With globalization and the proliferation of international commercial interaction, U.S. courts commonly encounter issues governed by the laws of other sovereigns. These encounters arise by virtue of private agreements or choice-of-law rules covering contractual relationships, cross-border conduct, tortuous acts, employment matters, intellectual property rights, and various other legal foundations. Because the substantive law applied in an international lawsuit can be outcome-determinative, it is important to accurately ascertain and determine the relevant law. In fact, the proper functioning of private international law in a domestic system is based on the appropriate application of law.
U.S. federal and state courts are presumed competent to apply foreign law. They also have a broad range of tools available to determine, interpret, and apply it. However, many courts hesitate to delve into territory comprised of unfamiliar legal rules and norms. Because most U.S. judges have neither intensively studied nor practiced foreign law, many fear that cases involving foreign law are extraordinarily difficult and time consuming. Other courts dread situations in which the litigants, their expert witnesses, and available legal materials paint conflicting pictures of the relevant foreign law. As such, judges may tend to shy away from foreign law issues or even look for ways to dismiss claims involving foreign law. In many instances, such fears are overblown and the resulting dismissals are unjustified.
To overcome ongoing hesitation and concerns, it is time for U.S. court systems to explore more efficient, effective, and precise ways of determining and applying foreign law. U.S. courts need to more openly embrace the application of foreign law as global commerce and interaction depend upon a stable, predictable, and fair system of dispute resolution. This article examines the tools currently available to U.S. courts to determine foreign law, and suggests how to better utilize such tools. It also advocates that U.S. court systems should seriously consider adopting certain innovative techniques to ensure the fair, objective, and expert application of foreign law. Such techniques include the formation of formal or informal judicial exchange agreements that enable U.S. courts to directly solicit the assistance of foreign courts and governments when addressing disputed issues or unsettled questions of foreign law. Enhanced and innovative techniques can not only help U.S. courts streamline the process of determining foreign law, but can also help increase accuracy when doing so.
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