| Summary/Abstract |
This amicus brief for China Chamber of International Commerce was filed on 4 April 2018 in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., No. 16-1220 in the US Supreme Court, which was decided on 14 June 2018. The brief argues that: I. Rule 44.1 of the US Federal Rules of Civil Procedure addresses only what materials may be used in determining foreign law, not what effect to give to these materials, which effect must be determined on considerations outside the Rule, and is consistent with whatever effect properly derived, including “binding deference”; II. A distinction must be made, among the materials used to determine foreign law, between what may count as applicable law and the subsidiary means for determining applicable law, and the interpretation or characterization of Chinese trade law by MOFCOM counts as applicable law; III. The Pink precedent demands that binding deference be given to the interpretation or characterization of Chinese trade law by MOFCOM as the authoritative decision-maker in this area; IV. The act of state doctrine as reflected in Sabbatino also supports binding deference to the interpretation or characterization of Chinese trade law by MOFCOM as the authoritative decision-maker in this area; V. Alternatively and subsidiarily, the interpretation or characterization of Chinese trade law by MOFCOM as the highest administrative authority on trade law in China should be given substantial deference analogous to Chevron deference; and VI. The alleged inconsistency between China’s representations to the WTO and its position in this case, even assumed to exist, does not affect the validity of its position in this case as a matter of domestic law and therefore the binding deference due to it.
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