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The 7th U.S. Circuit Court of Appeals, in ruling in favor of a British manufacturer of French press coffee makers, served up extensive dicta about how U.S. courts should interpret foreign law. Chief Judge Frank Easterbrook authored the Sept. 2 opinion in Bodum USA Inc. v. La Cafetière Inc. Two other prominent 7th Circuit judges, Richard Posner and Diane Wood, weighed in with concurring opinions on the issue of interpreting foreign contracts. The panel affirmed a U.S. District Court for the Northern District of Illinois interpretation of a 1991 French agreement between Bodum Holding, which makes well-known French press coffee makers, and a British entity that distributes a French press style of coffee maker in the United States through Illinois distributor La Cafetière. The district court had ruled that the British firm, Household Articles Ltd., can sell its products anywhere outside of France. According to the ruling, Household must not use Bodum’s trade names, Chambord or Melior. Bodum USA’s suit alleged that La Cafeti�re’s sale of Household’s coffee makers violated Bodum’s common law trade dress rights, a form of trademark based on a product’s distinctive appearance.? In the main opinion, Easterbrook wrote that expert testimony may be essential in the rare instances when federal courts need to interpret foreign statutes or rulings that haven’t been translated into English or covered in English-language legal treatises. “But French law, and the law of most other nations that engage in extensive international commerce, is widely available in English,” Easterbrook wrote. “It is no more necessary to resort to expert declarations about the law of France than about the law of Louisiana, which had its origins in the French civil code, or the law of Puerto Rico, whose origins are in the Spanish civil code.” Posner opened his concurring opinion by noting his intent “to express emphatic support for, and modestly to amplify” the court’s criticism of using expert witnesses, typically lawyers or law professors from the country whose laws are at issue in the case, to interpret the law of that country. Posner cautioned that paid expert witnesses are “selected on the basis of the convergence of their views with the litigating position of the client, or their willingness to fall in with the views urged upon them by the client. These are the banes of expert testimony.” He also noted that most Americans speak only English, but argued that “our linguistic provincialism does not excuse intellectual provincialism. It does not justify our judges in relying on paid witnesses to spoon feed them foreign law that can be found well explained in English-language treatises and articles.” Wood’s concurring opinion detailed her reservations about relying solely on published materials to interpret foreign law. “Exercises in comparative law are notoriously difficult, because the U.S. reader is likely to miss nuances in the foreign law, to fail to appreciate the way in which one branch of the other country’s law interacts with another, or to assume erroneously that the foreign law mirrors U.S. law when it does not,” Wood wrote. Wood emphasized that she has “no objection to the use of written sources of foreign law,” but sees “no need to disparage oral testimony from experts in the foreign law. That kind of testimony has been used by responsible lawyers for years, and there will be many instances in which it is adequate by itself or it provides a helpful gloss on the literature.” La Cafetière’s lawyer, Thomas Pasternak, a partner in the Chicago office of Washington-based Steptoe & Johnson, said that the underlying ruling tackles “a pretty clean contract issue,” and it appears the panel took nearly a year to issue a decision because the judges were debating the various methods of interpreting foreign law. The ruling will be closely studied in the future because all three judges had different opinions about how to apply foreign law to a U.S. commercial dispute, said Pasternak. “These are the eggheads of the 7th Circuit. They were enjoying writing on an issue of interest to them.” Bodum’s lawyer, David Bennett, a shareholder at Chicago’s Vedder Price, said his client is disappointed. “We thought that the contract is not clear and that the jury should receive evidence of what the intentions of the parties were in connection with negotiations,” Bennett said. Bennett also said he agreed with Wood’s analysis of the foreign law interpretation issue. Using foreign law expert witnesses in U.S. court cases works really well in practice, he said: “It’s a very practical way to do that, given the problems of different languages and nuances of the laws of other countries. It’s probably a more precise way to do it than to refer to secondary texts in English.”

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