Earlier this month, the Supreme Court came down with a 9-0 decision in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., an antitrust case involving vitamin C exports from China to the United States. Professor Nicholas Howson and I had submitted an amicus brief in favor of the position the Court adopted. Rejecting the position of the Second Circuit (and the Chinese government, speaking through the Ministry of Commerce (MOFCOM)) that US courts must conclusively defer to foreign government statements of their own law, the Court held that some deference but not conclusive deference was appropriate. Notably, MOFCOM’s very able counsel in oral argument was unable to name a single country (not even China) that had adopted the standard of conclusive deference he was urging the Court to adopt for the US, leading Justice Kagan to ask:
I mean, it seems as though if some country used that rule, you’re a great lawyer, you would be able to tell us that some country used that rule. . . . [H]ow can you say that the only thing that shows respect to foreign governments is to do something that we don’t know that any other foreign nation does?
Although MOFCOM suggested in its amicus brief that anything other than conclusive deference was “profoundly disrespectful” and could “cause an international incident,” these concerns seem exaggerated. As the Court’s opinion and an amicus brief pointed out, the standard adopted by the Court in this case—respectful, but not conclusive, deference—is the one prevailing around the world and the one expected by the United States itself. It is also the standard that many US courts have been applying for years, apparently without incident. While the determination of foreign law, especially in a jurisdiction so different from the United States as China, is unquestionably a difficult task, it is one that courts have no alternative but to undertake.