On November 14, 2017, following a rare invitation from the U.S. Supreme Court earlier this year, newly confirmed Solicitor General Noel Francisco submitted an amicus curiae brief on behalf of the United States in Animal Science Products Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., et.al, Case No. 16-1220, otherwise known as the Vitamin C Antitrust Litigation.

In its brief, the United States urges the Court to grant certiorari on the single issue of whether a foreign government’s characterization of its own laws must be treated as conclusive by federal courts. The United States argues that the Second Circuit erred by deferring to the Chinese Ministry’s interpretation of its laws and declining to assess the reasonability of the Ministry’s interpretation or consider relevant materials that might contradict it. A review is warranted, the United States asserts, because the Second Circuit’s ruling departs from the decisions of other circuits, causing uncertainty among the courts on the appropriate amount of deference and weight afforded to the statements of foreign governments who participate in litigation in the United States.

While federal courts should afford substantial weight to a foreign government’s interpretation of its own laws, the United States argues that courts should not automatically treat such characterizations as conclusive. Courts should instead take a more measured approach as endorsed by the United States in McNab v. United States, 540 U.S. 1177 (2004). The weight afforded to a foreign government’s interpretation should turn on a number of factors including “the statement’s clarity, thoroughness, and support; its context and purpose; the authority of the entity making it; its consistency with past statements; and any other corroborating or contradictory evidence.”

The United States explained that while the Second Circuit’s concern for deference and reciprocity between foreign governments is justified, the Department of Justice does not demand absolute deference by foreign governments. Instead, DOJ expects foreign tribunals to afford substantial weight to DOJ’s interpretations of U.S. laws because they are accurate and well-supported by evidence. As the United States pointed out, DOJ has not historically argued that its position be given absolute deference, nor have there been any prior decisions issued by a foreign tribunal that entitle DOJ’s positions such deference.

On the remaining two questions presented by the Petitioners, the United States took the position that these issues did not warrant review because they do not implicate conflict among the circuit courts, were not briefed in the lower courts, and were not expressly addressed by the Second Circuit.

The United States’ brief underscores DOJ’s position, articulated in the revised international antitrust guidelines issued this year, that it does not grant absolute deference to foreign governments in matters involving international comity. Only time will tell whether the arguments presented by the United States successfully persuade the Supreme Court to grant certiorari and add the Vitamin C Antitrust Litigation to its docket in the next term. However, the Supreme Court’s unusual request for input from the United States, combined with the United States’ newly-articulated position that certiorari should be granted, bodes well for those who believe the Second Circuit afforded too much deference to the views of foreign governments.