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Latham & Watkins Antitrust & Competit ion Practice
June 29, 2018 | Number
2339
SCOTUS: US Courts Not Bound by Foreign Government’s
Statement of Its Laws
The Supreme Court has ruled US federal courts should carefully consider a foreign
government’s interpretation of its own domestic laws, but are not required to give it
conclusive effect.
Key Points
• The Supreme Court’s “respectful cons ideration” standard means foreign go vernments will likely
face uncertainty as to how their dom estic laws will be interpreted by US c ourts.
• Lower courts’ future application of the Supreme Court’s five factors for c onsideration will provide
guidance on how foreign governments can best position and support their interpretations.
• The parties’ evidence in support of and a gainst a foreign government’s subm itted interpretation of
its domestic laws may be given substantial weight in determining the proper interpretation under
US law.
Supreme Court’s Decision
The United States Supreme Court’s opinion in Animal Science Products Inc. et al. v. Hebei Welcome
Pharmaceutical Co. Ltd. et al., No. 16-1220, s heds light on the level of deference US courts should give
to a foreign government’s interpretati on of its own laws or regulations. T he unanimous decision, delivered
by Justice Ginsburg on June 14, 2018, holds that when a “foreign governm ent whose law is in contention
submits an official statement on the m eaning and interpretation of its dom estic law,” a US federal court
“should accord respectful considerati on to a foreign government’s subm ission, but is not bound to accord
conclusive effect to the foreign go vernment’s statements.” 1
The opinion reverses the Second Circ uit’s decision in the same action, wh ich held that US courts are
“bound to defer” to a foreign governm ent’s interpretation of its dom estic law, as long as it is “reasonable
under the circumstances presented.” 2 Applying this rule, the Second Circuit gave full weight and
deference to an amicus curiae brief filed by the Ministry of Comm erce of the People’s Republic of China ’s
(MOFCOM), which interpreted the requirem ents of a Chinese export law. In do ing so, the Second Circuit
vacated the judgment against defend ant Hebei (a Chinese exporter) and rev ersed the district court’s
order denying Hebei’s motion to dism iss.
The Justices disagreed with the “unyielding rul e” adopted by the Second Circuit a nd found it to be
inconsistent with the plain language of Federal Rule of Civil Procedure 44. 1.3 Rule 44.1 states that a
