The United States: The Use and Determination of Foreign Law in Civil Litigation in the United States

  • Peter HayEmail author
Part of the Ius Comparatum - Global Studies in Comparative Law book series (GSCL, volume 26)


In the United States, federal and state courts do not consider the possible applicability of foreign law ex officio: unless a party raises the applicability of foreign law and proves its content, forum law applies. This article details the statutory and case law as well as the evolution to a solution that retains the initial burden on the parties but provides for cooperation between court and parties for the determination of the content of the foreign law and makes the court’s decision thereon appealable. Tables contain references to the law of each of the states of the United States.

Private International Law (“Conflicts Law”) is mainly the law of the individual states in the United States; there is no uniform rule or approach as to when foreign law applies. When foreign law is applicable, the determination of its content is a question of procedure, governed by each state’s procedural law and by a Federal Rule of Civil Procedure when the case is pending in a federal court. State procedural rules differ and even the uniform federal rule has received different interpretations in the Federal Circuits. The common-law heritage and structure of American law explain two aspects shared by all procedural rules for the determination of the content of foreign law: the court does not make the determination ex officio; instead, the parties must raise the issue that foreign law may be applicable and then assist the court in determining its content. Furthermore, the adversarial character of American litigation requires notice to the opponent, an opportunity for the opponent to rebut, and perhaps even a limitation on the court to appoint experts or masters. This article discusses the scope and application of the Federal Rule and the divergent approaches in state courts, as well as current attempts in some states to adopt legislation limiting or proscribing recourse to foreign law. An appendix provides references to all state statutes and to principal state decisions.


Civil Litigation Federal Rules Civil Procedure Supra Note Judicial Notice 
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Copyright information

© Springer International Publishing AG 2017

Authors and Affiliations

  1. 1.Emory University School of LawAtlantaUSA

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