NOT SO RESPECTFUL CONSIDERATION: THE U.S. SUPREME COURT’S DEFERENCE OR LACK THEREOF TO FOREIGN GOVERNMENT STATEMENTS OF LAW

The amount of deference due foreign governments’ statements regarding the meaning of foreign law has long plagued U.S. courts. Courts have applied a variety of approaches in answering this question, including reliance on doctrines of international comity, respectful consideration, and Rule 44.1 of the Federal Rules of Civil Procedure. The U.S. Supreme Court recently attempted to provide additional guidance to lower courts and litigants in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., Ltd., where it created a new, five-factor test. However, application of this new test is likely to generate continued uncertainty and inconsistency in this area of law and could potentially lead to negative foreign policy consequences.

This article seeks to delineate the different scenarios in which this issue tends to arise and to suggest a more consistent approach to deciding these types of issues in the future that will be less likely to interfere with U.S. foreign relations.