When a foreign country's law is relevant to a case in U.S. federal court and the foreign country files an official statement about the meaning of its law, how should U.S. courts treat the foreign government's representations? In Animal Science Products, Inc. v. Hebei Welcome Pharmaceuticals Co., the Supreme Court of the United States held that “[a] federal court should accord respectful consideration to a foreign government's submission, but is not bound to accord conclusive effect to the foreign government's statements.”Footnote ¹ In so doing, the Supreme Court settled a disagreement between the courts of appeals and reversed an opinion of the Second Circuit that had given conclusive effect to the Chinese government's representations about its domestic law. Animal Science Products provides important guidance to federal courts faced with increasingly frequent filings by foreign governments, but it leaves unresolved significant questions about deference to foreign sovereign amici and preserves existing debates about the nature of “respectful consideration.”

Animal Science Products stems from a dispute over whether Chinese manufacturers of vitamin C engaged in anticompetitive behavior in violation of the Sherman Act.Footnote ² U.S.-based vitamin C purchasers filed a class action against Chinese vitamin C manufacturers, alleging that the manufacturers “formed a cartel ‘facilitated by the efforts of’” a trade association, the Chamber of Commerce of Medicines and Health Products Importers and Exporters, in order “to fix the price and quantity of vitamin C exported to the United States from China” (p. 1870). The defendants argued that Chinese law required their behavior, and therefore, that they were immune from antitrust liability due to the act of state doctrine, foreign sovereign compulsion defense, and international comity (id.).

In an amicus brief filed with the district court, the Chinese Ministry of Commerce agreed.Footnote ³ China's brief explained that the Chamber acts under the government's supervision and “plays a central role in regulating China's vitamin C industry,” and that the alleged price-fixing is “a regulatory pricing regime mandated by the government of China.”Footnote ⁴

The U.S. plaintiffs countered that Chinese law did not compel price-fixing. They argued that the Ministry had failed to identify a law or regulation that compelled price-fixing, pointed to Chamber records calling the pricing agreements “self-regulated” and voluntary, and provided an expert declaration disputing that Chinese law required the price-fixing conduct.Footnote ⁵ The defendant companies and China, on the other hand, argued that China's representations that Chinese law compelled the defendants’ conduct were entitled to dispositive effect.Footnote ⁶

In denying the defendants’ motion to dismiss, the district court declined to give China's brief dispositive weight. Instead, the court held that the brief was “entitled to substantial deference, but will not be taken as conclusive evidence of compulsion,” especially where documentary evidence appeared to contradict China's claim.Footnote ⁷ After additional discovery, the district court denied the defendants’ motion for summary judgment.Footnote ⁸ Citing Federal Rule of Civil Procedure 44.1, which provides that “[i]n 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,”Footnote ⁹ the district court “respectfully decline[d] to defer to the Ministry's interpretation of Chinese law.”Footnote ¹⁰ Relying instead on “more traditional sources of foreign law,” including “governmental directives” and documents of the Chamber,Footnote ¹¹ as well as China's representations to the World Trade Organization (WTO) that it ceased regulating vitamin C exports at the end of 2001,Footnote ¹² the district court concluded that Chinese law did not compel the defendants’ anticompetitive conduct.Footnote ¹³

After trial, a jury returned a verdict for the U.S. purchaser plaintiffs, finding that the Chinese producers engaged in anticompetitive conduct that was not compelled by Chinese law (p. 1871). The district court entered judgment for the U.S. purchasers, awarding them “some $147 million” in damages and enjoining the sellers from violating the Sherman Act (pp. 1871–72).

On appeal, the Second Circuit reversed. The court explained that the case required a determination of “how a federal court should respond when a foreign government, through its official agencies, appears before that court and represents that it has compelled an action that resulted in the violation of U.S. antitrust laws.”Footnote ¹⁴ As the Second Circuit saw the case, the key issue in determining whether international comity required dismissal was whether Chinese law compelled the defendants’ anticompetitive behavior, a determination that rested on the “appropriate level of deference to be afforded a foreign sovereign's interpretation of its own laws.”Footnote ¹⁵ The Second Circuit took a broad view of the deference owed. The court held that “when a foreign government, acting through counsel or otherwise, directly participates in U.S. court proceedings by providing a sworn evidentiary proffer regarding the construction and effect of its laws and regulations, which is reasonable under the circumstances presented, a U.S. court is bound to defer to those statements.”Footnote ¹⁶

In a unanimous opinion by Justice Ginsburg, the Supreme Court rejected the Second Circuit's test as overly deferential. Instead, the Court held that when a foreign government submits an “official statement on the meaning and interpretation of its domestic law,” federal courts should “accord respectful consideration,” not “conclusive effect,” to the government's filing (p. 1869).

The Court noted that pursuant to Federal Rule of Civil Procedure 44.1, courts’ determinations of foreign law are questions of law, and courts may consider any relevant sources (p. 1873). But the Court recognized that neither Rule 44.1 nor “any other rule or statute” addresses “the weight a federal court determining foreign law should give to the views presented by” a foreign government (id.).

As a matter of “international comity,” the Court explained, courts should “carefully consider” the foreign government's views, “[b]ut the appropriate weight in each case will depend upon the circumstances” (id.). In an echo of U.S. administrative law, the Court set out some considerations courts should evaluate in assessing a foreign government's representations, including “the statement's clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement's consistency with the foreign government's past positions” (pp. 1873–74).

The Court held that the Second Circuit had gone too far in its deference to China's submission by “deeming [it] … binding, so long as facially reasonable” and by ignoring China's statements to the WTO that it ceased regulating exports of vitamin C at the end of 2001 (p. 1874). The Court also corrected the Second Circuit's reading of United States v. Pink,Footnote ¹⁷ explaining that although Pink gave conclusive deference to a foreign government's interpretation of its law, the holding was context-specific and did not create a blanket rule affording foreign government declarations conclusive effect (pp. 1874–75).

The Court concluded with two apparently prudential considerations. It noted that giving only some deference to a foreign government's filing in a U.S. court would not create a reciprocity concern because the United States “historically, has not argued that foreign courts are bound to accept its characterizations [of U.S. law] or precluded from considering other relevant sources” (p. 1875). The Court also noted that giving foreign government filings “substantial but not conclusive weight” accords with “international practice” as evidenced by the European Convention on Information on Foreign Law and the Inter-American Convention on Proof of and Information on Foreign Law (id.).Footnote ¹⁸

While not taking a position on the interpretation of Chinese law, the Court held that the materials the district court considered were relevant to whether Chinese law compelled the sellers’ conduct and that the Second Circuit erred in failing to consider them (id.). The Court vacated the Second Circuit's opinion and remanded for reconsideration pursuant to its substantial-but-not-conclusive deference standard.

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Animal Science Products provides some guidance to lower courts on how to treat the foreign sovereigns that appear with increasing frequency as amici,Footnote ¹⁹ but it raises new questions and leaves other issues unsettled.

Animal Science Products prompts two important questions about foreign sovereign amici: First, does a foreign government's decision to file before the court matter to the court's interpretation of foreign laws? And does it matter which foreign government is involved? The Court's opinion suggests that the answer to both questions is yes.

On the first question, China's appearance mattered a lot to the Second Circuit,Footnote ²⁰ and although it rejected the Second Circuit's conclusive deference to China, the Supreme Court too indicated that a foreign government's participation matters. The Supreme Court framed the question presented as “[w]hen foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement?” (p. 1869, emphasis added). In fact, the Court permitted more than just the filing of an official statement. The Court allowed China's Ministry of Commerce to appear at oral argument, dividing time with the defendant Chinese companies.Footnote ²¹ Granting argument time to a foreign sovereign amicus (or any amicus) is not unprecedented, but it is rare.Footnote ²²

International comity is grounded in respect for foreign sovereigns,Footnote ²³ and the Court's opinion suggests that a foreign government's decision to appear prompts a “comity bump.” The Court does not explicitly address how courts should treat a foreign government's interpretation of its own laws when that government does not file in a case; it simply instructs courts to afford “respectful consideration” to those governments that choose to appear before the court to invoke such consideration. Foreign sovereign amicus briefs on foreign law have proven significant to the Supreme Court in past cases,Footnote ²⁴ and Animal Science Products suggests that the choice to appear may increase the quantum of deference or likelihood of deference that courts will afford to a foreign government's views about its own laws.

The Supreme Court also suggests that which foreign sovereign files may matter. That suggestion is particularly interesting in the context of this case, where the lower courts noted China's “unprecedented” appearance as an amicus.Footnote ²⁵ The Second Circuit called China's filing of an amicus brief “an historic act,”Footnote ²⁶ noting that the brief “is the first time any entity of the Chinese Government has appeared amicus curiae before any U.S. court.”Footnote ²⁷

The Supreme Court emphasized that how much weight a court should afford a foreign government's representations is a context-dependent inquiry (p. 1873). Some of the factors identified are case- or issue-specific, including the nature and thoroughness of the government's statement and its consistency with past statements (pp. 1873–74). But the considerations also include “the transparency of the foreign legal system” (p. 1873), a characteristic that appears to vary country-by-country, not case-by-case.

The implications for the Court's test of a more or less transparent foreign legal system are unclear. The most frequent foreign sovereign amicus in the Supreme Court has been the United Kingdom.Footnote ²⁸ When the foreign sovereign amicus is the United Kingdom or another common law country, a U.S. judge might conclude that the foreign legal system is very transparent and therefore that the judge can assess the foreign law independently, without giving much weight to the foreign government's brief. On the other hand, because the country at issue has a legal system similar to the United States and is therefore more transparent, the judge might alternatively conclude that the government's brief deserves relatively more weight.

Conversely, consider a brief by a government with a significantly different legal system, shielded by linguistic or cultural barriers from easy evaluation. Justice Breyer seemed concerned about this circumstance, noting at oral argument that “the characteristic of a federal judge is he knows very little, if anything, about the law of 192 countries.”Footnote ²⁹ Justice Breyer has also previously stated that because judges lack knowledge about foreign law, “[i]t is … helpful to receive briefs from other nations.”Footnote ³⁰ The Second Circuit suggested that it gave conclusive deference to China's filing in part because of the judges’ unfamiliarity with Chinese law.Footnote ³¹ Should a lack of transparency in a foreign legal system trigger more deference to the foreign government's representations because U.S. judges need more assistance? Perhaps. On the other hand, a non-transparent foreign legal system means judges are less capable of independently assessing the accuracy of the foreign government's statement, creating a greater risk of manipulation.

Going forward, the case-by-case features that the Supreme Court identified may dominate the inquiry, both because of the lack of clarity surrounding how to apply the transparency factor and because of the potential dicey-ness of treating different countries differently based on the nature of their legal systems, rather than the nature of their positions in particular cases.

In addition to the new questions the Court's opinion raises, Animal Science Products also opens a new front in an existing debate. The Court's instruction to give “respectful consideration” and its description of what such consideration means will sound familiar to scholars of U.S. administrative law: the Court is effectively giving foreign governments’ submissions about foreign laws something akin to Skidmore deference.Footnote ³² Skidmore deference instructs courts evaluating a federal agency's statutory interpretation to consider “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”Footnote ³³ For a foreign government submission, by comparison, the Court considers “the statement's clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement's consistency with the foreign government's past positions” (pp. 1873–74).

Although the Court's opinion does not cite Skidmore,Footnote ³⁴ the relevance of domestic deference doctrines was clear at oral argument. Several justices referenced the conclusive deference given to state supreme courts construing state law, and the Chevron Footnote ³⁵ and Skidmore deference afforded to federal administrative agencies.Footnote ³⁶ Justice Breyer specifically used the phrase “respectful consideration” to describe Skidmore deference.Footnote ³⁷ The justices’ equation of foreign governments’ views with those of domestic administrative agencies is striking. Counsel for the United States, however, went even further, suggesting that sometimes a foreign government's view might deserve more deference than a domestic administrative agency because “it's a different legal system that the court isn't going to be familiar with and that the foreign government can explain.”Footnote ³⁸

Hitching the amount of deference due to foreign sovereigns to familiar administrative law doctrines provides a useful shortcut, not just for the justices but for practitioners and academics faced with foreign government filings. But doing so also imports existing administrative law debates into a new context. In particular, is Skidmore deference, with its promise that courts will consider an agency's views, really deference at all?Footnote ³⁹ As in the administrative agency context, a requirement of “respectful consideration” leaves plenty of room for courts to disagree with foreign governments.Footnote ⁴⁰ Whether mandatory consideration is understood as a form of deference or not, tying the treatment of foreign sovereigns’ views to a familiar (if not entirely clear) standard provides greater clarity than creating a new standard out of whole cloth. Moreover, analogizing to Skidmore rather than Chevron may ultimately provide more stability (if less deference) given recent suggestions that courts should abandon Chevron deference.Footnote ⁴¹

Animal Science Products’ context-dependent evaluation of foreign government representations is ultimately fitting in a decision that is itself highly context dependent. The Court decided only how judges should approach foreign governments’ views when they appear—and only when they appear—to explain the meaning of their own laws. The decision leaves in place existing precedents on, for example, the “considerable weight” due to foreign sovereigns’ interpretations of treaties to which they are parties.Footnote ⁴² The unanswered questions in Animal Science Products, however, will grow more pressing as foreign sovereigns play an ever-larger role in U.S. litigation.