New Article on the Determination and Treatment of Foreign Law in U.S. Courts

Professor Chris Whytock, who is an Associate Reporter for the ALI’s Restatement (Third) of Conflict of Laws, has just posted an article on SSRN outlining the Restatement’s approach to determining the content and meaning of foreign law. As he notes, this is a perennial challenge in transnational as well as multistate litigation. Like choice-of-law rules, the rules governing the determination of foreign law vary from state to state; in this area, federal courts follow their own rules.

Here is the abstract:

Multistate litigation involves parties or events with connections to more than one state. The “states” with these connections may include not only U.S. states, but also American Indian tribes or, in transnational litigation, foreign countries. These multistate connections raise choice-of-law questions. Specifically, should the court apply the law of the forum state (forum law) or the law of another state with connections to the litigation (foreign law) to resolve the legal issues before it? To answer choice-of-law questions, a court applies the forum state’s choice-of-law rules.

But when the forum state’s choice-of-law rules indicate that foreign law governs an issue, how should the court determine the content and meaning of that law? What are the procedures for making those determinations? What are the roles of the court, the parties, and other actors in the process of determining foreign law? To answer those questions, courts apply separate rules governing the determination of foreign law. Today, those rules—like choice-of-law rules—vary substantially across U.S. states. In addition, those rules are incomplete, leaving both courts and litigants without comprehensive guidance.

Drawing on state and federal caselaw, the American Law Institute’s Third Restatement of Conflict of Laws includes new rules governing the determination of foreign law that aim to be clearer and more comprehensive than existing rules and, perhaps more ambitiously, to serve as a focal point for a more harmonized approach among U.S. states. This Article introduces these new rules, discussing the principles underlying the Third Restatement’s approach and then explaining the Third Restatement’s rules governing each of the three steps of the process of determining foreign law: notice of intent to raise an issue about foreign law, obtaining information about the content and meaning of foreign law, and the court’s determination of the content and meaning of foreign law.

Whytock begins by identifying three guiding principles: issues about foreign law are legal, not factual; the determination of foreign law should be correct; and the determination of foreign law should be efficient. He then outlines the three-step process, animated by those principles, that is laid out in the relevant sections of the Restatement. Step one is giving notice of intent to raise an issue about foreign law (Section 5.06). Step two is obtaining information about foreign law (Section 5.07). And step three is the court’s determination of foreign law (Section 5.08).

The article, which builds on a comprehensive analysis of relevant literature and case law, is a definitive guide to the new Restatement’s approach.