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. How should notice of non-U.S. law be given?
    1. The notice raising an issue of non-U.S. law should be written.
      1. “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.” FRCP 44.1 (emphasis added).
      2. “The first sentence of Rule 44.1 indicates that the party invoking non-U.S. law bears at least the modest burden of notifying an opposing party and the court that non-U.S. law will be at issue.” In re Ishihara Chem. Co., Ltd., 121 F. Supp. 2d 209, 216 (E.D.N.Y. 2000), vacated on other grounds, 251 F.3d 120 (2d Cir. 2001).
    2. The written notice provision of Rule 44.1 applies to claims as well as defenses.
      1. “Notice normally will be given by the party whose claim or defense is based on foreign law.” See 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2443 (West 2007).
      2. “[T]he responsibility for demonstrating the content of foreign law rests with … defendants who wish to use it to defeat a claim.” Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166, 189 (3d Cir. 1995) (en banc).
    3. The written notice does not need to be fact-specific.
      1. “The function of the notice is not to spell out the precise contents of foreign law but rather to inform the court and litigants that it is relevant to the lawsuit. Thus a high degree of specificity is not required.” Rationis Enters. Inc. of Panama v. Hyundai Mipo Dockyard Co., Ltd., 426 F.3d 580, 586 (2d Cir. 2005), cert. denied, 127 S. Ct. 294 (2006) (quoting 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2443 (2d ed. 1994)).
      2. “It is sufficient if the notice ‘specif[ies] the segment of the controversy thought to be governed by foreign law and identif[ies] the country whose law is claimed to control.’” Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 399396, at *7 (S.D.N.Y. Feb. 21, 2006) (quoting 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2443 (2d ed. 1994)).
    4. But it has been found to be insufficient to give notice that is too general and does not provide your opponent with adequate notice of the non-U.S. law believed to be at issue in the case. “General references to ‘international copyrights’ and ‘sale in various territories of the world,’ without any greater jurisdictional specificity does [sic] not provide the defendants with adequate notice of the foreign law that the plaintiff asserts is applicable to this case.” Vapic Music Publ’g, Inc. v. Tuff ‘N’ Rumble Mgmt., 2000 WL 1006257, at *7 (S.D.N.Y. July 19, 2000).
    5. Practice Tip: Failure to give written notice of a non-U.S. law issue can be deemed by a court as acquiescence to the application of the local law of the forum in question. So for example:
      1. District court did not need to apply Lebanese law because the issue was not raised before it by the parties. Baghdady v. Baghdady, 57 Fed. Appx. 484, 485 (2d Cir. 2003).
      2. Court denied defendant's application to have English law considered for determining prejudgment interest because defendant raised issue after judgment was issued and should have raised issue earlier in the proceedings and not after trial. DP Aviation v. Smiths Indus. Aerospace and Defense Systems Ltd., 268 F.3d 829, 845 (9th Cir. 2001).
  2. When should a notice of non-U.S. law be raised?
    1. Notice of an issue of non-U.S. law may be raised later than the pleadings so long as it is reasonable. Fed. R. Civ. P. 44.1 advisory committee's note.
    2. Notice of the type of non-U.S. law can change in the middle of the proceedings so long as notice is reasonable. See, e.g., HSH Nordbank v. M/V AHMETBEY, 2004 WL 911789, at *1 n.1 (E.D. Pa. Mar. 29, 2004) (earlier notice of intent to use Turkish law did not waive ability to later give notice of intent to use German law).
    3. Factors to be considered in determining whether notice is “reasonable” include “[t]he stage which the case has reached at the time of the notice, the reason proffered by the party for his failure to give earlier notice, and the importance to the case as a whole of the issue of foreign law sought to be raised[.]” Id.
    4. Practice Tip: Courts often hold that, if possible, notice should be given early in the proceedings and certainly by the pretrial order:

      “Absent extenuating circumstances, notice of issues of foreign law that reasonably would be expected to be part of the proceedings should be provided in the pretrial conference and contentions about applicability of foreign law should be incorporated in the pretrial order. This gives parties ample opportunity to marshal resources pertinent to foreign law, which normally will not be as well known as domestic law to parties and courts.… Interests of judicial economy favor early notice so that the parties may plan and present argument on any issues pertinent to an application of foreign law.” DP Aviation, 268 F.3d at 848.

    5. Courts have approved of notice of non-U.S. law at the following stages of the proceedings:
      1. notice in a complaint as to the particular claims purportedly governed by non-U.S. law. Phoenix Four, 2006 WL 399396, at *8;
      2. alternative pleading of applicability of English, Swedish, Korean, or Panamanian law in a mass maritime tort case. Rationis Enters., 426 F.3d at 586;
      3. written notice proffered during a pretrial conference. Ayres Aviation Holding, Inc. v. Davidova, 2004 WL 3777539, at *1 (M.D. Ga. Mar. 29, 2004);
      4. declaration and/or memorandum of law in conjunction with a pretrial motion raising particular aspects of foreign law:
        1. motion to vacate order of attachment. Cunard S.S. Co. Ltd. v. Salen Reefer Servs. AB, 773 F.2d 452, 461 (2d Cir. 1985);
        2. motion to dismiss. Krish v. Balasubramaniam, 2006 WL 2884794, at *3 (E.D. Ca. Oct. 10, 2006);
        3. motion in limine seeking order recognizing certain principles of foreign law as controlling. Tome Engenharia E. Transportes, Ltd. v. Malk, 2003 WL 21372466, at *5 (N.D. Ill. June 21, 2003);
        4. motion for summary judgment. Canadian Imperial Bank of Commerce v. Saxony Carpet Co., Inc., 899 F. Supp. 1248, 1253 (S.D.N.Y. 1995).
      5. Notice of non-U.S. law in motion for summary judgment is considered sufficient notice. Hidden Brook Air, Inc. v. Thabet Aviation Int’l Inc., 241 F. Supp. 2d 246, 277 (S.D.N.Y. 2002).
      6. Court permitted notice of non-U.S. law in response to summary judgment motion when other party had chance to respond and where earlier court decision had referenced foreign law. Torah Soft Ltd. v. Drosnin, 224 F. Supp. 2d 704, 718-19 (S.D.N.Y. 2002) (citing cases).
      7. A defendant raising non-U.S. law issue on reply to motion to dismiss constituted reasonable notice; according to the court (a) "[t]he notice requirement falls considerably short of a requirement that, in order to survive a Rule 12(b)(6) motion, a plaintiff must allege the identity and substance of the applicable law,” and (b) “[in cases] where the applicability of foreign law is not obvious at the outset and is a matter of some contention among the parties, the ‘reasonable written notice,’ if required at all under Rule 44.1, may come at any time sufficient to give the court and the defendants adequate notice of the need to research the foreign rules.” Hodson v. A.H. Robins Co., Inc., 528 F. Supp. 809, 824 (E.D. Va. 1981), aff’d, 715 F.2d 142 (4th Cir. 1983).
      8. The court ruled that notice given in a summary judgment motion filed after the case was remanded from the Fifth Circuit Court of Appeals was reasonable notice. The court explained that the factors to be considered were “[t]he stage which the case had reached at the time of the notice, the reason proffered by the party for his failure to give earlier notice, and the importance to the case as was a whole of the issue of foreign law sought to be raised. ” The court explained that “[o]n remand, the discovery process may be reopened … to satisfy the appellate court’s specific mandate. As a result, there is no danger that a party opposing the use of foreign law will not have sufficient time to research the issue and, thus, be unfairly surprised. In effect, the dangers Rule 44.1 was enacted to protect against are not at issue.” See, e.g., Thyssen Steel Co. v. M/V Kavo Yerakas, 911 F. Supp. 263, 267 (S.D. Tex. 1996).
      9. Notice that non-U.S. law bars discovery given on motion to compel is reasonable. Strauss v. Credit Lyonnais, S.A., 2007 WL 1558567, at *6 (E.D.N.Y. May 25, 2007).
      10. Notice given in responses to document requests and requests for admissions and related interrogatories is deemed sufficient. Weiss v. Nat’l Westminster Bank, PLC, 2007 WL 1460933, at *5 (E.D.N.Y. May 14, 2007).
    6. Courts found notice unreasonable when provided at the following stages in the proceedings:
      1. Defendant waived objection to choice-of-law by failing to raise issue of non-U.S. law until cross-motion for reconsideration and re-argument after summary judgment. Whirlpool Fin. Corp. v. Sevaux, 96 F.3d 216, 221 (7th Cir. 1996).
      2. Court declined to consider issue of non-U.S. law in determining the motion for reconsideration after the denial of summary judgment because it was raised for first time in the motion for reconsideration. The court noted the order on reconsideration “is subject to the court’s further consideration of the possible application of Japan law, if such issues are raised by the parties in the future.” Sports Shinko Co., Ltd. v. QK Hotel LLC, 2006 WL 2043088, at *3 (D. Haw. July 19, 2006).
      3. Notice of intent to raise non-U.S. law made in motion to dismiss reply papers did not constitute reasonable notice. Local 875 I.B.T. Pension Fund v. Pollack, 992 F. Supp. 545, 559 (E.D.N.Y. 1998).
      4. Notice of intent to prove non-U.S. law raised in motion for reconsideration of decision on motion to dismiss did not constitute reasonable notice. Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995).
      5. Appellate court would not consider non-U.S. law when issue was not raised with the trial court and no manifest injustice was claimed. American Int’l Trading Corp. v. Petroleos Mexicanos, 835 F.2d 536, 540 & n.14 (5th Cir. 1987).
      6. Issues of non-U.S. law raised on appeal are generally not considered reasonable. Failure to have raised the issue before the district court deprives the appellate court of a proper record for review. In re Magnetic Audiotape Antitrust Lit’g, 334 F.3d 204, 209 (2d Cir. 2003).
      7. As the Ninth Circuit Court of Appeals has explained, “[although] there may be some circumstances in which consideration of foreign law may be appropriate after trial and on appeal … , that is not the normal practice consistent with Rule 44.1’s requirement of reasonable notice.” DP Aviation, 268 F.3d at 848.

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