, or looking to the conflicts of laws rules of another jurisdiction--has been criticized by many commentators over the years. Some have criticized it as incompatible with the First Restatement's underlying fundamental principle, vested rights. (8) Others have argued that applying renvoi abdicates a jurisdiction's sovereignty. (9) One commentator, however, specifically noted a problem with the application of renvoi by Surrogate Frankenthaler. Professor John Falconbridge suggested that the surrogate "was misinformed about, or misapprehended" Swiss conflicts rules. (10) In fact, he pointed to a statute specifically on point requiring that, for Swiss citizens domiciled abroad, the law of the Swiss canton of origin applies on questions of land. (11) This case demonstrates how difficult it can be to get a correct understanding of foreign law in a domestic context, highlighting just how important the method of proof of foreign law is to making the right call.
This Note will overview the history of proof of foreign law in U.S. courts and the current rule on proof of foreign law in federal courts. It will then discuss a case recently heard and decided by a panel of the Seventh Circuit in which the judges commented on how to apply the rule. (12) Finally, the Note will compare current U.S. practice with the practice of other countries, concluding that a new convention in the style of the Hague Evidence Convention (13) would serve as the best method possible of proving foreign law.
II. PROOF OF FOREIGN LAW IN U.S. COURTS
In a case involving conflict of laws, the phrase "foreign law" can have two distinct meanings in U.S. courts. The first is the law of any jurisdiction that is not the forum. Under this expansive definition, even the law of New Jersey is "foreign law" to a New York court. The second, more limited definition is simply the law of a jurisdiction that is not in the United States. Under the longstanding rule of English common law, the law of a foreign state must be pleaded in the complaint or answer and proven as a matter of fact to the court. (14) This position was embraced by U.S. common law jurists even with respect to the laws of other U.S. jurisdictions, as evidenced by the First Restatement of Conflict of Laws. (15) If foreign law was not pleaded and proved, the court could dismiss the case (16) or simply apply its own law to the dispute, (17) although the Supreme Court rejected presuming the law of civil law nations was the same as the law of the forum. (18) Parties could prove foreign law by expert testimony, relying on unwritten rules, statutes, or decisions by the judicial bodies of the foreign jurisdiction. (19)
Starting in the 1840s, however, and proceeding until 1936, some states began to loosen the traditional common law rules with respect to the laws of U.S. states. (20) In 1936, the National Conference of Commissioners on Uniform State Laws (now the Uniform Law Commission) and the American Bar Association approved the Uniform Judicial Notice of Foreign Law Act. (21) The Uniform Act required state courts to take judicial notice of other U.S. states' laws, meaning the court would investigate what the law was rather than requiring the parties to prove it as a fact. (22) Most states (23) have enacted the Uniform Act or the later Uniform Interstate and International Procedure Act, (24) which additionally authorized courts to take judicial notice of foreign nations' law, and more states have simply passed their own laws authorizing the taking of judicial notice. (25) The federal courts often followed the relevant procedural rule for the state in which the court was sitting, until the Federal Rules of Civil Procedure were amended to standardize federal practice. (26)
III. FEDERAL RULE OF CIVIL PROCEDURE 44.1
The current rule for federal courts on determining the law of foreign nations was established in 1966, in the second major revision of the Federal Rules of Civil Procedure. (27) Although the rule has undergone three revisions since 1906, the only substantive change was to add a provision limiting the applicability of the Federal Rules of Evidence. (28) Reflecting the developments in proving sister-states' laws by judicial notice, the current version of the Rule simply states that
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. (29)
The rule breaks down into three elements, two of which are very important at the trial level.
First, a party no longer must plead the applicability of foreign law at the outset of the suit. The advisory committee noted that in many cases the application of foreign law would not become apparent until the case was more fully developed after the pleading stages. (30) Therefore, the committee intended for the rule to require written notice to be given only at a reasonable time; the reasonableness would be determined by the stage of the case, the importance to the case of the relevant foreign law, and the reason why the foreign law was not previously raised. (31)
Second, while the court is not obligated to take judicial notice of foreign law, the court is no longer required to rely solely upon the evidence introduced by the parties. (32) Courts can still require the parties to present evidence on the foreign law, but they can also do their own independent research. (33) In fact, the advisory committee noted that there was no obligation to tell the parties of the court's intention to conduct its own research or even inform the parties if it discovered differing interpretations from the evidence introduced by the parties, although the court ought to so notify the parties. (34)
Finally, the Rule defines questions of foreign law as questions of law, not fact, that can be decided de novo on appeal, even though they are proven as facts.
What Rule 44.1 has done is give judges a breadth of options in a case requiring the law of a foreign nation. As William Ewald has written,
In the ordinary case, the judge will expect the attorneys to produce some sort of evidence supporting their view of the relevant foreign law. The evidence may come in the form of testimony in open court by an expert witness, or in an affidavit; it may come from an attorney accredited in the foreign legal system, or from a domestic scholar of comparative law. Some judges will press the parties to produce witnesses; others (using Rule 706(a) of the Federal Rules of Evidence) may appoint their own expert to assist with the determination of foreign law. As Rule 44.1 makes clear, the evidence need not be presented in open court; the judge is moreover free to accept or to reject the evidence, and also to undertake independent research. (35)
In addition, a federal court could send a letter rogatory to a foreign court, government, or embassy asking for information on foreign law. However, because responses are not obligatory, there is no guarantee that the court will receive a response. Given the wealth of possibilities, it is instructive to see how the rule works in practice.
IV. RULE 44.1 IN PRACTICE: BODUM USA, INC. V. LA CAFETIERE, INC. AT THE DISTRICT COURT
In 1991, Bodum Holding, with subsidiaries around the world, was about to buy all stock in Societe des Anciens Etablissements Martin S.A. ("Martin"), a French corporation. (36) Martin distributed the "Chambord," a French press coffee maker. (37) Martin's principal stockholder, Louis James de Viel Castel, had another business, Household Articles Ltd., which sold a French press coffee maker of similar design under the name "La Cafefiere"; Viel Castel wanted Household to be able to continue to sell its French press design. (38) Viel Castel and Bodum Holding's chief negotiated an agreement under which Bodum Holding purchased Martin's shares and the rights to distribute the "Chambord" design around the world. (39) The agreement, in part, provided that
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Publication information: Article title: Not Everything Is as Easy as a French Press: The Dangerous Reasoning of the Seventh Circuit on Proof of Foreign Law and a Possible Solution. Contributors: Hall, Frederick Gaston - Author. Journal title: Georgetown Journal of International Law. Volume: 43. Issue: 4 Publication date: Summer 2012. Page number: 1457+. © 2008 Georgetown University Law Center. COPYRIGHT 2012 Gale Group.
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