In an earlier post, we shared the Black Letter to §§ 5.06 and 5.07 of Tentative Draft No. 1, Chapter 5. Choice of Law, Topic 2. Foreign Law, from Restatement of the Law Third, Conflict of Laws. The full draft contains additional Comments and Reporters’ Notes.
This Topic provides for three distinct steps when foreign law applies. First, a party or the court gives notice of foreign law (§ 5.06). Second, the parties and the court obtain and share information about foreign law (§ 5.07). Third, the court determines the content and meaning of foreign law (§ 5.08). This post contains the Black Letter to § 5.08 of the draft.
This project was on the 2020 Annual Meeting agenda before the Meeting was cancelled due to COVID-19. Accordingly, this text has not been considered by the membership of The American Law Institute and therefore does not represent the position of the Institute on any of the issues with which it deals. This supplement may be revised or supplemented prior to consideration by the membership in May 2021. If you are interested in obtaining a copy of this or any other Section of this project, please contact us.
If you would like to learn more about the contents of Tentative Draft No. 1, watch this video overview by Reporters Kermit Roosevelt III, Laura E. Little, and Christopher A. Whytock.
- § 5.08. Determination of Foreign Law
- (a) The court is responsible for determining foreign law.
- (b) Ordinarily, the court should determine foreign law in light of how it is authoritatively interpreted and applied in the foreign state.
- (c) If the court must determine foreign law to decide a motion to dismiss for failure to state a claim upon which relief can be granted, the court may use information about foreign law even if the material containing that information is outside the pleadings.
- (d) Disputes over foreign-law determinations are not disputes of fact that preclude the court from granting a motion for summary judgment.
- (e) The court’s determination of foreign law is reviewable as a question of law.