Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. The determination of non-U.S. law in a U.S. court proceeding is governed by Federal Rule of Civil Procedure 44.1. Rule 44.1 states:

    “A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, 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 shall be treated as a ruling on a question of law.”

  2. This rule is paralleled in federal criminal matters by Fed. R. Crim. P. 26.1 (see U.S. v. Schultz, 333 F.3d 393, 401 (2d Cir. 2003), cert. denied, 540 U.S. 1106 (2004)), which provides in full: “A party intending to raise an issue of non-U.S. law must provide the court and all parties with reasonable written notice. Issues of non-U.S. law are questions of law, but in deciding such issues a court may consider any relevant material or source – including testimony – without regard to the Federal Rules of Evidence.” The focus of the present Chapter, however, will be civil matters in federal court.
  3. Three central issues raised by FRCP 44.1 are discussed more fully below
    1. the type of notice to be provided by a litigant raising an issue of non-U.S. law;
    2. the tools available to a federal court in determining an issue of non-U.S. law; and
    3. the treatment of the determination of non-U.S. law as a question of law, rather than a question of fact.
  4. Current FRCP 44.1 made three departures from older pre-1966 precedent.
    1. Under the old rule, a determination of non-U.S. law was a question of fact, while under FRCP 44.1 a determination of non-U.S. law is a question of law.
    2. A court now has “freedom to engage in research [that] gives the court maximum flexibility about the material to be considered and the methodology to be employed in determining foreign law in a particular case.” 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2444 (West 2007).
    3. From the court’s perspective, issues of non-U.S. law are to be treated and analyzed in the same manner as issues of domestic law. See id.

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