In Bodum USA, Inc., v. La Cafetière, Inc., No. 09-1892 (7th Cir. September 10, 2010), a Seventh Circuit panel split on the issue of when and whether a U.S. court should consider expert testimony on the scope, content and applicability of foreign law in disputes before it, or whether should draw its own conclusions based on its own independent research into available English language sources unaided by the parties’ paid experts.
The dispute involved interpretation of a contract, translated from the French original, under French substantive law which governed the contract. The contract’s language appeared to limit the defendant only from selling particular products in France. The question raised was whether under French law testimony from the parties would be admissible as to the intent and meaning of that language. The plaintiff submitted an affidavit declaring that it understood the contract to limit the defendant's sales of the product to the United Kingdom and Australia, and argued that there must be a trial to determine the parties' intent. It supported this position with the declaration of a Professor of Law at Université Panthéon-Assas Paris II, tendered as an expert on French law. The defendant replied with declarations from two experts of its own stating that the court should look to the contract itself and then to evidence of the negotiating history that led to the contract, but not to self-serving present declarations of past intent.
Judge Easterbrook, writing for the majority, commented that “Because objective, English-language descriptions of French law are readily available, we prefer them to the parties' declarations.” Nevertheless, while discounting both parties’ expert testimony, Judge Easterbrook proceeded to look to the negotiating history just as suggested by the defendant’s experts, albeit based upon his reading of various English language commentary and translations of French law—something the District Court below had not done.
In his concurrence, Judge Posner went even further to state: “I write separately merely to express emphatic support for, and modestly to amplify, the court's criticism of a common and authorized but unsound judicial practice. That is the practice of trying to establish the meaning of a law of a foreign country by testimony or affidavits of expert witnesses, usually lawyers or law professors, often from the country in question. . . . the court doesn't have to rely on testimony; and in only a few cases, I believe, is it justified in doing so. This case is not one of them.” Judge Posner then proceeded to criticize what he characterized as the defense experts’ misunderstanding of French law as he read it, as well as the defense arguments that he viewed as going even further afield in misinterpreting French law.
While joining in the decision on the merits, Judge Wood, counseled: “I write separately to note my disagreement with the discussion of FED. R. CIV. P. 44.1 in both the majority opinion . . . and in Judge Posner's concurring opinion. Rule 44.1 itself establishes no hierarchy for sources of foreign law, and I am unpersuaded by my colleagues' assertion that expert testimony is categorically inferior to published, English-language materials.” Judge Wood noted that exercises in comparative law are notoriously difficult, because the U.S. reader is likely to miss nuances in the foreign law, or fail to appreciate the way in which one branch of the other country's law interacts with another, or assume erroneously that the foreign law mirrors U.S. law when it does not. As the French might put it more generally, apparently similar phrases might be faux amis or "false friends." She argued that in many cases testimony from an acknowledged expert in foreign law will be helpful, or even necessary, to ensure that the U.S. judge is not confronted with a "false friend" or that the U.S. judge understands the full context of the foreign provision. Some published articles or treatises, written particularly for a U.S. audience, might perform the same service, but many will not, even if they are written in English, and especially if they are translated into English from another language. It will often be most efficient and useful for the judge to have the assistance of an expert who can provide the needed precision on the spot, rather than have the judge wade through a number of secondary sources. In practice, the experts produced by the parties are often the authors of the leading treatises and scholarly articles in the foreign country.
Judge Wood concluded:
“[FED. R. CIV. PRO.] Rule 44.1 permits the court to consider "any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence." The written sources cited by both of my colleagues throw useful light on the problem before us in this case, and both were well within their rights to conduct independent research and to rely on those sources. There is no need, however, 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. The tried and true methods set forth in FED. R. EVID. 702 for testing the depth of the witness's expertise, the facts and other relevant information on which the witness has relied, and the quality of the witness's application of those principles to the problem at hand, suffice to protect the court against self-serving experts in foreign law, just as they suffice to protect the process for any other kind of expert.”
All of this discussion appears to be unnecessary dicta, given the ultimate decision in which all three judges concurred. Nevertheless, when using foreign law experts and in briefing points of non-U.S. law to U.S. courts, it may be advisable to make the case clearly as to why an expert is required to explain nuances not apparent in translation, as well as to survey both native and English language secondary sources. It may no longer be safe to assume that testimony from foreign law experts will receive deference ipse dixit or even be admissible in a U.S. court simply because that is the way responsible lawyers and courts have done it for years.