We’ve blogged about multilingual foreign law translations and legal language translation in the context of religious law in US courts and arbitration process in China. Federal Rule of Civil Procedure 44.1 was originally adopted to solve the dilemmas associated with judges using a flexible framework in determining issues involving foreign law. According to Rule 44.1, foreign law ‘must be treated as a ruling on a question of law’.
In practice, this foreign law became a question of law and thus no longer had to be raised in the pleadings. Although Rule 44.1 did close the gap to many of the issues relating to foreign law, it failed to recognize the basic fact that judges simply cannot determine foreign law issues the same way they determine domestic issues for the simple reason that they are foreign laws. Not only does this require a foreign language translation, it also requires the understanding of a foreign legal system – something simply not practical in a globalized world where even lower court judges find themselves deciding questions of foreign law.
For this very reason, the use of expert opinions and foreign language translations became essential in Rule 44.1 determination – even though this is not typically authorized in domestic cases involving questions of law. In other words, because foreign law requires the use of expert opinions, it shifts this issue from a question of law to an issue of fact – opening Rule 44.1 to legal controversy.