In many international contract negotiations, the question of which law will govern often arises in the final stages and receives less than the careful attention that it deserves. Further, a U.S. buyer or seller may fear losing a deal and, as a result, acquiesce to subjecting a contract to the law of a non-U.S. jurisdiction. What happens if a dispute arises under the contract and the U.S. party faces in a U.S. court the need to prove the selected foreign law? Or what if a U.S. company with branch or subsidiary operations abroad encounters a claim in this country, based on the law of another jurisdiction? The decided cases provide some useful lessons and warnings for litigants and practitioners.
In 1966, Fed.R.Civ.P. 44 was amended to treat a court’s determination of the content of foreign law as “a ruling on a question of law.” Amended Rule 44.1 also provides that “[t]he court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” The amended rule requires the party intending to raise an issue concerning foreign law to inform the court and parties by “pleadings or other reasonable written notice.”