Study On The Comity Of The Courts To Foreign Law Provided By Foreign Government

Whether the courts should defer to foreign law provided by foreign governments when ascertaining foreign law is the key issue of the antitrust litigation in the US court against Chinese Vitamin C export enterprises(“the Vitamin C Case”),and in response to this question,the answers given by the three level courts of the United States vary with each other.As the court said,it is rare for foreign governments to participate in US litigations to interpret foreign laws,and neither China nor the United States has clear legal provisions on whether laws provided by foreign governments are binding.Whether foreign law provided by foreign governments is deferred to by the courts will not only affect the effective operation of the system of the ascertainment of foreign law,but will also affect the development of international relations.Recognition of the binding effect of the law provided by foreign governments through the application of the principle of comity will provide some ideas for the solution of this problem.At the same time,however,the principle of comity is not applied unconditionally,and from the perspective of the meaning of the principle of comity,sovereign states will apply the principle of comity without prejudice to their own sovereignty.Therefore,in recognizing the binding effect of the law provided by foreign governments,certain conditions need to be put in place for the application of the principle of comity in order to guarantee the sovereign interests of the state of the court.For China,while the issue of the binding effect of foreign law provided by foreign governments has not yet had a great impact on the judicial practice of ascertainment of foreign law,comity to the foreign law provided by foreign governments is still of great significance for the same reason.Whether it is todeal with the US litigation,or to improve the Chinese foreign law ascertainment system,recognizing the binding effect of the foreign law provided by foreign governments,through the application of the principle of comity,needs more theoretical research.Chapter ? is an introduction to the Vitamin C Case.The Vitamin C Case is an antitrust lawsuit filed by U.S.Vitamin C buyers against Chinese Vitamin C sellers,accusing Chinese sellers of fixing export prices through the Chamber of Commerce,a monopolistic union.Chinese sellers claimed that they have been exempted because their fixed price behavior is a mandatory requirement of Chinese law.In support of the claims of Chinese sellers,the Ministry of Commerce of China submitted amicus curiae to the court to prove the mandatory provisions of Chinese law,that is,the Chamber of Commerce is exercising the authority of the government to regulate the export prices of in accordance with the relevant provisions of the Ministry of Commerce.Therefore,the key issue in this case is whether the interpretation provided by the Chinese government on Chinese law is binding on U.S.courts to ascertain Chinese law.According to the relevant jurisprudence,the Court of First Instance found that the law provided by the Chinese government would be respected to a certain extent,but not binding.The Court of Appeal held that the court of First Instance had misinterpreted the jurisprudence and reiterated the comity to the interpretation of foreign governments in the law of the Court in the United States v.Pink case.The Supreme Court held that the Pink case was a case before the promulgation of Article 44.1 of Federal Civil Procedure,and that the interpretation of the law by foreign governments was obtained through diplomatic channels,which was different from the merits of the case and therefore did not apply in the present case.Given that the law provided by the Chinese Government is inconsistent with China's commitment to the WTO,it is judged that the United States courts need not to apply comity to defer to the Chinese law provided by the Chinese Government,and that the laws provided by the Ministry of Commerce will only be respected to a certain extent by the United States courts.The Chapter ? is a theoretical introduction to the legal evolution of the connotation of the principle of comity and its scope of application.The Section I is about the connotation of comity and its evolution.The principle of comity can be referred to in Roman law as early as possible,but the principle of comity is generally considered to be formally derived from the “three principles” proposed by Huber,aDutch scholar of international law.The era of Huber is the golden age of the Dutch economy,and the development of its foreign trade has also catalyzed the development of inter-regional legal conflicts and transnational legal conflicts,so the study of international private law has emerged.Huber suggested that:(1)the laws of each state have force within the limits of its territory and bind all subject on it,but not beyond;(2)all persons within the limits of a state,whether they live there permanently or temporarily,are deemed to be subjects thereof.(3)sovereigns will so act through comity so that rights acquired from another state retain force in other state so far as they do not cause prejudice to the power or rights of such state or of its subjects.American Justice Story inherited Huber's view and put forward the theory of three principles,thus introducing the principle of comity into the American legal system.It considers that(1)each State has exclusive sovereignty and jurisdiction within its own territory;(2)no state may,through its laws,directly affect or bind property or persons located outside its territory;and(3)the effects and obligations of the law of a state in another state depend only on the legal and autonomous provisions of the latter,that is to say,it depends on its own appropriate jurisprudence and courtesy,as well as on its own express or implied consent.Story expressly identifies comity as a domestic legal requirement rather than an obligation under international law,and a state has the right to refuse to apply comity.But Story did not propose specific criteria for the application of comity.With the advent of the American conflict law revolution,the connotation of American comity principle is still changing,on the basis of Currie's government interest analysis,some scholars advocate that the principle of comity should be positioned in the category of conflict law,through the analysis of conflict of laws,in order to decide whether to apply comity.The Section ? deals with the scope of application of the principle of comity.Since the principle of comity has a sufficient legal basis in the United States,this part mainly clarifies the scope of application of comity through its application in the United States.Some American scholars divide comity into legislative comity,adjudicative comity and administrative comity according to the different objects to which comity applies.Legislative comity applies to the recognition of foreign law and respect for the regulatory powers of foreign governments;at the same time,the principle is also used to limit the scope of application of national law in order to avoid unreasonable interference with the regulatory powers of the other state.Adjudicative comity is mostly applied to the recognition of foreign court decisions.Administrativecomity applies to respect for the administrative acts of foreign governments and is usually manifested in the theory of State conduct,the immunity of foreign sovereignty and the priority of foreign governments to file lawsuits.In terms of the broad scope of application and its connotations as mentioned above,comity can be applied to the law provided by foreign governments through the above theories.The Chapter ? mainly discusses the necessity and conditions of recognizing the law provided by foreign governments through the application of the principle of comity.Section I deals with the need to apply comity to laws provided by foreign governments.First,that a foreign government provides foreign laws is an act of a state,and the comity to it is a recognition of the conduct of the state.Recognition of the conduct of a state is an inherent requirement of sovereign equality.If the court were free to judge the conduct of a foreign government,the implication in such judgment that the government would distort its laws to protect its own parties would have a negative impact on international relations.Second,comity to the law provided by foreign governments would increase the willingness of foreign governments to participate in the ascertainment of foreign law of the courts,thus facilitating the advancement of mutual judicial assistance and reciprocity on ascertainment foreign law.Third,in the ascertainment of foreign law,the role of judges is to interpret the law from the standpoint of foreign judges,and the courts should take into account the daily legal practice of the foreign states and the context in which foreign law is located,including the way in which one sectoral law of the state interacts with another.For judges,in the absence of more effective evidence to the contrary,respect for the interpretation of foreign law issued by the relevant government departments in their own countries is a requirement to improve the correctness of the application of laws.Finally,the parties can also foresee the control of foreign governments in their international dealings,and the comity to the laws provided by foreign governments corresponds to their reasonable expectations.The restraint of the parties is not only derived from written legislation,if the regulator testifies that it has supervision over the parties,and the court does not recognize the existence of such regulation,it will put the parties into a dilemma.Section ? deals with the conditions to apply comity to foreign laws provided by foreign governments.From the connotation of comity,the application of comity requires that foreign laws provided by foreign governments does not harm the sovereignty of the state of the court.This sovereignty is firstly embodied in the court'ssystem of ascertainment of foreign states.When the relevant law of the state of the court allows foreign governments to provide foreign law,the provision of foreign governments is not contrary to the ascertainment of foreign law of the state of court.And only when foreign law is not the fact in nature,the law provided by a foreign government is likely to be binding,otherwise any kind of proof has only evidentiary effect and is not binding.In this part,this thesis also compares the system of ascertainment of foreign law in the United States,Britain,Germany and France,in order to discuss the possibility of the law provided by foreign governments being given comity in those countries.Secondly,the ability of foreign governments to provide foreign law in their competence is also one of the conditions for the application of comity.In the discussion,this thesis hold that the foreign laws provided by the legislature,the judicial organ,the foreign affairs department in charge of foreign affairs and the judicial assistance organs on ascertainment of foreign law are reasonable.In addition,as discussed by the Supreme Court in the Vitamin C case,the foreign laws provided by foreign governments contrary to its international obligations such as its WTO obligations will not be conclusive.Through the combing of the connotation of international obligations,this thesis hold that the court does not need to give comity when the law provided by a foreign government conflicts with that foreign international obligation.Finally,in cases where certain courts can ascertain foreign law in a simpler and more efficient manner,such as through clear official legal texts,etc.,if the law provided by the government conflicts with those laws,then the court may also need not to give comity to the law provided by the foreign government,at which point such a foreign government's manifested malice mitigated effect on international relations of the court's judgment on the actions of foreign government.The Chapter ? aims to make recommendations on the relevant legal provisions of China in the light of the foreign laws provided by foreign governments in the ascertainment of foreign laws in China.First,this thesis discusses the current situation of laws provided by foreign governments in China.This part of the content bases on the Law of the Application of Law for Foreign-Related Civil Relations and the relevant judicial interpretation to discuss the manner in which foreign governments provide foreign laws,which,in the view of this thesis,includes the ascertainment of foreign law through foreign embassies and consulates,the ascertainment of foreign law by means of mutual legal assistance and the direct provision of foreign law by foreign governments similar to Vitamin C case.Because of the existence of the two-part theory stipulated by the law of Chinese ascertainment of foreign law,this thesis clarifies the scope of the foreign law provided by foreign governments in this part:although the parties may also obtain foreign law from foreign governments,the foreign law obtained in this way is not the law provided by the foreign government discussed herein.This thesis believes that for the law provided by foreign governments,Chinese courts should also give comity without violating China's sovereign interests.Although Chinese law does not take the principle of comity as the theoretical basis of foreign relations,China's long-held principle of sovereign equality and reciprocity,which is becoming increasingly important in the context of the Belt and Road,will provide theoretical support for the recognition of the effectiveness of foreign laws provided by foreign governments.At the same time,China should simplify the procedures for the ascertainment of foreign laws by embassies and consulates and mutual legal assistance to improve the efficiency of the use of the manner in which foreign laws is provided by foreign governments,so that the role of comity can be brought to a greater extent.The lesson China took in Vitamin C case that US refused to give comity is to speed up the de-administration of the Chamber of Commerce and bring Chinese law into line with international commitments in order to increase the possibility of comity in future international relations.