The Supreme Court has issued an important decision concerning the application of the doctrine of international comity, vindicating a position advanced by Three Crowns in an amicus curiae submission on behalf of the U.S. Chamber of Commerce.
In Animal Science Products v. Hebei Welcome Pharmaceutical Corp., a unanimous Supreme Court held that the Second Circuit Court of Appeals erred in giving “conclusive” deference to statements made by the Ministry of Commerce of the People’s Republic of China that Chinese defendants facing a U.S. antitrust claim were compelled under Chinese law to engage in price fixing of vitamin C exported to the United States. Writing for the Court, Justice Ginsburg held that federal courts “should accord respectful consideration to a foreign government’s submission,” but are not “bound to accord conclusive effect to the foreign government’s statements.” Finding that “no single formula or rule will fit all cases in which a foreign government describes its own law,” Justice Ginsburg explained that the degree of deference afforded under the doctrine of international comity will depend on a number of contextual considerations, including “the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.” Because the Second Circuit had not so assessed the position of the Chinese Ministry of Commerce, its judgment was vacated and the case was remanded for further consideration.
This was the result advocated by Three Crowns in its amicus submission on behalf of the U.S. Chamber of Commerce, the world’s largest business federation. The submission argued that the Second Circuit’s “clear rule of conclusive deference” would distort the traditional conception of international comity and could have significant knock-on consequences in other areas of U.S. law where international comity obtains, including cases involving foreign sovereign immunity, discretionary enforcement of foreign judgments and arbitral awards, and discovery requests in aid of foreign proceedings.