This post is on private, not public international law. That means it has little to nothing to do with such hot button issues as the United Nations, the Kyoto Protocol, the International Criminal Court.
This post is on how American courts deal with business cases involving foreign parties and foreign or international law as that law applies to such cases. No more, no less.
Many years ago, I was representing a Canadian-Australian manufacturer in a big case down in Texas along with two truly excellent Dallas litigators, Dick Davis and Scott Edwards. At some point in the case, I had the “brilliant” idea of arguing that US Federal law had preempted Texas state law, mandating dismissal of plaintiff’s claim against my client. We settled the case before the court could hear my preemption argument, but I still remember the half-joking advice I received from Dick and Scott. It was something along the lines of, “forget about federal law, this is Texas; we don’t recognize federal law down here.”
I am beginning to wonder about the willingness of US courts to apply foreign or international law, even in those instances where US law calls for such application.
In a few months, I will be in Las Vegas (I count myself among the people who love Vegas!) speaking on the Hague Convention rules on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, as they apply to Chinese companies. Based on my firm’s experience with getting US courts to recognize international law, I am sorely tempted to just say something like, “forget about international law. This is the United States. We don’t recognize international law here.” Go ahead, just stick your summons and complaint in a bottle, throw it in the ocean, that ought to be enough for you to get a default judgment anyway. And since China never enforces US judgments anyway, why does it matter.
I am sure my speech will be a bit more nuanced by the time I get there, but you get the point.
For at least the third time (two times is coincidence, three times is a trend), a US court has allowed a case to go forward against a defendant despite plaintiff’s having clearly failed to abide by the Hague Convention Rules on international service of process. The most recent instance is in a still pending case so I cannot go into the specifics on that one.
Virtually every time we have sought to get the US courts to enforce the Hague Convention or even, in one instance, when we sought to get a US court to pretty much ignore the Hague Convention, the US court has seemed perfectly willing to rule as though the United States has no obligation to abide by a treaty it signed. I have a strong sense US Courts (both state courts and federal courts) will not enforce the Hague Convention’s technical service requirements (including that the summons and complaint must usually be translated into the language of the country in which it is being served). Oh, and getting a US court to throw out or stay (delay) a case so that an already pending case in another country can be decided first — forget it. My conclusion is that US courts are happy to ignore foreign/international law in favor of handling things under US law, whether US law should apply or not.
US court judgments usually are not enforceable outside the United States and one of the reasons given for this is the failure of American courts to recognize foreign law. My foreign clients (these are international businesspeople, not in any way anti-American) are complaining to me more and more about US courts and how “they think they can ignore the rest of the world.” One particularly piqued client (from a country very friendly to the United States) pointedly told me this is one of the reasons why America is becoming more and more hated and why we are losing our power. He insisted that the courts in his country would have ruled differently on the same issue and I think he is correct.
If the United States is serious about globalization, it is time our courts start recognizing that ours is not the only law in the world and that it actually behooves US business to make our courts more international in the context of business disputes.
What do you think?