ANIMAL SCIENCE PRODUCTS, INC., ET AL., Petitioners, v. HEBEI WELCOME PHARMACEUTICAL CO., LTD., ET AL., Respondents
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Neil Gorsuch, Sonia Sotomayor
Interviewee(s): Jonathan Jacobson, Michael J. Gottlieb, Brian H. Fletcher, Carter G. Phillips

John G. Roberts, Jr.: We'll hear argument next in Case 16-1220, Animal Science Products versus Hebei Welcome Pharmaceutical. Mr. Gottlieb.

Michael J. Gottlieb: Thank you, Mr. Chief Justice, and may it please the Court: The question in this case is whether a district court is bound to accept a foreign sovereign's statement of foreign law in the unusual case in which the court has concerns about the statement's clarity, its completeness, or its consistency. The answer to that question is no. District courts have the authority to resolve their concerns by considering any relevant materials, even if they go beyond the materials presented by the sovereign. On the motion to dismiss in this case, the district court found that the amicus brief that was submitted by the Chinese Ministry of Commerce failed to answer important questions about how its Vitamin C regulations applied to the specific agreements that were identified in the complaint.

It also found that the Ministry's interpretation appeared to be at odds with the regulations that it cited and the documentary evidence before the court. The Second Circuit held that the district court abused its discretion by failing to dismiss the case at the motion to dismiss stage.

And the panel's view was based entirely on its view that the Ministry's appearance deprived the district court of discretion to answer its questions about the Ministry -- Ministry's position by proceeding to discovery.

Ruth Bader Ginsburg: May I ask you a question about your bottom line? You -- you say that the court of appeals should be reversed, but if you're right, that the court of appeals should not have taken what the Chinese Ministry said as conclusive, then wouldn't the proper bottom line be a vacate and remand so the Second Circuit can reassess, with the understanding that what the Ministry said is not conclusive?

Michael J. Gottlieb: We do think that vacating and remanding would be an appropriate disposition.

However, as we've pointed out in our brief, the Second Circuit in Footnote 10 of its opinion describe -- described what the -- what the district court had done as completely and reasonably appropriate in its treatment of the evidence at the motion to dismiss stage and on summary judgment stage. The -- the Second Circuit's opinion was simply that the district court had -- that the -- that the district court had erred and abused its discretion in failing to allow the case to move forward to discovery. The district court -- or the court of appeals hadn't even ruled on, for example, the appropriate complaint.

The court of appeals construed the second amendment -- amended complaint as opposed to the third amended complaint, which was before the district court on its motion for summary judgment. The -- the court of appeals did not challenge in any way the district court's construction and interpretation of Chinese law that occurred in its summary judgment opinion. And for that reason, we think that under the -- taking just the terms of Footnote 10 of the court of appeals' opinion, the proper disposition would be to reverse.

But we certainly accept that vacating and remanding would be an appropriate disposition as well. We think that there are significant costs to the rule that the -- the Second Circuit -- to the rule that the Second Circuit has adopted. One of those costs is the independence of the judiciary to decide questions that are before them.

U.S. courts should not give up their responsibility to say what the law is in cases and controversies before them, even when that law is foreign.

And courts in this country have been interpreting and construing foreign law for two centuries and not outsourcing that task to other entities simply because those questions are difficult. The integrity of the judicial process relies upon courts --

Neil Gorsuch: But, counsel, we actually do outsource saying what the law is sometimes in domestic law; Chevron, for example.

We give conclusive weight to a determination by an agency as to what the law is. So why, as a matter of comity, wouldn't we do the same to an administrative agency of a foreign sovereign?

Michael J. Gottlieb: There's a number of reasons, the -- the first of which is that the Chevron doctrine has a number of sort of gatekeeping steps or preconditions before this Court would even consider the reasonableness of an agency's interpretation. And so, for example, Chevron step zero and step one --

Neil Gorsuch: All that -- all that suggests is perhaps we -- we should import a similar regime here.

Michael J. Gottlieb: That would be quite a holding of this Court, Justice Gorsuch.

It would require this Court to invent rules for how a court is to determine, for example, what arm of a foreign sovereign is authoritative and how that foreign sovereign arm exercises its authority.

Anthony M. Kennedy: Suppose -- suppose a court said that a decision of the Supreme Court of England must be followed -- must be accepted as the law of England.

Michael J. Gottlieb: In that circumstance, Justice Kennedy, you would have, essentially, law that was before the interpreting court.

In other words, you would have the opinion of the highest court, which --

Anthony M. Kennedy: Well, and as Justice -- Justice Gorsuch's question indicates, we always accept the law of the state supreme court as being the law of the state.

Michael J. Gottlieb: Justice Kennedy, this Court does not always accept that law. Generally, it defers to the -- the interpretation of the highest state court, but there are exceptions to that; for example --

Ruth Bader Ginsburg: But it doesn't take their view of what the attorney general of the state says is the law.

Michael J. Gottlieb: That's correct, Justice Ginsburg.

Ruth Bader Ginsburg: That's --

Michael J. Gottlieb: The -- the highest ranking law enforcement officer of a state would not receive binding or conclusive deference on its interpretation of -- of its state law. But, importantly, Justice Kennedy, with respect to the question of a foreign court, even if presented with an opinion of a foreign nation's highest court, the task for the United States court would still remain to determine is that -- is that opinion or is that precedent binding on the question that is before me.

Stephen G. Breyer: Fine, fine.

What's the difference between what various professors have suggested I might have written in places that we should give respectful deference to the -- the opinions about the foreign nation, highest court or appropriate, respectful deference and what the court here said? We defer to the Ministry's reasonable interpretation that the term means or suggests. I mean, maybe there's a difference between "defer to a reasonable interpretation" and "give respectful deference to." But what is it?

Michael J. Gottlieb: The first formulation of that standard that you described, Justice Breyer, is the substantial deference standard, which is what the district court applied in this case.

And we think there is nothing inappropriate about that and it is what most courts in this country --

Stephen G. Breyer: So what you want us to do is to say you used the term "defer to a reasonable interpretation" and you should have used the term "we give respectful deference to." And for that reason, we would like you to reconsider the whole thing. Now I -- I -- I see that.

It certainly has a point.

But I'm afraid people would sort of start to smile on the court of appeals when we wrote such an opinion.

Michael J. Gottlieb: Justice Breyer, if that were our position, I would expect people to smile, but that is not our position.

Stephen G. Breyer: No.

Well, what is it?

Michael J. Gottlieb: Our position is that the standard that the court of appeals applied was not a defer -- if the substance of the opinion is reasonable standard.

The standard that the court of appeals applied -- applied was a -- a court that receives a sovereign interpretation is bound to defer if it is -- if the opinion is reasonable under the circumstances. And we know that the way that the court of appeals applied that standard was by only looking to the district court's decision on a motion to dismiss, in which the district court did not construe Chinese law. The district court did not construe or interpret Chinese law on the motion to dismiss. It simply held that the record before it, as it stood at that point, was inconclusive and required further development.

Stephen G. Breyer: All right.

In this Court, we have a brief submitted by what they purport to be the official interpreters of Chinese law, which you'll hear in a couple of minutes, and they say, one, it is Chinese law that these individual companies -- like our Webb-Pomerene association is what they are -- they -- but they have to make an effort to get together on price, and even if they don't, someone who exports must export at the price that the Chinese Webb-Pomerene association fixes. Normally, you get three producers in a room, they can agree on price.

That isn't a tough problem.

So -- so they'll agree.

And then, when they do agree, the key point is you can't export unless you follow their price. Now I asked my clerk to go through the record and see if there's anything in the lower court that actually suggests that isn't Chinese law.

Well, I don't know, not much. So that's my question.

What is there? What is there? Before we send this back to say you shouldn't have used the word "reasonable interpretation," you should have used the word "respectful deference," what is there, given the brief filed here, that you will use or could use to suggest, or have used, I haven't seen it here, that that isn't the law of China?

Michael J. Gottlieb: So, on the merits of that question, Justice Breyer, the first thing I would point out is that the Ministry's interpretation of its regulations has not been consistent through this case.

And in the 2006 amicus brief that it submitted to the district court, the Ministry interpreted its 1997 regulations, which included a notice and a charter of the Vitamin C subcommittee. The notice had been repealed and the -- and the charter of the Vitamin Sub -- C subcommittee had been replaced.

The replaced provisions of the Vitamin C sub -- Vitamin C subcommittee charter made clear that you did not need to be a member of the committee anymore to export, and that you -- and that you could, in fact, export Vitamin C without participating in any of the pricing gap --

Stephen G. Breyer: That isn't my question there, on that part.

It is what is there that suggests that a Chinese exporter could set a price lower than the price set by their equivalent to the Webb-Pomerene association? That's -- is there any evidence on that point?

Michael J. Gottlieb: Absolutely, Justice Breyer.

Stephen G. Breyer: What?

Michael J. Gottlieb: There are -- we have documents in the case repeatedly demonstrating that Chinese exporters did, in fact, sell their products in the United States at lower than the $3.35 price point.

Stephen G. Breyer: All right.

That -- that -- that would be a point.

And yet that might also equally prove that they don't all follow the law.

Michael J. Gottlieb: With respect to that, Justice Breyer, we also have documents from the Chamber, one of which is cited at pages 398 to 400 of the Joint Appendix, showing that at certain times during this case the Ministry of Commerce did not list -- the Ministry or the Chamber did not list an export price for Vitamin C. And we have documents as well that are in the record demonstrating that the Chamber understood this and the participants in the system understood this, that for certain time periods during the case, because the businesses could not get together and agree upon a set export price, they allowed the businesses to export without a -- a set or mandatory export price. And -- and again, that's pages 397 to 400 of the Joint Appendix, as well -- as well as other authorities that we've cited in our reply brief and our opening brief.

And the point of that is that not only -- there's an additional point that the district court made in its opinion for summary judgment, which is that the 2002 notice, which they take as sort of the central regulatory document in the case, contained a suspension provision. It contained in it a provision that said that the Chamber and its members can get together when market conditions demand and essentially stop the price review function of the price verification and chop regime. One of the problems that the district court had with the Ministry's brief in this case is that the 2006 amicus brief doesn't even mention the existence of the suspension provision.

It doesn't construe it.

It doesn't offer an interpretation of it.

They have done so here in this Court.

But the district court can't be faulted for not deferring --

Stephen G. Breyer: We're not.

But, I mean, in Pink and others, that's the other part.

I don't know.

They filed a brief in this Court, and shouldn't we take as given what they say in that brief?

Michael J. Gottlieb: Justice Breyer, I don't think that that is the lesson of Pink, if that's -- if that's what your question is.

And I don't think --

Stephen G. Breyer: Well, fine.

But here we have a government.

They say this is our law.

And is there -- I don't know the answer to that question, but I think it could be that we should take that as the law, unless you come up with a fairly good reason to think that isn't a -- that isn't.

Michael J. Gottlieb: Well, on the merits, I think I've just described why the position is wrong.

But as far as this Court's precedents go, Justice Breyer, I'd point out that in the Abbott case involving Chilean custody, you joined Justice Stevens' dissent in that case. And in Footnote 9 of Justice Stevens' dissent, Justice Stevens attacked the Chilean -- the interpretation of Chilean law issued by the Chilean official in that case because it was "a piece of advocacy." This Court can and does and in many of its cases has looked at the legal interpretations rendered by foreign sovereigns to determine their context, to determine the authority of the source offering the interpretation, and to determine whether the question that is being addressed in the interpretation is one of foreign law exclusively or one that sort of sits at the intersection of foreign law and U.S. law, which is what this Court did in the Intel case in rejecting the suggestions of the -- of the European Commission when this Court rejected very strong arguments made by the EC that the United States' line between investigation and adjudication did not map on well to the European line. And this Court in an 8-1 decision held that -- that it would not accept the European Commission's interpretation, with respect. Now, specifically with respect to Pink, we don't think that Pink was ever intended to be a rule of perspective or binding deference.

Pink was decided in the pre-Rule 44.1 era when questions of foreign law were typically and traditionally treated as questions of fact rather than questions of law. And the lower court opinion in the Moscow Fire case, the referee had held that the United States had failed to meet its burden in proving its case as to foreign law, which is -- which would not be the type of inquiry in which any case would engage in today. So we think as the -- as the case came to this Court, it would be a completely different case today, and, in any event, the United States was completely aligned in that case with the position that was -- that was put forth by the Commissariat for Justice from Russia.

Here --

Ruth Bader Ginsburg: There was no suggestion in Pink that there was any inconsistency in the position that the Soviet Union was taking, and here we do have a suggestion of inconsistency?

Michael J. Gottlieb: That's correct.

Before this Court reached -- before the -- the sentences in this Court's opinion in Pink that said that the Commissariat's declaration would be conclusive, this Court stopped and paused to note that the position that the United States had taken in Pink was supported by powerful expert testimony that was before the referee below. And -- and, additionally, there was a specific finding on which this Court relied in Pink that the referee had held that the Commissariat for Justice had the power to issue authoritative interpretations of Russian law. By contrast, the referee in the -- in the decision below in Moscow Fire had held that the Commissariat for Foreign Affairs did not. And so there was this preliminary question that this Court would have to reach the chief --

Sonia Sotomayor: Mr. Gottlieb, could you state -- I read some words in the opinion below that gave me pause.

The court below said: "We reaffirm the principle that when a foreign -- foreign government acting through counsel or otherwise directly participates in U.S. court proceedings by providing a sworn evidentiary proffer 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 these statements." I guess, what are you challenging or what -- can you just give me a bullet point listing of where the court erred in that statement?

Michael J. Gottlieb: We think the Court erred in saying that the district court was bound to defer, particularly at the motion to dismiss stage, when it had not yet reached a construction of -- of Chinese law. We think the court of appeals erred in its reference to a sworn evidentiary proffer. There was no sworn evidentiary proffer in this case.

There was simply an attorney declaration that authenticated the documents in question. We think the court of appeals erred in insisting on the appearance of the foreign sovereign in order to trigger --

Sonia Sotomayor: All right.

Let's assume the following, which is closer to Pink. Okay? There is a statement by the highest court in Timbuktu, okay, not to denigrate by using that, but in another country, a sworn statement either by the Minister of Justice, who says this is a translation of the Supreme Court decision, our court is the supreme -- comparable to your court.

It's the supreme court of our nation.

And it addresses this issue. I think, first, you're saying the court has to determine whether the evidentiary proof is based on a statement by someone who can actually say what the law is as a final arbiter in that country, correct?

Michael J. Gottlieb: Yes, Justice Sotomayor.

Sonia Sotomayor: All right.

So the first inquiry is, is it a final statement, is it someone who's reliable.

What else?

Michael J. Gottlieb: Well, so, Justice Sotomayor, the court would also have to determine whether the supreme -- whether that highest court's opinion is dispositive of the question presented, whether it actually speaks to the question that's before the United States court. And imagine that that same court received a -- a -- a later decided opinion from that same foreign highest court that appeared to directly contradict the opinion that was put forward by the foreign sovereign interpreting it.

Our position is that the interpreting U.S. court should, of course, have the discretion and, indeed, the duty to consider whether that later opinion is relevant in any way to the -- to deciding the foreign law question. Mr. Chief Justice, if I could reserve the balance of my time.

John G. Roberts, Jr.: Thank you, counsel. Mr. Fletcher.

Brian H. Fletcher: Thank you, Mr. Chief Justice, and may it please the Court: If I could start with Justice Sotomayor's question to my colleague about where the Second Circuit went wrong.

I think it's useful to distinguish between what we see as two related but distinct mistakes that the Second Circuit made. One of them relates to how much weight or deference a federal court should have given to a submission like the Ministry's amicus brief in this case, and that's the question that the parties have really focused on.

And I do want to explain why we think that the standard that the Second Circuit articulated is -- is too rigid and too deferential to foreign sovereign submissions. But there's another important mistake that we think the Second Circuit made.

And on that, we think my friends on this side of the table actually really aren't defending what the Second Circuit has done, and that is in defining what's the universe of materials that a U.S. court can consider in applying the appropriate standard of deference in assessing the foreign government's submission and ultimately in determining what foreign law is. And what we understand the Second Circuit to have done -- and this is the clearest in Footnote 10 of its opinion on page 30a -- is to say that when a foreign government presents its views about the construction of its laws to a U.S. court, the U.S. court is bound to defer if that construction is facially reasonable and the U.S. court cannot look behind that construction to things like contradictory statements in other fora or to other relevant materials on foreign law that cast doubt on the foreign sovereign's representation. And we think that was a serious error. And we think it's reflected in the way that this case has unfolded.

The district court, at the motion to dismiss stage, said I have the Ministry's brief, it's due deference, but I still have questions and I need more information.

It then developed at the summary judgment stage a lengthy analysis of all of the different things that it believed bore on the relevant question of Chinese law.

That analysis runs to some 50 pages. And the Second Circuit said, in that footnote that I referenced earlier, that the district court's consideration of that material would have been "entirely appropriate" had the Ministry not appeared in this case. But the Second Circuit believed that because the Ministry had appeared, that inquiry and that analysis of the Ministry's other statements and of the other evidence wasn't appropriate.

And, therefore, the Second Circuit didn't consider any of that and so hasn't adjudicated a lot of the debates about the meaning of Chinese law that the parties are now trying to have before you in the first instance.

Stephen G. Breyer: All right.

So -- so -- so what are -- look, what do you want? What words do you want to appear in the opinion? I mean, you're representing the State Department, right?

Brian H. Fletcher: Yes.

Stephen G. Breyer: Okay, fine.

The State Department, I'm sort of interested in their opinion, very.

Brian H. Fletcher: Yes.

Stephen G. Breyer: A hundred ninety-two countries.

We have nearly 1,000 federal judges.

The -- by and large, the characteristic of a federal judge is he knows very little, if anything, about the law of 192 countries. And so what precisely should we write in this opinion? It can't be no matter what, accept what they say.

But, my goodness, if you open the door, I mean, how -- how is this to be done? So that's why, "respectful deference," I don't know if that's the right phrase.

Brian H. Fletcher: So I --

Stephen G. Breyer: And I don't know if "defer if it's reasonable." Reasonable seems to open it.

So what are the words that these 900 judges are going to follow when they get submissions from the highest legal authorities in 192 countries without producing some kind of international chaos?

Brian H. Fletcher: So, first, just to close out the point I was speaking to earlier, I think the words that you should write to fix the first error that I was focused on there, about the universe of materials, is that when it gets one of these submissions, a federal court is never required -- required to close its eyes to other materials that it believes bear on the question; that applying whatever standard you decide is the right form of words, the federal court gets to apply that standard with the benefit of all of the evidence that it believes is relevant, including, for example, other representations by the foreign sovereign in other fora. Now, on the question --

Ruth Bader Ginsburg: Is that -- would that include here the representation to the World Trade Organization?

Brian H. Fletcher: That -- the district court did believe that was important here.

I -- I don't understand either Respondents or the Ministry to argue that that sort of potential inconsistency that the district court found between what China was telling the district court in this case and what it had told the WTO in other cases isn't relevant to the weight that a foreign sovereign's submission should receive. Here, I understand the Ministry and Respondents think that there was no inconsistency, and that's a question that would be -- remain to be settled on remand by the Second Circuit.

But, yes, absolutely, that sort of inconsistency is potentially relevant. And, Justice Breyer, to your question about then what's the form of words, how to say the sort of amount of deference, we would urge the Court not to do what the Second Circuit did, which is to try to articulate something like a Chevron-type rule, a sort of one size fits all, if the foreign sovereign's interpretation is reasonable or if it meets some other standard, then it's binding and that's the end of the case. And the reason why we'd urge you away from a standard like that -- well, there are actually two important reasons.

One is that we don't see any support for that in international practice.

We think that the Second Circuit was exactly right to say that U.S. courts should afford foreign sovereigns' submissions the same sort of weight and consideration that we would respect -- expect in courts of other countries. But the United States does not expect and does not receive that sort of binding deference or deference to anything that's reasonable that we say about U.S. law when --

Stephen G. Breyer: So, if it's not supposed to be that, and we're not supposed to tell them, what is it we're supposed to say? And if you say open the door, maybe we could say, of course, do whatever the State Department tells you.

I mean, that is -- I'm making it sound facetious, but there -- there -- you can work out that kind of thing.

Is that what you want?

Brian H. Fletcher: I certainly think --

Stephen G. Breyer: I mean, what?

Brian H. Fletcher: -- anytime, if the State Department appears in the case, that's going to be relevant and we hope that the courts would take that into account.

Stephen G. Breyer: There is, of course, the risk that the State Department will say thing A when it's country A and B when it's country B.

Brian H. Fletcher: Well, and also the State Department may not be there.

We weren't in this case, and we're still not in this case on the question of what does Chinese law actually mean.

That's a dispute that fixes the rights between two private parties.

And sometimes the department --

Stephen G. Breyer: What about saying when in doubt you can ask the State Department, see what they think.

Brian H. Fletcher: I mean --

Stephen G. Breyer: Take it into account for what it's worth.

Brian H. Fletcher: Sure.

Courts can do that in cases involving foreign relations.

And I -- I'm not sure that they've done it here.

Stephen G. Breyer: You're seriously saying what you want us to say is say nothing? Say nothing about what the standard is, nothing other than some general word like "respectful deference"? Should we say that?

Brian H. Fletcher: I think -- I would separate out two things.

I would say always respectful consideration.

We'd be very troubled if federal courts were not listening to what foreign sovereigns had to say and were not considering them with respect. I would also say that it would be appropriate to say that, ordinarily, the submission from a foreign government is going to get substantial weight, is entitled to substantial weight.

But, yes, we think that the weight that it's entitled to is inevitably going to depend on the circumstances.

Samuel A. Alito, Jr.: Suppose there's a case where there's an issue of foreign law, there's also an issue of -- of U.S. law in a U.S. court, and the court receives a submission from the ministry of commerce from the foreign country and also a brief submitted by the United States on behalf of the U.S. Department of Commerce.

Are they treated the same way?

Brian H. Fletcher: No.

I think the brief for the Department of Commerce would depend on the authority that the Department of Commerce had in that context if it was describing an interpretation it had adopted in the exercise of authority under Chevron.

Samuel A. Alito, Jr.: Well, it's a brief submitted -- it's a brief submitted by the Department of Justice on behalf of the Department of Commerce.

It's the official statement of the executive branch of the U.S. government.

And you have something comparable from a foreign government. So are they treated the same way?

Brian H. Fletcher: I don't think so.

I think both of them --

Samuel A. Alito, Jr.: Why not?

Brian H. Fletcher: Both of them are entitled to respect.

The respect and the weight that the U.S. government's submission is entitled to will be determined under domestic administrative law doctrines, like Chevron, like Skidmore, things like that. The weight -- the foreign government's submission should also get weight, but the factors that would inform the degree of weight that it should be given are going to depend on the foreign legal system and might differ, just to give a few examples, on whether or not it's interpreting regulations that that Ministry actually administers or is interpreting perhaps some common law question or some provincial law question that the Ministry actually has nothing to do with, right? And so part of our point is that federal courts are actually presented with interpretations that could be characterized as falling within the Second Circuit --

Neil Gorsuch: I -- I'm curious. So -- so federal agencies get deference, but foreign countries don't.

I -- I got that. But what -- what -- what does the State Department do in foreign litigation when a domestic -- American law is at issue? Does it seek Chevron deference in -- from foreign courts in the interpretation of American law?

Brian H. Fletcher: Only when Chevron deference would apply --

Neil Gorsuch: So it does?

Brian H. Fletcher: -- under American law.

Neil Gorsuch: So it does?

Brian H. Fletcher: When Chevron deference would apply under American law.

Neil Gorsuch: Yeah, so it says that foreign courts must defer to administrative agency interpretations --

Brian H. Fletcher: When American law --

Neil Gorsuch: -- in the United States.

Brian H. Fletcher: When American law assigns them that weight.

And, Justice Gorsuch, if a foreign country had a system like Chevron and had a rule like Chevron, and an agency of that country that was entitled to Chevron deference under the foreign legal system came in and presented that --

Neil Gorsuch: You'd argue the same thing here?

Brian H. Fletcher: No.

Of course, that would be appropriate to consider.

My point is just it depends on the authority of the interpretation within the foreign legal system. And you can't say across the board everything that comes from a foreign sovereign or an arm of a foreign sovereign or a foreign sovereign owned entity gets that same level of deference without regard to what actually -- how things work in the foreign --

Samuel A. Alito, Jr.: Well, let me reformulate my question.

Suppose the foreign country is just like the United -- it's exactly like the United States, except it's not the United States.

It's a foreign country.

So the government is exactly the same, exactly the same structure, everything relates to each other in exactly the same way.

And you get a brief from the -- the U.S. Department of Commerce and the Department of Commerce from this alter ego-United States.

Would they be treated the same way?

Brian H. Fletcher: I'm -- I'm sorry, treated the same way in the United States? Would they get --

Samuel A. Alito, Jr.: Yes.

Brian H. Fletcher: Would they get --

Samuel A. Alito, Jr.: Yeah.

Is there anything about the fact that one is different -- is a foreign country and one is the United States that would point to different treatment?

Brian H. Fletcher: Potentially yes.

And I think there, potentially, there are factors that would merit giving more deference to the foreign government's interpretation, in part because it's a different legal system that the court isn't going to be familiar with and that the foreign government can explain that wouldn't come into play in the domestic legal system. So this is not a one-way ratchet, and we're not suggesting that foreign sovereign representations are not entitled to weight or don't merit deference.

Our principal submission is just that it's going to inevitably depend on the circumstances and that those circumstances have to be evaluated on a case-by-case basis.

Stephen G. Breyer: Well, when --

Anthony M. Kennedy: Suppose you have two -- two questions -- two different cases.

One is, what is the general principle of the foreign country, what is the general principle of law, like a restatement, the restatement of law? The other is, was this conduct mandated by the government -- by the foreign government in a particular case? Any difference as to what deference we should give in case one and case two?

Brian H. Fletcher: I guess it depends. And I -- I know that's not a helpful answer to give, but I think it's going to depend on the circumstances, particularly if it's restatement-type common law and the relevant government agency doesn't have any authority to interpret common law, that would be decided solely by the foreign courts, that would cut against deference, and, you know, if, in contrast, the agency was saying it's our regulations that require the compulsion, that would counsel in favor of deference, but there would be lots of other considerations.

And so I don't know that I can give a categorical answer.

John G. Roberts, Jr.: Thank you, counsel.

Brian H. Fletcher: Thank you.

John G. Roberts, Jr.: Mr. Phillips.

Carter G. Phillips: Thank you, Mr. Chief Justice. And maybe I -- may I begin by expressing the thanks of the Ministry of Commerce -- Commerce for allowing me to participate in the oral argument today. At some point, I'd like to get to somewhat higher level, but I want to start off with a couple of points that it seems my colleagues made that -- that warrant correction at this stage. First of all, Mr. Gottlieb suggested that the kind of program, Justice Breyer, that you described, the -- the price verification and chop, didn't actually operate that way, that there was some gap, and he cited a couple of pages in the Joint Appendix.

And I would just quote those pages from the Joint Appendix, and you can evaluate them for yourselves. There, it does say: "No consensus was reached about price at the meeting.

The minimum price for export remains unchanged." That doesn't sound like a gap.

That says that they keep the price as it was before. A second statement is: "The agreed prices are the minimum prices.

We put the limit on the floor prices but not on the ceiling prices." I don't think there's any serious doubt, candidly, that what we have here is the system that we described both to the district court and have described to this Court that you had to get approval.

That's not to say that everybody did.

I'm not saying we can completely enforce the laws.

But it's about the same thing as saying that, well, you don't have some kind of maximum speed limits because people violate those speed laws all the time.

Ruth Bader Ginsburg: What do you do with the representation of China to the World Trade Organization that it had given up export administration of Vitamin C in 2001 and that it was a matter of voluntary agreement, with no coercion on the part of the government, with no government intervention? That -- that was a statement made by China to the World Trade Organization.

It seems directly contrary to its position here.

Carter G. Phillips: I would -- I would take probably three positions with respect to that. First, it seems to me the right answer for that problem is, if the government's got a problem with it, take it up with the World Trade Organization and -- and let that organization deal with those issues. And, indeed, it's interesting that the United States, of course, quotes our briefs filed in the district court before the WTO in suggesting that we had violated our obligations under the WTO. So it seems to me the answer is not give less deference to what a foreign government says to a federal court, but, rather, if there's a concern, deal with the concern directly with the --

Ruth Bader Ginsburg: But it isn't -- it's inconsistent to say the government compels us, that -- yes, our government compels this action by private actors --

Carter G. Phillips: Right.

Ruth Bader Ginsburg: -- and telling another agency, no, our government doesn't interfere.

This is a matter of what the private parties want to do.

Carter G. Phillips: Right.

And -- and, Justice Ginsburg, I think the answer -- the second answer I would give is that that was the context that we provided to the district court and explained exactly why the position we took before the WTO was completely consistent with the position we put before the district court. And what we said was that, in 1997, we had a compulsory scheme where the MOFCOM itself essentially set the prices directly through the Chamber.

In 2002, we adopted the PVC method in which we said, look, you guys negotiate among yourselves, come up with a price, tell us what it is, and then we will enforce that price. And that's the approach that we took. That's what we said to the WTO.

So that when we said that we had abandoned export administration, we did as to certain elements, but what we never said to them and what it was absolutely clear from the entire submission is that we maintained minimum export price requirements, that those were retained throughout. And the United States in its submission to the WTO specifically said, quoting our language, that China retained minimum price requirements and that that's the rule in place, and that was the rule in place --

Neil Gorsuch: Mr. Phillips, what if --

John G. Roberts, Jr.: Your argument --

Carter G. Phillips: -- throughout the entirety of this case.

Yes, Your Honor.

John G. Roberts, Jr.: Your position is that you should not have to make that argument, right? Your position is it doesn't matter what the WTO is, you look at the brief from the Ministry and that's it. So the sort of argument you were just making, which is a typical legal argument in American courts, you say is one that is inappropriate under your position.

Carter G. Phillips: I -- I think that's what this Court said in Pink.

The Court basically said -- and -- and I would take the Solicitor General in 1984 and 1985's position in the Matsushita case, which is a slight gloss on Pink, that basically says, if a foreign government comes to a U.S. court and says with clarity and -- and unambiguously this is the law, this is our foreign law, this is what it means, that the Court ought to abide by that, unless it's unclear or unless it's incredible on its face.

Ruth Bader Ginsburg: What about the -- the -- being informed by the United States that the United States itself does not urge before foreign tribunals that the foreign tribunal is bound to accept what the U.S. government says is U.S. law?

Carter G. Phillips: Well, I --

Ruth Bader Ginsburg: We don't -- we don't demand that, and we don't get it.

Carter G. Phillips: Well, I don't know about the don't get it.

I didn't --

Ruth Bader Ginsburg: But, again, respect focuses --

Carter G. Phillips: -- I didn't read a single instance in which the United States said this is our law and -- and the court didn't abide by it.

Let's -- let's -- can -- let me give you an example.

And -- and I guarantee you the United States' head would explode if this were to happen. So, if the United States went to a -- to another government, let's take -- let's pick France, just to get out of picking governments, but -- and said to them that what -- what happened in the United States was consistent with the rule of reason under Section 1 of the Sherman Act, and for some reason, that's directly relevant to France -- French law, if the French -- if a French court were to come back and say: Wait a second, I read your Section 1 that says all restraints of trade are illegal, and you come and tell me about rule of reason, I read your cases as saying there are per se illegalities and you come here telling me about rule of reason? I doubt -- I mean, the -- the notion that this was a respectful analysis of -- of China's, you know, when you say at the end this is a post-hoc attempt to shield somebody's behavior, that's not respect.

That's the opposite of respect. Everything you take from the argument on the other side, the best you can come up with is there might have been some ambiguity in the law.

Stephen G. Breyer: Well, what should we say in general? I just want you to reach that, because I can see three possible things.

Say they're like a state.

I'm sorry, if Texas' Supreme Court says this is the law of Texas, I don't care what somebody else says, that is what the law of Texas is, whether they held the exact opposite yesterday or not. Another possibility: Chevron.

Carter G. Phillips: No.

Stephen G. Breyer: Okay.

Okay.

Another possibility: Skidmore.

You see? We take it for the power to persuade but not the power to -- you know, it doesn't have the power to -- we just take it for what -- what it's worth and we show respectful consideration. And maybe we could limit it to the instance where it's the highest interpretive authority of the state, or nearly that, and instances where there are four professors getting into an argument about it. I mean, I'm having a serious problem, as you could tell, as to what words to put in this opinion.

You're worried about winning. I'm worried about what words to put in. (Laughter.)

Carter G. Phillips: Well, no, Justice Breyer, I'm actually -- I have the same concern about the words, because the truth is, if you quote the language of the Second Circuit, which you quoted, I won't go through it, but, you know, where it talks about which is reasonable under the circumstances presented, in the context of having had all of the circumstances presented to it, I don't know how this Court's going to improve on that particular language, which -- which does force me, and I -- I want to come back to the Chevron --

Stephen G. Breyer: We have very good authorities.

You know, the professors are telling us, no, the right language is respectful consideration.

And, well, I'm not being facetious.

They -- they spend a lot of time looking at this kind of stuff all over the world.

And -- and so that's a significant factor.

Carter G. Phillips: I -- I hear you, Justice Breyer.

But the problem with that is how do you -- how do you square up respect -- respectful consideration with post-hoc attempts to shield? That seems to me --

Stephen G. Breyer: So the words, to get back to the question, the words you want us to put in the opinion, at least in respect to the highest or near highest authority or -- or -- or -- or are what?

Carter G. Phillips: Personally, I'd go back to Pink and I would -- or the variation of Pink that the Solicitor General adopted in 1984, which says that you should give a conclusive determine -- conclusive -- it should be a conclusive determination, unless there is an ambiguity, unless it's incredible on its face, et cetera.

Elena Kagan: Mr. Phillips --

Carter G. Phillips: That's the standard that I think you ought to apply.

Elena Kagan: -- do -- do -- do China's courts use that rule?

Carter G. Phillips: In -- in dealing with

Elena Kagan: In dealing with foreign entities.

Carter G. Phillips: Yes.

MOFCOM is entitled to absolute -- absolute deference upon its interpretation of its rules.

Elena Kagan: No, no, no.

In dealing with foreign countries, do they -- do China's courts use the rule that you're suggesting American courts should use?

Carter G. Phillips: I -- I don't have any Chinese -- I looked for Chinese law on this particular question.

I couldn't find a single instance.

Ruth Bader Ginsburg: We do have -- we have the European Convention as a model of what other countries do.

And the European Convention on information about foreign law says that the information, given in reply by the country saying this is our law, shall not bind the judicial authority from which the request emanates.

Carter G. Phillips: Right.

It -- it shouldn't bind it unless it satisfies certain conditions, which is it has to be clear, it has to be coherent, and it has to be consistent.

Elena Kagan: Is there -- is there any --

Carter G. Phillips: If it does those things, then it should bind.

Elena Kagan: Is there any country that you can identify that uses that rule?

Carter G. Phillips: Well, the United States up until this case.

Elena Kagan: Yes.

Is there any country? You say you don't know whether China uses that rule.

Is there any country that you do know uses that rule?

Carter G. Phillips: I -- I don't know of any specifically, but I don't know that any rejects it either, Justice Kagan.

Ruth Bader Ginsburg: Well, it's -- if you --

Elena Kagan: I mean, it seems as though if -- if some country used that rule, you're a great lawyer, you would be able to tell us that some country used that rule.

Carter G. Phillips: Well, candidly, I didn't go searching all of the countries to figure out whether or not other countries use that rule.

I did go look to see whether this issue had arisen in China.

I couldn't find any instances in which that had happened, and so I can't represent to you that China would -- would reciprocate.

Ruth Bader Ginsburg: But it does seem that the European Convention that I mentioned and the similar provision in the Organization of American States, that you -- you ask the country, you want to know what their law is, they tell you; you give it respectful consideration, but it doesn't bind your -- you to follow, inevitably that you must follow, what the country tells you is its law.

That seems to be the position of both the European Convention and --

Carter G. Phillips: But, see, I -- Justice Ginsburg, I don't think there's an inconsistency between what the Second Circuit did and what you described there, because, first of all, in -- in -- in response to the Solicitor General's position that the court of appeals restrained its review of the appropriate materials, I mean, the -- the court specifically said, in determining foreign law, we may consider any relevant material or source, including the legal authorities supplied by the parties, as well as those authorities presented to the district court below, which, again, if you're trying to figure out how you're going to write an opinion, Justice Breyer, you cannot write an opinion in this case that says, well, you've got to do something different than that.

I think clearly that's exactly what you would want to do.

Samuel A. Alito, Jr.: You don't see a difference --

Anthony M. Kennedy: I'm not sure that the Pink case stands for the proposition that you assert.

In -- in the Pink case, the Court looked at what the Commissariat did.

The Commissariat looked at the expert evidence and said what the Russian law was.

And the Court's answer was premised on the Court's independent assessment that the Commissariat's position would be reliable and accurate. It was as -- as if this Court looked at whether or not there was an expert witness in Russia and said yes, there was and we'll accept that.

It's -- it's a careful assessment, we will accept that.

It didn't say accept it every time.

Carter G. Phillips: Well, except that in the context of the case where the previous litigation had, in fact, decided exactly the opposite and the Court acknowledged that there was voluminous -- a voluminous record which suggests that there was a very significant argument that there was an extraterritorial effect, all the Court had before it that -- that it relied upon was a statement of the highest Ministry, this is the Ministry of Justice, just -- the same as the Ministry of Commerce here, to interpret that particular provision saying it has extraterritorial effect.

And the Court --

Anthony M. Kennedy: Well, I'll look at it again, but it says the referee in the Moscow case found and the evidence supported his finding that the Commissariat for Justice had the power to interpret existing Russian law. In other words, the Court is looking at what the expert evidence was and found it -- and found it reliable.

Carter G. Phillips: Right.

But that didn't say what -- what standard to apply to the question of what the law is.

That says: Is the Commissariat an appropriate entity to give you a final determination of Russian law? I would submit to you that it's no different than the position of the -- of the Ministry of Commerce --

Samuel A. Alito, Jr.: Mr. Phillips --

Carter G. Phillips: -- in this particular case, Justice Kennedy.

Samuel A. Alito, Jr.: -- here are two -- here are two possibilities: One is the Court says we will give respectful consideration to the submission, but in the end, we will decide what the law is. The other is we will consider -- we will determine whether the submission is reasonable, and if it is reasonable, we will regard it as conclusive.

Are they the same?

Carter G. Phillips: I -- I don't think so, because I --

Samuel A. Alito, Jr.: Isn't the second what the Second Circuit said?

Carter G. Phillips: Yes, that's exactly what the Second Circuit said, but -- and -- and the reason why the Second Circuit's position is important and should be upheld is that there are two purposes for this kind of deference to foreign governments. One is we should get it right.

And, candidly, the right answer in this case is we had a minimum price regime and we enforced it, and -- and it dictated the outcome of this case.

And it is the basis for the antitrust claim. And you -- you may have other comity considerations that say, well, you apply it, but in this case, this was litigated, it all turned on what Chinese law required, and Chinese law required the plaintiff -- the defendants to do precisely what they did in this case. And then the second part of it is the respect to a foreign government.

And by not following what MOFCOM told them, the district judge ends up adopting what the court of appeals quite rightly describes as a nonsensical outcome in this case.

Therefore, we know that the right answer is what we said, is there is a minimum price regime and it ought to be applied under these circumstances.

Elena Kagan: But how -- how can you say that the only thing that shows respect to foreign governments is to do something that we don't know that any other foreign nation does? I mean, presumably, all these foreign nations are doing something more like Justice Alito's first option, which is giving respectful consideration.

And so that suggests that's what comity demands as an international matter.

Carter G. Phillips: I -- I -- I think the answer to that question is, one, we don't know what the entirety is -- is out there that -- that describes how other courts respond.

I don't think there are any other courts -- I don't think there's another system that's nearly as litigious as this one and therefore has -- may I -- may I finish?

John G. Roberts, Jr.: Briefly.

Carter G. Phillips: That is as -- is as litigious as this one.

But the rule in the -- in -- in this Court for 75 years has been to be -- to be that deferential, and nothing has suggested why that should change, Your Honor.

John G. Roberts, Jr.: Thank you, counsel. Mr. Jacobson.

Jonathan Jacobson: Mr. Chief Justice, and may it please the Court: I think the best case to start the deference inquiry in this case is by recognizing that the only way the 2002 regulation makes sense is under the Ministry's interpretation. Under the regulations, price fixing was clearly required under the 2002 regime. And the -- those regulations make no sense at all under the construction offered by the Petitioners in the district court.

Sonia Sotomayor: Doesn't that go to the merits of the issue here? That I -- I don't know that it answers the legal question we're looking at, which is the court below didn't go through the body of evidence that Rule 44.1 permits and say there's some contradictory evidence, but it doesn't make sense in light of the minister's explanation.

Jonathan Jacobson: Justice --

Sonia Sotomayor: Isn't that what the Second Circuit should have done?

Jonathan Jacobson: Justice --

Sonia Sotomayor: What it did was look at the minister's explanation without addressing any potential conflicting evidence and saying it really doesn't conflict.

Jonathan Jacobson: So -- so, Justice Sotomayor, I think if you look at pages 9a and 27 to 28a of the opinion, you'll see that what the Second Circuit did is it looked at the text of the 2002 regulation, said that appears to require price fixing, but there are some ambiguous terms.

And then, just to construe those ambiguous terms, that is where deference was granted to the Ministry.

So I think that's entirely consistent with what you are suggesting.

I would --

Ruth Bader Ginsburg: What about in the district court? There were -- it was a long opinion.

There were several reasons the district court gave to say, I'm -- I'm going to give respectful consideration, but there are these other things, including what China told the World Trade Organization.

There were -- the -- the Second Circuit, I take it, thought that what the Eastern District did was wrong, to take -- to look at those other sources?

Jonathan Jacobson: I -- I don't believe so, Your Honor.

I think what the court said is when you have the 2002 regulation and you look at the explanation by the Ministry, you don't need to go further. There is a footnote -- it's Footnote 14 in the court of appeals' opinion -- where it -- where the court explains that there may be instances where you have to go further, but this is not one of them. And -- and I do want to address the -- the issue raised by -- by Justice Kagan and Justice Ginsburg about other countries, what do other countries do.

It's an important question. The -- the Europe -- the answer truly is we don't know.

The -- the European Convention that we've been talking about for the last few minutes is one where it doesn't address the formal submission of a foreign sovereign.

It addresses the various sources of foreign law and says none of these will be dispositive.

And that's true and that should be true here as well.

Stephen G. Breyer: That's the -- do we draw that distinction, the formal submission of a foreign sovereign? The reason I ask that is -- you practice in this area, right?

Jonathan Jacobson: I do.

Stephen G. Breyer: All right.

My impression, not practicing in the area, is these -- this is an unusual case because this normally arises, say, in a contract dispute among private parties, and it says interpret it according to the law of China. And so you'll have experts who say what it is, and they'll conflict.

And the judge has to make a decision.

That's the normal case.

This is an unusual case because the sovereign country of China is itself interested, and that's why they've submitted this. Now do we recognize that in an opinion that's laying down a standard? Do we use a term like you just used? What is -- how do we preserve what, I guess, in an ordinary case should be a judge making a difficult decision in terms of conflicting evidence from this case, where you have the nation itself directly interested in the affair? Maybe the answer is don't distinguish. Maybe it is distinguish.

What do you think?

Jonathan Jacobson: So this Court has received amicus submissions by foreign governments in numerous cases.

Certainly, Empagran, there were -- there were a ton of them.

Stephen G. Breyer: Yeah, yeah, yeah, that's right.

Jonathan Jacobson: And -- and this Court has always recognized that the foreign government's statements in those briefs about its own laws should be controlling. So the Intel case was raised.

This Court made clear in Intel that the European -- that it was accepting the European Union's construction of its own law.

The difference was, what does this mean under U.S. law? That was the Intel decision. And that is always going to be true. The foreign government can tell the court what foreign law means, but the U.S. court has to decide what the implications are of that foreign law when reaching its decision.

Samuel A. Alito, Jr.: What if the entity that submits the brief on behalf of the foreign country does not have the authority under the law of that country to dictate what the law is? What if the entity is like the executive branch of the government of the United States, which does not have the authority to dictate what the law is? It -- it can express an opinion, and that's generally -- it's very often correct and it's entitled to respectful consideration.

Jonathan Jacobson: I -- I think, in that instance, respectful deference is an appropriate standard.

That is not this case.

Samuel A. Alito, Jr.: Well, why is it not this case?

Jonathan Jacobson: Because MOFCOM creates the regulations, interprets the regulations, and enforces the regulations.

And there's a -- a brief by Chinese professors who explain the rule that the rule-maker has the authority to interpret its own rules in China and that that authority is dispositive.

That's what makes this different than -- than Chevron deference. It makes it much closer to a certificate -- a certificate to a state supreme court, very, very similar.

John G. Roberts, Jr.: I -- I have -- I don't understand this constant emphasis on respectful.

It doesn't mean that you can't disagree, right? I mean, you know, "with all due respect" usually means the person's about to say you don't know what you're talking about. (Laughter.)

Jonathan Jacobson: Respectfully, Your Honor -- (Laughter.)

Jonathan Jacobson: So -- so I believe, when a foreign government comes in with an official statement of its own laws, respectful deference is not a sufficient standard. The deference standard should be -- and -- and, Justice Breyer, this goes to the question that you've been asking throughout -- I think, if you look at the first paragraph on page 23 of the Solicitor General's brief in the Matsushita case, that is the correct standard to apply here.

John G. Roberts, Jr.: So, just to be clear, respectful really plays no role, right? I mean, if you wanted to say -- to the government and say, well, all right, I guess you're right, I guess I have to defer to this, you might say that's disrespectful, but that's all that matters, right, whether you're going to -- and by "defer," you mean accept, whether you're going to accept the proposition or not, right?

Jonathan Jacobson: Yes.

John G. Roberts, Jr.: It's not enough to be respectful.

Jonathan Jacobson: Yes, Mr. Chief Justice.

John G. Roberts, Jr.: Okay.

Samuel A. Alito, Jr.: I -- I thought you just told me that if the entity that submitted the brief on behalf of the foreign country does not have the authority to dictate foreign law, then all it should get is respectful consideration but that this case is different. But then you seem to have turned around and said no, the rule across the board is that you follow what the foreign government submits. So which is it?

Jonathan Jacobson: So I -- I'm equating the foreign government with the entity that has the authority to interpret law under those circumstances.

Samuel A. Alito, Jr.: Could this issue ever come up in China -- in the Chinese courts?

Jonathan Jacobson: I suspect so.

The regime has changed.

PVC was eliminated in 2008.

The related restrictions were eliminated in 2010.

So it's difficult to see how, in today's milieu, that that would arise, but I -- I suspect it could.

Samuel A. Alito, Jr.: I don't understand enough about the Chinese legal system, but could this come before the Supreme People's Court?

Jonathan Jacobson: Well, in -- in -- with -- without exhausting all of the myriad contexts in which it might arise, hypothetically, I would think so.

Samuel A. Alito, Jr.: And would they just say, okay, this is what the Ministry of Commerce says; that's the end of the matter?

Jonathan Jacobson: Yes, absolutely.

Samuel A. Alito, Jr.: And can you point to something that shows that?

Jonathan Jacobson: It's the -- the principle that the rule-maker has the authority to interpret its own rules.

It --

Ruth Bader Ginsburg: Does the Supreme People's Court deal with cases like this? Isn't it true that, in most commercial matters, the courts are not used but arbitrators are?

Jonathan Jacobson: Justice Ginsburg, I honestly don't know the answer to -- to that question.

I do -- I do want to address the point that you've made a couple of times, Justice Ginsburg, about a suggestion of inconsistency. There's absolutely no inconsistency in what China told the WTO about giving up export administration.

What confirms that is the continued use, the repeated use and reliance, by the United States, by the European Commission, by Mexico, and, ultimately, by the WTO agreeing with the USTR's submissions in that case, none of which suggested any inconsistency on the part of China. And we have explained in our brief -- this is at pages 12 and -- and 40 to 41 of our brief -- precisely why giving up export administration is entirely consistent with the regulations, because prior to 2002, what China did to enforce the -- the price-fixing mechanism was to require transactional quotas and licenses for each transaction.

That's at page 428 of -- of the Joint Appendix. And what the implications of that are is that the result of the -- of the conduct is being compelled by the Chinese government and is -- is illegal under U.S. law. My -- my time is running out.

I do want to address a point, if I may, in the reply brief the Petitioners submitted, which is the argument that the regime is actually logical under the district court's interpretation.

And there are four reasons why -- why that is not true. One, the -- the idea that this is entirely voluntary and -- and not mandated is completely contradicted by the language in the 2002 and 2003 regulations, which use the word "shall" repeatedly, use the word "must." It's clearly in -- in that context, mandatory. Second, a point that we really haven't addressed sufficiently, what happened from 1997 to 2001 is that the regulatory regime in 1997 failed.

All right? It -- it led to a price war in 2001 that was very destructive to the Chinese economy. The idea that China would then change the regulatory system to one in which price fixing is -- is not mandated would result in lower prices, not higher prices.

And what China was trying to achieve was higher prices. Third, the -- the argument doesn't explain why the regulations would insist on compliance with industry agreements if industry agreements were not required in the first place.

That was the point made by the Second Circuit. And then, finally, agreements on minimum prices are clearly illegal per se, even if people charge a higher price than that. That's the Plymouth Dealers case from the Ninth Circuit in 1960.

It is consistent with the DOJ's position in the Matsushita case.

It's consistent with Socony and this Court's 1943 decision in the American Medical Association case.

And, finally, it's -- it's entirely consistent with Catalano against Target Sales, a per curiam decision from this Court in 1980. What the Chinese law required was unambiguously price fixing that was in conflict with U.S. law, and that is why, in reaching the determination whether to -- to affirm, vacate, or reverse, we believe the appropriate disposition is to affirm. If there's nothing further.

John G. Roberts, Jr.: Thank you, counsel. Mr. Gottlieb, two minutes.

Michael J. Gottlieb: Thank you, Mr. Chief Justice. I'd like to start with a question that Justice Kagan asked, which was the question about whether Chinese courts would -- would provide this kind of deference. There's no indication that Chinese courts would provide a rule of binding deference, and their amicus brief that they have from Chinese scholars on this precise question doesn't make that argument. The importance of this point is it shows that the rule for which the Ministry is advocating here and which Respondents are advocating would place the United States alone in the world. China doesn't apply this kind of binding deference.

The United States doesn't ask for it.

It doesn't apply it.

No other nation supports the Ministry's rule, as our -- as the amicus brief from the conflicts of law scholars provides. And in this Court, China is the only nation that is appearing before this Court urging reversal.

In -- in the Empagran case, that opposing counsel mentioned, seven other nations appeared asking this Court to constrict -- to restrict the reach of U.S. antitrust laws.

In Morrison, three other nations joined. In Hartford Fire, two other nations joined. In -- in this case, all you have is China advocating for this rule.

And the reason is because the -- the international standard simply does not support a requirement of binding deference because courts respect the independence of judicial branches that exist in other countries to answer the legal questions that are put to them. The costs of adopting such a rule that the Ministry and the Respondents are proposing are substantial.

There are accuracy costs that are built into trying to figure out who the right arm of the foreign sovereign is.

And that's not a hypothetical problem.

It arose in the McNab case, as described in our briefs.

It also arose in the Samantar case. And the rule that you simply defer to whatever foreign sovereign appears could put U.S. courts in a very delicate position without any guidance for how to answer the question of which arm of the sovereign is authoritative. It also creates the risk that the United States will not enforce United States laws in -- or interpret them in the way they're supposed to be interpreted in those areas where questions of foreign law bleed into United States law, as it does -- as they do consistently in cases involving -- in cases involving issues like antitrust.

Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.