A Primer on Foreign State Compulsion

Foreign state compulsion (also called foreign sovereign compulsion) is a doctrine allowing a U.S. court to excuse violations of U.S. law or moderate the sanctions imposed for such violations on the ground that they are compelled by foreign law. The doctrine arises most often when foreign law blocks compliance with U.S. discovery requests and in certain substantive areas like antitrust law. As Section 442 of the Restatement (Fourth) of Foreign Relations Law explains, foreign state compulsion generally requires the risk of severe sanctions under foreign law and a good faith effort by the person in question to avoid the conflict.

When the Doctrine Applies

No general doctrine of international law requires a state to excuse compliance with its own law because of conflict with the law of another country. But being caught between the conflicting demands of two countries can put parties in a difficult position, and U.S. law may moderate such conflicts by recognizing a defense of foreign state compulsion. In Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers (1958), the U.S. Supreme Court suggested that the doctrine may sometimes be required by the Due Process Clauses of the Constitution.

The first question is whether the U.S. statute, regulation, or rule in question permits the inference of a foreign state compulsion defense. Congress has expressly incorporated such a defense in some statutes. For example, when Congress amended Title VII of the 1964 Civil Rights Act to apply extraterritorially, it created an exception for cases where complying with Title VII could cause the employer to violate the law of the country where the workplace is located.

Some laws have been read to incorporate a foreign state compulsion defense although their texts do not address the question. For example, U.S. courts and the Department of Justice (in Section 4.2.2. of the 2017 Antitrust Guidelines for International Cooperation) have recognized foreign state compulsion as a defense to liability under U.S. antitrust laws.

Other U.S. laws, by contrast, are specifically designed to counter foreign laws. For example, the U.S. Anti-Boycott Act is specifically intended to oppose foreign boycotts of countries (like Israel) that are friendly to the United States. Although the Commerce Department has created a limited exception for compliance with local law (15 U.S.C. § 760.3(g)-(i)), it would be inconsistent with the purpose of the statute for courts to recognize any broader defense of foreign state compulsion.

In Rogers, the Supreme Court read Federal Rule of Civil Procedure 37 (which authorizes sanctions for failure to comply with discovery orders) to allow a defense of foreign sovereign compulsion. The Court held that dismissal of the complaint was too severe a sanction for failing to comply with a discovery order when the person in question faced serious consequences under foreign law if it complied with the order and had acted in good faith.

The Foreign Sanctions Requirement

To excuse compliance with U.S. law, the likely sanctions under foreign law must be severe. In Rogers, the Supreme Court concluded that the likelihood of criminal prosecution foreign violating foreign law “constitutes a weighty excuse for non-production.” Lower courts have held that civil sanctions—for example, the loss of a business license—might be sufficient.

Even if the potential sanction is severe, courts must consider the likelihood of that sanction. In Linde v. Arab Bank (2013), the Second Circuit held that the bank resisting discovery had not shown that a severe sanction was likely when the record showed the bank had complied with discovery requests in other cases and had not been prosecuted for violating foreign bank secrecy laws. Courts will also consider whether the party in question could take reasonable steps to avoid or mitigate the consequences under foreign law.

The Good Faith Requirement

The doctrine of foreign state compulsion also requires that the person in question have acted in good faith to avoid the conflict. In Rogers, the Supreme Court allowed a Swiss company to claim foreign state compulsion where the company “had not been in collusion with the Swiss authorities to block inspection” and “had in good faith made diligent efforts to execute the production order.”

Lower courts have held that the burden is on the party claiming compulsion to make an “affirmative showing” of good faith. In Richmark Corp. v. Timber Falling Consultants (1992), the Ninth Circuit held that a Chinese company had failed to meet this requirement where it “fought disclosure for several months before raising the foreign law problem” and then failed to seek permission from the government to disclose the information.

Effect of Foreign State Compulsion

If a court finds that the doctrine of foreign state compulsion applies, that the person in question appears likely to suffer severe consequences for failing to comply with foreign law, and that the person in question as acted in good faith, then the court must consider how far to excuse compliance with U.S. law.

Although the Supreme Court in Rogers held that dismissing the complaint was too harsh a sanction for failing to comply with a discovery order, the district court might draw adverse inferences from the failure to disclose. As the Second Circuit put it in Linde, courts much consider “the extent to which the sanctions are necessary to restore the evidentiary balance upset by incomplete production.” Another court has held that when nondisclosure has not caused any harm, no sanction may be imposed.

Conclusion

Like the act of state doctrine, the doctrine of foreign state compulsion is a merits question rather than a question of jurisdiction. But unlike the act of state doctrine, it is not a preemptive doctrine of federal common law. As the Restatement (Fourth) notes, the availability of foreign state compulsion under U.S. state law is a question of state law.