Some trial court judges are reluctant to apply foreign law or to enforce an international forum selection clause, but such decisions generally cannot survive appellate scrutiny. These decisions are becoming increasingly prevalent and may reflect the recent debate about whether and how American judges should apply to foreign law or defer to foreign proceedings. The “American Laws for American Courts” movement has gained momentum, at one extreme, while Justice Breyer argues, at the other, that foreign decisions can help interpret the Constitution itself. This post takes a brief look at the Sixth Circuit’s practice with applying foreign law.
Looking at the numbers, the Sixth Circuit’s docket has become increasingly international. Lexis searches show that the court’s transnational docket was minimal until the 1980s, but has exploded since the late 1990s—roughly half of the cases involving foreign law from the circuit’s entire history have occurred in the past fifteen years. A review of these case also shows that the circuit is taking increasing pains to understand and correctly apply foreign law. For example, in Murphy v. Lazarev, 589 Fed. Appx. 757, 766 (6th Cir. 2014), the court appears to have done its own research to find and apply provisions of the Russian Civil Code to resolve a copyright licensing dispute. The panel relied on Civil Rule 41’s statement that “[i]n determining foreign law, the court may consider any relevant material or source . . . whether or not submitted by a party.” Other decisions delve deeply into Japanese contract law, Servo Kinetics, Inc. v. Tokyo Precision Instruments Co., 475 F.3d 783, 790 (6th Cir. 2007), or rely on English decisions to interpret Romanian law, General Star Nat’l Ins. Co. v. Administratia Asigurarilor De Stat, 289 F.3d 434, 440 (6th Cir. 2002). The circuit also does not hesitate to find that other forums, such as Gibraltar, are not “ineffective or unfair” despite their differences with our system. See Wong v. PartyGaming, Ltd., 589 F.3d 821, 829 (6th Cir. 2009). Along similar lines, the Sixth Circuit has taken a conservative approach to foreign anti-suit injunctions, granting greater weight to international comity than those circuits that allow district courts to more easily enjoin foreign litigation. Compare Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349 (6th Cir. 1992), with E. & J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984 (9th Cir. 2006).
One common denominator in all of these cases is that the Sixth Circuit requires parties to submit more than just a photocopied page of a foreign statute. The panel in Tschira v. Willingham, 135 F.3d 1077, 1084 (6th Cir. 1998), chided the parties for not providing translated copies of the relevant German statutes, and then conducted its “own exploration of German law on the subject.” When foreign law will be a contested issue, the best practice is to submit a detailed expert opinion along with translations of the cases or statutes relied on by the expert.