Consider this question, “Should the US Supreme Court Justices consider foreign law when interpreting US law and the Constitution? This is an important question affecting global businesses with operations in multiple countries. I recently attended a discussion on this subject between US Supreme Court Associate Justice Stephen Breyer and Lord Jonathan Sumption of the Supreme Court of the UK. Their discussion centered on whether or not the use of comparative law compromises the rule of law.
You might think this was a fairly obscure, dense, discussion between stuffy, legal minds about a rarely encountered problem-but then, you would be wrong. The discussion between the two Supreme Court Justices was lively, enlightening, educational, witty, and….funny. According to Justice Breyer, almost 30% of cases he reviews raise legal issues whereby studying how the rule of law is applied in foreign countries contributes to decision-making.
It makes sense when you consider the common origins of US law in English Common Law, as well as legal rules spanning multi-jurisdictions. For example the Foreign Corrupt Practices Act applies to certain US corporations and has legal implications overseas. Prosecuting a case involves questions of legal certainty, equality, access to justice, and fair trial. Other issues where the rule of law in one country might be connected to the rule of law in another country include corruption, terrorism, migration, investment, pollution, crime, human rights.
The program was sponsored by the New York Bar Association in conjunction with three organizations that exist to promote the rule of law both within countries and in the wider international environment. The International Rule of Law Project Inc., (www.irolp.org) is a US non-profit which sponsors research and programs on the subject. They partner with the British Institution of International and Comparative Law (www.biicl.org) and the Bingham Centre for the Rule of Law (www.binghamcentre.biicl.org). More information on this subject is available from these websites. I would encourage those in executive leadership positions with global businesses, particularly the legal, tax, and HR professions, to consider how their global trade activities might be part of a multi-jurisdictional discussion.
