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Taking Judicial Notice and Proving Foreign Law in American Courts

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Written by guest bloggers Regina Fullana Pitarch and Michael J. Dale[1]

Suppose three university graduates and good friends from Florida, Italy, and Catalonia in Spain are employed together in the United States. One day, they decided to vacation in Barcelona and, amazed by the place, decided to purchase a vacation home. After negotiation, a real estate contract was drafted in Spain in Spanish and translated into English. The ownership of the house was divided as a comunitat ordinaria indivisa, or ordinary undivided community.  Three years after the purchase, the American owner decided to sell the home and the other two owners refused.

As a result, a case was filed in Florida. The case went to court in Florida, and all parties entered general appearances (this hypothetical assumes no jurisdictional issues). For the court to decide the case, the respondents requested that the Florida court recognize and apply Catalan law. However, the comunitat ordinaria indivisa is a legal institution with its own legal intricacy. Thus, the court had to be properly informed as to Catalan law to resolve the case.

This blog post discusses the procedure by which American courts recognize and apply foreign nation law.

To apply foreign law, it is not necessary for courts to master foreign law. In the modern era, foreign law and legal systems have become much easier to research and understand, particularly with countries commonly engaged in international commerce.[2] Nonetheless, judicial notice is required to enable the judge to apply foreign law in a case.  In the United States, judicial notice is established pursuant to Rule 44.1 of the Federal Rules of Civil Procedure (F.R.C.P.):

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.

States, such as Florida, use a rule similar to F.R.C.P. 44.1 that provides the same uniform mechanism as Rule 44.1 in federal court. The provision gives freedom to the parties regarding the time when the notice must be given.[3] The usual means to do so is by written notice, either in the initial proceedings or by later written notice. Thus, in the hypothetical situation above, either party may file written notice with the court providing that Catalan real estate law must be applied because either it was agreed to among the parties stated in the contract in a choice of law clause or, in the absence of a clause, employing the choice of law rules of the State.

Because the contract was performed in Catalonia, because the property is located therein, and because the parties agreed to use Catalan law, the court will use Catalan law.

Timing of Notice

The parties have time until trial to give reasonable notice of the application of Catalan law. Nonetheless, notification both to the parties and the court is required to avoid unfair surprises.[4] Rule 44.1 does not require the parties to include the substance of the applicable law applicable at the time of filing the notice.

Substantive Law to Be Applied

The court does not need to wait for the parties to submit information related with foreign law. Courts have the authority to conduct their own research, sua sponte, on the meaning of the law with which they will have to resolve the case. In doing so, the court may request the parties to aid it by bringing materials and all sources of information that will be necessary.[5] The court may also engage in research without giving formal notice to the parties. However, in general, the court should give the parties an opportunity to analyze and provide counterpoints and new points upon which the court proposes to rely.[6]

The parties have wide discretion to use any kind of materials, from expert testimony to journals, passing through treatises and other sort of materials, to provide the substantive law. They may even use materials that would not otherwise be admissible under federal or state Rules of Evidence. In this case, the legal concept of comunitat ordinaria indivisa, regarding what it means and how it is to be applied, is unknown to the Florida court.

In our hypothetical, the most efficient way to prove the relevant law is through expert witnesses testimony because it will provide the opportunity to the attorneys and the court to enquire. An expert is someone who “has studied the foreign law, has practiced law in the country of its origin, and can translate and interpret it in the language of the American attorney.”[7] Declarations, depositions, or live testimony are the ways the expert will bring her knowledge to the court.

Some judges dislike the expert testimony for proving foreign law because they are paid and selected “on the basis of the convergence of their views with the litigating position of the client, or their willingness to support the views urged upon them by the client.”[8] Therefore, in practice, some judges may prefer to rely upon other sources such as written materials.

Why Use Expert Testimony to Prove Foreign Law

Litigants should bring live expert testimony to the court to prove Catalan law or other foreign law. As stated in Bodum, USA, Inc. v. La Cafetiere Inc., 621 F.3d 624, 638 (7th Cir. 2010), “the U.S. reader/court is likely miss nuances in the foreign law, failed to appreciate the way in which one branch of the other country’s law interacts with another or to assume erroneously that the foreign law mirrors U.S. law when it does not.”

Additionally, expert testimony has highly probative value because the expert witness is able to provide the court with information about the sources of law, hierarchy of law, legal interpretation, and other matters not readily ascertainable or necessarily apparent on the face of foreign legal materials.[9]

In conclusion, by the resource of judicial notice, parties in litigation bring knowledge of foreign law to American courts to enable them to solve any kind of litigation by way of applying any kind of law from around the world.

The Problem of Language When Applying Foreign Law

The use of experts applying foreign law is not as simple as it may seem at a first glance. For the court to be able to apply the law, that law has to be translated into English. This is a complex process involving not only a mere word translation but an in-depth interpretation of the meaning of the law and the intent by which it was created. This process and the problems involved are often underestimated.[10] The translation is often done by scholars and linguists who, while professional, do not normally have significant knowledge of law.[11]

The translation process takes two steps. First, the translator requires a deep knowledge and familiarity with the culture in which the law was created, knowledge that would provide her with the capability of associating the meaning of the words within each specific context.[12] Second, the translator must find some equivalence in meaning between the two familiar contexts and languages, a process of “filling the gaps” because almost always, even if the legal systems have familiar contexts and languages, they never exactly “map” onto one another.

Thus, as one author has noted, “An identical provision of the law of two countries may have wholly different moral backgrounds, may have been brought about by the interplay of wholly different forces, and hence the similarity may be due to the purest coincidence.”[13]

Additionally, the translation requires knowledge of the historical context in which the law was created because a phrase may have different meaning depending on the historical context in which it was made.[14] Finally, ambiguity in the law makes the translation processes even more challenging.[15]

Conclusion

The task of deciphering the meaning of a foreign country’s law can often be daunting.  Judges who are called upon to make these determinations may have little or no legal expertise about the foreign country in question, making it difficult to render accurate decisions.[16]  And judges are required to interpret foreign law applicable to the particular case at hand.[17]

Thus, judges may receive materials and information provided by the parties as well as testimony by expert witnesses as well as through their own research. Counsel should be compelled to demonstrate to the court that the foreign law is not similar to domestic law. Further, judges tend to give naive “plain” meanings to foreign provisions where they should not. Finally, unconsciously, readers tend to “find” what they seek, in a self-deceiving process of “wish-fulfillment.”[18]

In sum, the final key for an accurate legal interpretation and application of foreign law requires judges and practitioners to research and understand the foreign law and its “institutional values,” history, philosophy, social circumstances, and meaning of when the law was enacted. Sources like expert testimony or agreements between legal systems make this daunting process easier to lawyers and courts, therefore providing greater justice.


[1] Regina Fullana Pitarch is a Spanish attorney, a graduate of the University of Barcelona, and a dual degree student at Nova Southeastern University Law School. She is a research assistant to Professor Michael J. Dale.

[2] Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 628 (7th Cir. 2010).

[3]  Matthew J. Wilson, Demystifying the determination of foreign law in U.S. courts: Opening the door to a greater global understanding, West Forest L.Rev. 887, 901 (2012).

[4] Uniform Judicial Notice of Foreign Law Act § 4 IC 34-38-4-4.

[5] Uniform Judicial Notice of Foreign Law Act § 3 IC 34-38-4-2.

[6] Schlesinger, Comparative Law 142 (2d ed. 1959); Wyzanski, A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1296 (1952).

[7] 126. C.C. Bjorklund, Law of Foreign Jurisdiction, in 21 Am. Jur. Proof of Facts 2d 1, § 13 n. 25 (2010).

[8] Bodum, USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 634 (7th Cir. 2010)

[9] Wilson, supra n. 2, at 904.

[10] See, e.g., Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law, 39 Am. J. Comp. L. 1, 20 (1991) (“The complexity of the problems involved in legal translation makes the carelessness with which they are approached seem incredible.”).

[11] John C. McKenzie & Antonio R. Sarabia, The Pleading and Proof of Alien Law, 30 Tul. L. Rev. 353, 368, 373 (1956).

[12] Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165, 1194-96 (1993).

[13] Pierre Lepaulle, Function of Comparative Law, 35 Harv. L. Rev. 838, 853 (1922).

[14]Andrew N. Adler, Translating and Interpreting Foreign Statutes, 19 Mich. J. Int’l L. 37, 50 (1997).

[15] Charles Szladits, Translations of Foreign Civil and Commercial Codes, 3 Am. J. Comp. L. 67, 49 (1954).

[16Doug M. Keller, Interpreting Foreign Law through an Erie Lens: A critical look at United States v. MCNAB, 40 Tex. Int’l L.J. 157, 164 (2004).

[17] Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 535 (1983).

[18] N. Adler, Supra note 17, at 50.

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