What is the place, if any, for foreign law in interpreting US statutes and the Constitution? If there is a place for foreign law, what procedural steps should be required to properly assess its content? -- While the use of foreign law in US courts is hotly contested among American lawyers and legal scholars it is far less controversial in other jurisdictions -- or is it? 

Join the Swiss American Lawyers Association of Greater New York  for a presentation and discussion with Christopher Kende and Bob Michael of the Committee on Foreign and Comparative Law (CFCL) of the New York City Bar Association. 

When: Wednesday, June 3, 2009. Networking from 6:30 PM, presentation at 7:00 PM sharp

Where: Mayer Brown LLP, 1675 Broadway, at 52nd St., 19th Floor

RSVP by May 31 to dferzola@mayerbrown.com.

With more and more frequency, US courts, including the United States Supreme Court, are citing, and in some rare instances relying on, rulings of foreign courts or decisions of foreign judges. US courts have predominantly used these foreign law rulings and decisions in rendering decisions of first impression, often of constitutional magnitude, involving purely domestic American law disputes, frequently of a criminal nature.

Whether it is appropriate or even constitutionally permissible to look to foreign laws and decisions in rendering opinions on domestic disputes was explored in the recent Supreme Court decision, Roper v. Simmons, 543 US 551 (2005). In Roper, the Court, per Justice Kennedy, over a scathing dissent by Justice Scalia, held it was a violation of the Eighth Amendment to execute an offender who was under 18 years old at the time he committed a capital crime. Justice Kennedy reasoned that the Court had, at least since its decision in Trop v. Dulles, 356 U.S. 86 (1958), referred to the law of other countries and international authorities as "instructive" for its interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment. Justice Kennedy also looked to Article 37 of the United Nations Convention on the Rights of the Child, and the fact that only 7 countries in the world, other than the United States, executed juvenile offenders.

Justice Scalia, never one to mince words, accused the majority of asserting that American law should conform to the laws of the rest of the world. He pointed out that many fundamental principles of Constitutional law, such as the Exclusionary Rule, have, in fact, been rejected by courts of other countries. He also pointedly accused the majority of the "sophistry" of relying on foreign law when it suits it, but rejecting it in other instances when it does not. Roper, supra, 543 U.S. at 627. Roper and several other published debates (including the 2005 debate between Justices Breyer and Scalia at American University Washington College of Law) prompted the Subcommittee to analyze the use of foreign law by US courts and recommend whether reliance on a foreign law or decision is appropriate in rendering a determination of a domestic dispute, without international imperatives from a treaty or similar obligations.

Christopher B. Kende is a member of Cozen O'Connor LLP in New York City and of Cozen's Global Insurance Group. He focuses his practice on international insurance matters and has more than 25 years of experience in handling major complex multinational litigation in the areas of insurance, reinsurance, environmental law, admiralty and maritime disputes. His experience includes virtually every aspect of pre-trial, trial and post-trial proceedings in state and federal courts around the country. Among Christopher’s most notable matters was his successful representation of the French government in the AMOCO CADIZ oil spill litigation which involved the largest shoreline pollution in history. Christopher is a member of numerous legal associations and committees, including the Foreign and Comparative Law Committee of the New York City Bar Association - where he chairs the subcommittee on the Use of Foreign Law in US Courts, the Maritime Law Committee of the New York County Lawyers Association - of which he is a past president, the Union Internationale des Avocats (UIA) - where he served as president of the Admiralty and Maritime Law Commission and currently serves as president of the Insurance Law Commission, the Maritime Law Association of the United States - where he is a member of the International Organizations, Conventions and Standards Committee, and the New York Chapter of the French American Chamber of Commerce - of which he is a board member. Christopher has authored several reference works and book chapters on marine pollution and US insurance law, and numerous articles published in French and American periodicals and law reviews on the subject of limitation of liability, insurance, reinsurance and pollution legislation in the United States. Christopher is an adjunct professor of maritime law at Brooklyn Law School in New York and a frequent lecturer at bar association conventions, seminars and continuing education programs in his fields of expertise.

Robert E. Michael is a principal of Robert E. Michael and Associates PLLC, a boutique law firm in New York City specializing in the representation of non-US (primarily Asian) institutions involved in financially troubled situations in the US. Having begun his career in the banking and finance department of Fried, Frank, Harris, Shriver & Jacobson in New York, Bob has practiced law for over 25 years in a variety of settings. He has headed work-out departments in both a commercial bank and an investment bank and has been involved in hundreds of financial, business and work-out situations. Bob has extensive experience in corporate and securities law, domestic and international banking, equipment lending and leasing (tax, leveraged, finance and operating) and international public sector and project finance, and has been extensively involved in the retail, real estate, fashion & cosmetics, oil & gas, shipping, surface transportation, gaming, mining, and airline & aerospace industries. Bob also lectures on issues of cross-border asset securitization, partnership law, and Islamic law and finance. He is active in UNCITRAL and U.S. State Department efforts with respect to the UN Conventions on Contracts for the International Sale of Goods (CISG) and Assignment of Receivables in International Trade, as well as drafting of an International Legislative Guide on Secured Transactions. Bob is the immediate past chairman of the Foreign and Comparative Law Committee of the New York City Bar Association and continues to serve as a member of that committee.