A Delicate Dance

• Author: Tatiana Sainati, Harsh Sancheti
• Pages: 34-39

Published in Litigation, Volume 48, Number 2, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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A Delicate Dance

How to Win Cases and Influence Courts

Applying Foreign Law

TATIANA SAINATI AND HARSH SANCHETI

The authors are associates at Wiley Rein in Washington, D.C. Tatiana Sainati is also an associate editor of L itigation.

A little over a decade ago, the Republic of Bolivia sued Philip

Morris in Brazoria County, Texas, state court for health care

costs incurred in treating Bolivian citizens for tobacco-related

illnesses. The case was quickly removed to Texas federal court

and later transferred to Washington, D.C.

In transferring the case, the district court queried why Bolivia

elected to file suit in the veritable hinterlands of Brazoria

County, Texas. The Court seriously doubts whether Brazoria

County has ever seen a live Bolivian . . . even on the Discovery

Channel. Though only here by removal, this humble Court by

the sea is certainly flattered by what must be the worldwide

renown of rural Texas courts for dispensing justice with un-

paralleled fairness and alacrity, apparently in common discus-

sion even on the mountain peaks of Bolivia!

The court expressed its virtual certainty (tongue pressed

firmly in cheek)

that Bolivia is not within the four counties over which this

Court presides, even though the words Bolivia and Brazoria

are a lot alike and caused some real, initial confusion until

the Court conferred with its law clerks. . . . [I]t is readily ap-

parent, even from an outdated globe such as that possessed

by this Court, that Bolivia, a hemisphere away, ain’t in south-

central Texas, and that, at the very least, the District of

Columbia is a more appropriate venue (though Bolivia isn’t

located there either).

The Texas court is not alone in preferring to outsource ques-

tions of foreign law. As Justice Holmes observed nearly a century

ago, foreign legal systems can appear to outsiders “like a wall of

stone.” In an increasingly globalized society, courts and litigants

alike must climb that stone wall. Doing so is no mean feat. As

Judge Margaret McKeown of the U.S. Court of Appeals for the

Ninth Circuit noted in a case involving the “transcontinental at-

tempts” of a Frenchman to protect his copyright in photographs

of Pablo Picasso’s artwork, “determining foreign law and the

confusion surrounding the role of foreign law in domestic pro-

ceedings” can cause substantial difficulties.

Often it is up to us, as zealous advocates, to assist our clients

and the courts in surmounting the challenges posed by disputes

involving foreign legal questions or governed by foreign laws.

For us, transferring the matter is not a solution—we must scale

the wall head-on.

We need not do it alone. Questions of foreign and interna-

tional law arise both in the U.S. courts and before arbitral tribu-

nals deciding complex commercial disputes. In either forum, we

Illustration by D oug Thompson