(2) an SEP holder can unilaterally discharge its FRAND obligations in view of an implementer’s bad faith.This case involves G+ Communications, a 5G SEP holder and Samsung Electronics, a 5G standard implementer. The European Telecommunications Standards Institute (ETSI) and the 3rd Generation Partnership Project (3GPP)–both standards setting organizations (SSOs)–developed the 5G standard. ETSI’s Intellectual Property Rights Policy (IPR Policy) mandates that participants in the ETSI SSO declare all SEPs and irrevocably commit to negotiate in good faith and license the SEPs on FRAND terms. Furthermore, the IPR Policy’s “construction, validity, and performance” and participants’ declarations are “governed by the laws of France.”Early in the proceedings, Samsung filed a motion to dismiss certain aspects of G+ Communications’ complaint. The court deferred issues regarding the scope of the French law, stating they were “not appropriately decided at this stage” and suggested resolution under Federal Rule of Civil Procedure 44.1, which states:A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.Samsung argued that G+ Communications (and its predecessor-in-interest) had violated FRAND obligations, including the duty to negotiate in good faith.1 Based on these allegations, Samsung sought damages to cover all losses caused by the bad faith, including litigation costs.Samsung filed a Rule 44.1 motion arguing that French law permitted such damages. The court, referencing the testimony from G+ Communications’ own French law expert, largely sided with Samsung. It determined that G+ Communications had an obligation to negotiate in good faith and would be responsible for damages due to a breac

”[1] The Court answered that a foreign government’s description of its own law should receive “respectful consideration” but not “conclusive effect.”[2]The Supreme Court approached the issue by first considering the requirements of Federal Rule of Civil Procedure 44.1.[3] Rule 44.1 states that determination of foreign law is treated as a question of law, not a finding of fact. In ascertaining law, U.S. courts are not limited to the parties’ submissions, but instead may consider any relevant material.

The court found that the plaintiff had “ample opportunity” to correct any surprise or prejudice caused by the late designation, that Lockheed offered reasonable justification for the late designation, and that trial would not be disturbed because no date had been set.Regarding the governing law motion, in a joint status report the plaintiff had indicated his intent to apply the law of England with respect to Lockheed as Fullen testified at deposition that he worked on Lockheed’s C-130 aircraft while he was stationed at RAF Middlefield Air Force Base in England from 1995 to 1999. Lockheed brought the instant motion and argued that the plaintiff had given insufficient notice of their intent to apply foreign law pursuant to FRCP 44.1. The court agreed, and noted that discovery was complete and the case was approaching the dispositive motion phase.

The court’s determination must be treated as a ruling on a question of law.” Weighing in on a circuit split between different U.S. Courts of Appeals regarding the level of deference owed by U.S. courts to a foreign government’s official statement characterizing its own laws, the Second Circuit determined that Federal Rule of Civil Procedure 44.1 had not “softened” the level of deference owed to official interpretations of foreign law, and held that “when a foreign government ... directly participates in U.S. court proceedings ... regarding the construction and effect of its laws and regulations, which is reasonable under the circumstances presented, a U.S. court is bound to defer to those statements.” In re Vitamin C Antitrust Litig., 837 F.3d at 189.

When it does, however, it can create confusion and uncertainty amongst the litigants and the court. Although Federal Rule of Civil Procedure 44.1 was created more than 50 years ago to alleviate such confusion and uncertainty, case law over the decades reflects that this goal has not quite been achieved. On June 14, 2018, the Supreme Court of the United Stated added a new wrinkle to this uncertain area of law: a foreign government’s interpretation of its own laws is not binding on a U.S. court faced with the application of that law in its court.

While noting that “respectful consideration [should be accorded] to a foreign government’s submission,” the Supreme Court expressly concluded that U.S. courts are “not bound to accord conclusive effect to [a] foreign government’s statements.” In reaching its decision, the Supreme Court found that the Second Circuit’s “unyielding” deference to the statements of foreign governments was inconsistent with:the history and plain text of Federal Rule of Civil Procedure 44.1, which expressly provides that, when adjudicating foreign law questions, a court “may consider any relevant material or source . . . whether or not submitted by a party” and “may engage in its own research and consider any relevant material thus found;”the Supreme Court’s “treatment of analogous submissions from [State Attorneys General,]” which receive “respectful consideration” but “do not garner controlling weight;”the Supreme Court’s prior precedent – in particular, United States v. Pink, 315 U.S. 203 (1942) – which did not support the conclusion that a foreign government’s submission regarding the interpretation of its laws is automatically entitled to conclusive effect; andinternational treatises and diplomatic practices which establish mechanisms and protocols through which one government may obtain from another government recognition of official statements characterizing its laws. In holding that U.S. courts should apply a case-by-case analysis when determining how much weigh

In a 9-0 opinion delivered by Justice Ruth Ginsburg, the United States Supreme Court last week ruled that the federal courts are not “bound to accord conclusive effect” to a foreign government’s statement of its own law under Federal Rule of Civil Procedure 44.1, in Animal Science Products, Inc. et al., v. Hebei Welcome Pharmaceutical Co. Ltd. et al. The decision overruled the opinion of the U.S. Court of Appeals for the Second Circuit in In re Vitamin C Antitrust Litigation, 837 F. 3d 175 (2d Cir. 2016), in which the circuit court had set forth a “highly deferential rule” and concluded that whenever a government makes a reasonable statement of its own law in U.S. court proceedings, the U.S. court is bound to follow it.

Foreign experts may need to submit affidavits or testimony to explain the applicable data protection laws, and describe the risk of enforcement. (FRCP 44.1 provides that “[i]n determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” Courts will look to determine whether the plain language of the foreign statute is clear.

However, relevant considerations for courts in deciding what level of deference to give a foreign government's views on its law include "the statement's clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement's consistency with the foreign government's past positions." The focus of the Court's analysis was Federal Rule of Civil Procedure 44.1, which specifics that a determination of foreign law "must be treated as a ruling on a question of law," as opposed to a finding of fact, and that "the court may consider any relevant material or source" in making its determination. The Court noted the "obvious" purpose of the rule was "to make the process of determining alien law identical to the method of ascertaining domestic law to the extent that it is possible to do so."

The Supreme Court’s Decision Rejecting the Second Circuit’s rule, the Supreme Court vacated and remanded. Justice Ginsburg’s opinion for the Court explained the history of the issue—tracing the common law’s treatment of foreign law questions as factual disputes through the modern approach embodied in Federal Rule of Civil Procedure 44.1. That Rule, the Court explained, “fundamentally changed the mode of determining foreign law in federal courts” by specifying that a court’s determination of foreign law “‘must be treated as a ruling on a question of law.