Date: October 28, 2010
Hon. Ann Pfau
|First of its Kind Memorandum of Understanding Signed Between U.S. State Court and Australian Court|
NEW YORK – Chief Judge Jonathan Lippman and Chief Justice James Spigelman of the Supreme Court of New South Wales (NSW) are today signing a memorandum of understanding (MOU) to establish a system for reciprocal cooperation and consultation between their respective judicial systems.
The MOU is believed to be the first agreement of its kind ever entered into between a court system of the United States and the court system of a foreign country. Under the MOU, if the parties consent, a substantial legal issue arising in a matter pending before the Supreme Court of NSW which involves the law of New York State can now be determined with the assistance of judges from New York (and vice versa).
Chief Judge Lippman and Chief Justice Spigelman expressed their mutual desire to increase cooperation and consultation between their respective judicial systems. They issued this joint statement: “Both New York and Sydney are commercial and trading cities with a global perspective. This MOU formalizes our conviction of the value of also “trading” judicial expertise for our mutual benefit and to advance the administration of justice internationally.”
In New York, Chief Judge Lippman will establish a panel of five volunteer judges who will be available to offer responses to substantial questions of New York law referred by the Supreme Court of NSW. The participants will consist of one judge from the New York State Court of Appeals and one justice each from the state's four Appellate Divisions. These judges will serve as referees and work collegially in three-member panels to jointly answer questions of law referred by the Supreme Court of NSW. The Supreme Court of NSW will have the discretion to adopt, modify, or reject the referees’ report in whole or in part. The Supreme Court of NSW will provide similar assistance on a reciprocal basis with regard to questions of Australian law.
The New York judges who volunteer to participate in this effort will be doing so on an uncompensated basis, in order to promote comity and cooperation between the two judicial systems. Because they will be acting outside the scope of their official court duties, their reports will not be considered official or binding articulations of New York law and will not have the precedential authority of court decisions.
Chief Judge Lippman said, “In this age of rapid globalization and expanding international trade, domestic courts are increasingly called upon to decide cases that involve cross-border issues and require the determination and application of foreign law. For judges who are not trained in, or familiar with, foreign law systems, such cases can be especially difficult and time consuming to resolve. Therefore, it is in our mutual interest to adopt mechanisms for international judicial collaboration and consultation that contribute to the fair, objective and expert resolution of questions of foreign law. In particular, New York's judges and lawyers have a strong interest in making sure that New York law is determined and applied accurately around the world.”
Chief Justice Spigelman said, “The traditional mechanisms for determining questions of foreign law by means of expert evidence have been shown on many occasions to be costly, prone to delays and other difficulties and, most significantly, just plain wrong too often. In an era when a sense of collegiality has developed among judges at an international level, mutual cooperation is possible to a degree that was not true in the past. Parties to legal proceedings in which an issue of foreign law must be determined are entitled to that determination being both correct and authoritative. The new procedures established under this memorandum of understanding will enable that objective to be attained.”
Stephen P. Younger, President of the New York State Bar Association, added, “With the legal profession becoming more globally interdependent, it is important that we work together with our colleagues abroad to address issues we have in common. I join with our International Section in commending Chief Judge Lippman and Chief Justice Spigelman for coming together on this initiative, which represents just one of the many ways our profession can partner with each other across the globe.”
The MOU is the second of its kind entered into by the NSW Supreme Court and mirrors the MOU entered into by the Supreme Courts of Singapore and NSW in June 2010.
Today’s announcement is being made to coincide with a conference in Sydney, Australia, “New York to Sydney: Navigating Currents in International Law,” which is being co-sponsored by the International Section of the New York State Bar Association. Chief Judge Lippman will participate in the conference via webcast.