CHAPTER 10 FOREIGN AND INTERNATIONAL RESEARCH

• Jurisdiction: United States

Chapter 10 FOREIGN AND INTERNATIONAL RESEARCH

A. OVERVIEW

Generally, foreign and international legal research is not taught in the first year legal research class. Therefore, the discussion in this chapter will be a brief overview simply to raise awareness that there are both different legal systems as well as international law that may affect doing business in a foreign country. As world trade and international dealings continue to increase, there is a greater demand to understand the legal ramifications of transactions and conduct in foreign countries.

Several terms should be defined:

• Foreign law is the domestic law of another country except it is not domestic law of the United States.
• International law is the law between or among countries.
• Comparative law is the comparison of the law or legal systems of different countries around the world. This study examines the similarities and differences between countries or legal systems. It is not the law itself but a method or approach for studying the law.

First year students are usually surprised to know that most other countries do not share the same kind of legal system as the United States. There are three major legal systems — the common law tradition, the civil law tradition, and the socialist law tradition. The common law tradition has its roots in England during the Middle Ages and was applied around the world in the British colonies. For example, Great Britain, Australia, New Zealand, Canada, India, and the United States are common law countries. The civil law system has its roots in Roman law and spread throughout Europe with the Roman Empire. Countries such as France, Germany, Austria, Switzerland, Italy, Spain, Mexico, and Japan are examples of civil law countries. The socialist legal tradition has its roots in Soviet law. For example, Russia, China, Cuba, and North Korea are within the socialist legal tradition.

The researcher may encounter certain problems when researching the law of another country. For example:

• Language could be a problem because the laws of foreign countries are written in the official language of the country. Even if a researcher speaks the language of the country, conversational language and legal language can be different. There may be issues of having the information translated into English, and therefore, translation issues may arise.
• Beyond the language issue, the litigation process and procedures may be different than in the United States. Thus, it takes an understanding of the legal process and procedures.
• Publication of legal materials may be an issue. Access to foreign law will be very different among the three major legal systems. The government of a particular country may or may not publish all of their legal materials. Even if they do, it may be slow and out of date.

The weight of authority is different between the common law countries and the civil and socialist law countries. In common law countries, there is greater emphasis on and authority of case law. This is not true in civil law and socialist law countries which give greater emphasis to a code. The publication of information may also be different in civil and socialist law countries. Assuming there is a successful plaintiff, damages will be an issue and particularly punitive damages. Procedural issues such enforcement of judgments may be a consideration. For example, will a foreign country enforce a United States judgment that includes punitive damages?

With this brief overview in mind, the remainder of this chapter will provide an outline of basic sources and strategies to begin foreign and international law research.

B. FOREIGN LAW

[1] Finding Materials in Print, Electronic, and Internet Versions

As a general proposition, common law countries have a written or unwritten constitution, legislation, regulations, and one or more levels of a court structure to decide cases. As indicated above, one of the distinguishing characteristics of these countries is the importance and weight of case law. In a common law system, the court will review, interpret, and apply the laws of a state or country.

In civil law or socialist law countries, there are a constitution, a code and/or statutes, and case law. But the key difference is the emphasis on case law. Case law is significantly less important in interpreting and applying the law to the case than in common law countries. Unlike the United States and other common law countries, scholarly writings are more influential and authoritative than the weight that secondary authority is given in a common law country.

The following steps should be followed when researching foreign law. First, the researcher needs to determine whether the country is a common law, civil law, or socialist law country. Beginning with the legal tradition will help to explain the type of legal materials that are available and the relative weight of authority. Brill's Foreign Law Guide provides an introductory overview of the legal system and legal history of approximately 190 countries and is available in print and online. JuriGlobe's World Legal Systems is another online source that is a quick reference for countries. The CIA produces the World Factbook which provides information on the history, people, government, economy, geography, communications, transportation, military, and transnational issues for 267 world entities. The World Factbook is available at https://www.cia.gov/library/publications/the-world-factbook/. Modern Legal System Cyclopedia is multi-volume set that discusses the legal system of countries but is somewhat dated. Legal Systems of the World is a four volume set that is edited by Herbert Kritzer and organized by specific jurisdictions.

There are other online sources. For example, Findlaw provides links to foreign law sources at http://www.findlaw.com/12international/countries/index.html. LLRX has comparative and foreign law at http://www.llrx.com/comparative_and_foreign_law.html. In addition, librarians at various law schools have compiled guides to foreign law. For example, Columbia Law School has A Selective List of Guides to Foreign Legal Research, available at http://library.law.columbia.edu/guides/A_Selective_List_of_Guides_to_Foreign_Legal_Research; Duke Law School has foreign and comparative law at http://www.law.duke.eduAib/researchguides/foreign; or Yale Law School has a Country-by-Country Guide to Foreign Law Research at http://library.law.yale.edu/research/guides/country-guide. These guides connect the researcher to the best research guides and databases for each country. The Library of Congress in its foreign and international law section has foreign law guides for select countries at http://www.loc.gov/law/help/foreign.php. They include an introduction to the legal system, official sources of law, print, and web resources.

Second, determine what type of problem it is. Will the answer to the problem be located in the constitution, code, case law, or secondary authority? A source such as Brill's Foreign Law Guide provides an outline of the judicial and legislative system; primary and secondary sources of law and legal information; links to major online sources; and identifies major legal publications. For example, if this is a constitutional law problem, the constitution of countries can be found in the multi-volume set entitled Constitutions of the Countries of the World which is edited by A.P. Blaustein and G.H. Flanz. There are also online sources such as Constitution Finder at http://confinder. richmond.edu/ or Hein Online has current and historical constitutions.

If this is a statutory or case law problem, Lexis Advance and WestlawNext have these materials for some foreign countries and the European Union. WestlawNext also provides databases for foreign countries and the European Union.

Global Courts is a website that will lead the researcher to Supreme Court decisions from 129 foreign countries or at least a way to find those decisions. This information is available at http://www.globalcourts.com/. Websites such LEXADIN: The World Law Guide links to full texts of codes and legislation for foreign countries, but the information is in the language of the country. GlobaLex also provides...