International legal disputes in federal courts are increasing in number, especially in Miami, as overseas contracts routinely select U.S. courts as the forum of choice for litigation — even while the relationship between the parties remains governed by non-U.S. law.
A recent court case interpreting Rule 44.1 gives important guidance to litigators who intend to rely on foreign law experts.
Rule 44.1, entitled “Determining Foreign Law,” provides in full as follows:
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.
Rule 44.1 was enacted in 1966 for the express purpose of allowing judges to determine foreign law as a “question of law” — as opposed to a question of fact. This distinction is important because instead of having to wait until expert discovery — making it virtually impossible for judges to rule on a motion to dismiss — the rule encourages federal judges to determine the parameters of foreign law at the outset of the case.
Recently, the Ninth Circuit decided Fontbrune v. Wofy, No. 3:13-cv-05957 (Nov. 14, 2016), which involved an attempt to enforce a French judgment in California. The district court granted a motion to dismiss based on expert declarations that the judgment, called an “astreinte,” was penal, as opposed to compensatory, and therefore not enforceable under California’s Uniform Foreign-Court Monetary Judgment Recognition Act. The Ninth Circuit affirmed. “We disagree with de Fontbrune’s proposition that consideration of such materials outside the pleadings was error. Rather, under Rule 44.1’s broad mandate, foreign legal materials – including expert declarations on foreign law – can be considered in ruling on a motion to dismiss where foreign law provides the basis for the claim.”
The Eleventh Circuit has similarly held. See, e.g., Baloco ex rel. Tapia v. Drummond Co., Inc., 640 F.3d 1338, 1349 (11th Cir. 2011) (relying on an affidavit of a Colombian law expert submitted in opposition to a motion to dismiss to hold that Plaintiffs had sufficiently alleged their entitlement to proceed as wrongful death claimants under Colombian law).
Accordingly, Rule 44.1 makes it permissible for parties to go “beyond the four corners” of a complaint and submit foreign-law affidavits and depositions at the commencement of a case. It is no longer necessary to wait until after expert discovery. See Fontbrune (“Rule 44.1 thus unshackles courts and litigants from the evidentiary and procedural requirements that apply to factual determinations.”).
The takeaway for litigators is to consult and retain foreign-law experts at the beginning of a lawsuit and seek an early judicial determination of applicable foreign law. Of course, foreign-law experts typically set forth opinions in their native language. Their opinions, and relevant excerpts from foreign statutes and case law, must then be translated into English by a certified legal translator for submission to the Court.
If you are handling a lawsuit involving foreign-law, then Lingua Franca Translations can help.