NOTES TO RULE 44.1
HISTORY: (Amended July 1, 1966; July 1, 1975; Aug. 1, 1987)
EXPLANATORY NOTES: This rule was developed collaboratively by the Advisory Committee on Civil Rules, the Commission and Advisory Committee on International Rules of Judicial Procedure (see Act of Sept. 2, 1958, 72 Stat 1743), and the Columbia Law School Project on International Procedure.
Notes of Advisory Committee on 1966 Amendments to Rules.
Rule 44.1 is added by amendment to furnish Federal courts with a uniform and effective procedure for raising and determining an issue concerning the law of a foreign country.
To avoid unfair surprise, the first sentence of the new rule requires that a party who intends to raise an issue of foreign law shall give notice thereof. The uncertainty under Rule 8(a) about whether foreign law must be pleaded--compare Siegelman v Cunard White Star, Ltd. 221 F2d 189 (2d Cir 1955), and Pedersen v United States, 191 F Supp 95 (D Guam 1961), with Harrison v United Fruit Co. 143 F Supp 598 (SD NY 1956)--is eliminated by the provision that the notice shall be "written" and "reasonable." It may, but need not be, incorporated in the pleadings. In some situations the pertinence of foreign law is apparent from the outset; accordingly the necessary investigation of that law will have been accomplished by the party at the pleading stage, and the notice can be given conveniently in the pleadings. In other situations the pertinence of foreign law may remain doubtful until the case is further developed. A requirement that notice of foreign law be given only through the medium of the pleadings would tend in the latter instances to force the party to engage in a peculiarly burdensome type of investigation which might turn out to be unnecessary; and correspondingly the adversary would be forced into a possibly wasteful investigation. The liberal provisions for amendment of the pleadings afford help if the pleadings are used as the medium of giving notice of the foreign law; but it seems best to permit a written notice to be given outside of and later than the pleadings, provided the notice is reasonable.
The new rule does not attempt to set any definite limit on the party's time for giving the notice of an issue of foreign law; in some cases the issue may not become apparent until the trial, and notice then given may still be reasonable. The 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, are among the factors which the court should consider in deciding a question of the reasonableness of a notice. If notice is given by one party it need not be repeated by any other and serves as a basis for presentation of material on the foreign law by all parties.
The second sentence of the new rule describes the materials to which the court may resort in determining an issue of foreign law. Heretofore the district courts, applying Rule 43(a), have looked in certain cases to State law to find the rules of evidence by which the content of foreign-country law is to be established. The State laws vary; some embody procedures which are inefficient, time consuming, and expensive. See, generally, Nussbaum, Proving the Law of Foreign Countries, 3 Am J Comp L 60 (1954). In all events the ordinary rules of evidence are often inapposite to the problem of determining foreign law and have in the past prevented examination of material which could have provided a proper basis for the determination. The new rule permits consideration by the court of any relevant material, including testimony, without regard to its admissibility under Rule 43. Cf. NY Civ Prac Law & Rules, R 4511 (effective Sept. 1, 1963); 2 Va Code Ann tit 8, § 8-273; 2 W Va Code Ann § 5711.
In further recognition of the peculiar nature of the issue of foreign law, the new rule provides that in determining this law the court is not limited by material presented by the parties; it may engage in its own research and consider any relevant material thus found. The court may have at its disposal better foreign law materials than counsel have presented, or may wish to reexamine and amplify material that has been presented by counsel in partisan fashion or in insufficient detail. On the other hand, the court is free to insist on a complete presentation by counsel.
There is no requirement that the court give formal notice to the parties of its intention to engage in its own research on an issue of foreign law which has been raised by them, or of its intention to raise and determine independently an issue not raised by them. Ordinarily the court should inform the parties of material it has found diverging substantially from the material which they have presented; and in general the court should give the parties an opportunity to analyze and counter new points upon which it proposes to rely. See Schlesinger, Comparative Law 142 (2d ed 1959); Wyzanski, A Trial Judge's Freedom and Responsibility, 65 Harv L Rev 1281, 1296 (1952); cf. Siegelman v Cunard White Star, Ltd., supra, 221 F2d at 197. To require, however, that the court give formal notice from time to time as it proceeds with its study of the foreign law would add an element of undesirable rigidity to the procedure for determining issues of foreign law.
The new rule refrains from imposing an obligation on the court to take "judicial notice" of foreign law because this would put an extreme burden on the court in many cases; and it avoids use of the concept of "judicial notice" in any form because of the uncertain meaning of that concept as applied to foreign law. See, e.g., Stern, Foreign Law in the Courts: Judicial Notice and Proof, 45 Calif L Rev 23, 43 (1957). Rather the rule provides flexible procedures for presenting and utilizing material on issues of foreign law by which a sound result can be achieved with fairness to the parties.
Under the third sentence, the court's determination of an issue of foreign law is to be treated as a ruling on a question of "law," not "fact," so that appellate review will not be narrowly confined by the "clearly erroneous" standard of Rule 52(a). Cf. Uniform Judicial Notice of Foreign Law Act § 3; Note, 72 Harv L Rev 318 (1958).
The new rule parallels Article IV of the Uniform Interstate and International Procedure Act, approved by the Commissioners on Uniform State Laws in 1962, except that section 4.03 of Article IV states that " [t]he court, not the jury" shall determine foreign law. The new rule does not address itself to this problem, since the Rules refrain from allocating functions as between the court and the jury. See Rule 38(a). It has long been thought, however, that the jury is not the appropriate body to determine issues of foreign law. See, e.g., Story, Conflict of Laws § 638 (1st ed 1834, 8th ed 1883); 1 Greenleaf, Evidence, § 468 (1st ed 1842, 16th ed 1899); 4 Wigmore, Evidence § 2558 (1st ed 1905); 9 id § 2558 (3d ed 1940). The majority of the States have committed such issues to determination by the court. See Article 5 of the Uniform Judicial Notice of Foreign Law Act, adopted by twenty-six states, 9A ULA 318 (1957) (Suppl 1961, at 134); NY Civ Prac Law & Rules, R 4511 (effective Sept. 1, 1963); Wigmore, loc cit. And Federal courts that have considered the problem in recent years have reached the same conclusion without reliance on statute. See Jansson v Swedish American Line, 185 F2d 212, 216 (1st Cir 1950); Bank of Nova Scotia v San Miguel, 196 F2d 950, 957 n 6 (1st Cir 1952); Liechti v Roche, 198 F2d 174 (5th Cir 1952); Daniel Lumber Co. v Empresas Hondurenas, S.A. 215 F2d 465 (5th Cir 1954).
Notes of Advisory Committee on 1975 Amendments to Rules.
Since the purpose of the provision is to free the judge, in determinating foreign law, from any restrictions imposed by evidence rules, a general reference to the Rules of Evidence is appropriate and is made.
Effective date on notes of Advisory Committee on 1975 amendments to Rules. Act Jan. 2, 1975, P.L. 93-595, 88 Stat. 1926, provided in § 3 that the amendment of Rule 44.1 "shall take effect on the one hundred and eightieth day beginning after the date of enactment of this Act [Jan. 2, 1975].".
Notes of Advisory Committee on 1987 amendments to Rules.
The amendment is technical. No substantive change is intended.