The principles of forum non conveniens overlaps with the due process considerations and as a result seldom succeeds on its own. (Legum, 2005, 135) Both due process and forum non conveniens largely rely on principles of fairness and justice in that they both consider whether or not the defendant to whom the foreign judgment apples had an opportunity or the facilities to appear in court, call witnesses and to respond to the claim against him or her. (Legum, 2005, 135) US courts will typically consider the question of forum non conveniens by reference to the law of the foreign judgment court as opposed to the application of US law.
(PRT Systems Inc. v Fablan, 1997 W. L. 27120 (Mass. Super. Ct. 1997)) Enforcing Foreign Judgments in the US Based on the preceding discussion it would appear that only in rare circumstances will US Courts refuse to recognize and enforce a foreign judgment. In general, a case duly determined on the merits by a court in exercise of its jurisdiction will be recognized if the judgment was not obtained by fraud and does not offend overlapping principles of public policy and due process.
Default judgments which are not determined on the merits of the case are on principle subject to general concepts of comity as are judgments determined on the merits of a case. ( Legum, 2005, 137) Although US courts have a history of refusing enforcement of a default judgment (Ritchie v McMullen, 159 US 235 (1989)), US courts have been known to enforce default judgments if notice of the process was duly served on the defendant. (Koster v Automark Indus. Inc. 640 F2d 77 (7th Cir. 1981)) In the final analysis, a foreign judgment can be enforced in the US, even if it was not obtained in “an ideal proceeding.
” (Legum, 2005, 137) In a typical case, the plaintiff in a foreign judgment seeking enforcement in the US will attempt to enforce the judgment in a state in which the defendant has assets to which the judgment can be attached. (Legum, 2005, 137) In any case USC Title 28 Section 1782 provides for the filing of an action in the US as a means of discovering whether or not or where in the US the judgment debtor has assets. (USC Title 28 Section 1782) Enforcement of the foreign judgment may be futile, for the plaintiff in the event the judgment debtor’s US assets are tied up in liens or garnishment.
(Legum, 2005, 137) The Uniform Foreign Money-Judgments Recognition Act, does not specifically provide for the actual procedural process although it does incorporate the Uniform Enforcement of Foreign Judgments Act which as previously states relates to judgments from other US states. Under the Uniform Enforcement of Foreign Judgments Act, enforcement is effected by lodging the judgment together with supporting affidavits. (Uniform Enforcement of Foreign-Money Judgments Act, Section 3) In any case, in order to have a foreign judgment enforced and recognized in the US, an initiating process is required.
(Legum, 2005, 137) As Legum (2005) explains: “… a lawsuit generally must be filed in a US court naming the judgment debtor as a defendant in personam or his or her property as defendants in rem or quasi in rem. ” (137) Plaintiffs wishing to pursue the possibility of enforcing a foreign judgment in the US have to determine whether or not state or federal court is the proper or more appropriate forum for effective enforcement. (Legum, 2005, 138) A number of variables will influence this decision and they include but are not limited to the following: • The requirements for filing the suit.
This is important, since the laws with respect to enforcement of foreign judgments vary from state to state. (Legum, 2005, 139) • Asset location and availability. (Legum, 2005, 139) • The “relative ease of enforcement procedure” with respect to federal or state court processes. (Legum, 2005, 139) Federal courts are not the best forums for enforcement of foreign judgments since federal courts have jurisdictional constraints mandated by the US Constitution. For example Article III, Section 2 describes federal powers and jurisdiction in the following terms:
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under the authority; — to all cases affecting ambassadors, other public ministers and consuls; — to all cases of admiralty and maritime jurisdiction; — to controversies to which the United States shall be a party; — to controversies between two or more states;– between a state and citizens of another state;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. ” (US Constitution, Article III, Section 2) In other words, the US federal courts will only have jurisdiction over a foreign judgment if the judgment or the action giving rise to the judgment is one that the federal court would have had original jurisdiction over in the first place. Legum (2005) puts the position of the federal court’s jurisdiction in perspective as follows:
“A party may file suit in federal court only if the court has federal question jurisdiction (jurisdiction predicated on the existence of a claim arising from or involving significant issues of federal law) or diversity jurisdiction (jurisdiction predicated on a dispute between citizens of different states, or citizens of a state and a foreign country in which the amount in controversy exceeds $75, 000. )” (138) Federal question jurisdiction typically arises in circumstances where an action for enforcement of a foreign judgment centers around federal laws, for instance, admiralty, bankruptcy, intellectual property etc. (Atlantic Ship Supply, Inc. v M/V Lucy, 392 F. Supp. 179 (M. D. Fla. (1975)) Diversity jurisdiction will typically arise in cases where parties to the action are from different sates or different jurisdictions. (USC Title 28 Section 1332(a)) By virtue Section 1332(a) of USC Title 28 Federal Districts courts are conferred with diversity jurisdiction over: “…
all civil actions where matters in controversy exceeds the sum or value of $75,000 exclusive of interests and costs, and is between: (1) Citizens of different States; (2) Citizens of a State and citizens or subjects of a foreign state; (3) Citizens of different States in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, as defined in Section 1603(a) of this title, as plaintiff and citizens of a State or of different States. ” (USC Title 28 Section 1332(a)) Moreover, the US Supreme Court ruled that diversity within the meaning of Section 1332(a) of USC Title 28 requires complete diversity between the parties to an action. (Owen Equip. and Erection Co. v Korger, 437 US 365 (1978).
In the event Federal jurisdiction is established, enforcement of a foreign judgment is less problematic where the judgment debtor has assets within the US that are subject to liens or garnishment. (Legum, 2005, 138) Once a Federal District Court recognizes the foreign judgment, the plaintiff is at liberty to have the judgment registered in other Federal District courts. (Legum, 2005, 139) In addition, the plaintiff seeking to enforce the judgment in a Federal District Court may avail himself of the Federal Rules of Procedure so as to summons any US resident who is outside the US and service of process is more easily facilitated under the Federal Rules of Civil Procedure. (Legum, 2005, 139)
Likewise, Legum (2005) points out that there are several advantages for filing enforcement processes at the State level. The advantages may be summarized as follows: • Litigation fees and costs are arguably lower at the state level than they are at the federal level. • Enforcement at state level is typically more expeditious because “state court sheriffs are typically more familiar with execution procedures,” than the marshals assigned to federal courts. (Legum 2005, 139) • It is also possible to proceed at the state level ex parte. In other words execution of the judgment may be effected without having to notify the judgment debtor. (Legum, 2005, 139)
• In the event a trial is required it is more likely that a trial will be obtained in the state court than it will be obtained in the federal court. (Legum, 2005, 139) In a typical case, the process for enforcement of a foreign judgment within the US commences with the filing of a complaint seeking enforcement together with a certified copy of the judgment exhibited to the affidavit. In the absence of a certified copy of the foreign judgment a US court may refuse recognition and enforcement of the judgment. (Pitman v Aran, 935 F. Supp. 638 (D. Md. 1996) ) In some states it is even possible to make an application for summary judgment rather than filing a complaint.
(Legum, 2005, 139) The plaintiff seeking enforcement and recognition is not required to prove the vailidity of the foreign judgment. He or she only need to satisfy the US court that the judgment is “final and conclusive” in the foreign court from which it was obtained. (Legum, 2005, 139) In any event, the Federal Rules of Civil Procedure Section 9(e) provides as follows: “In pleading judgment or decision of a domestic or foreign court, judicial or quasi-tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth the matter showing jurisdiction to render it. ” (Federal Rules of Civil Procedure Section 9(e))
Legum (2005) also explains that it is not necessary for the complainant to prove that the US court has personal jurisdiction over the matter if the defendant has assets in the jurisdiction where the court for enforcement is seated and the defendant is located elsewhere. (139) There are legal means available to avoid the possibility of a judgment debtor under a foreign judgment disposing of his assets within the US as a means of avoiding effective enforcement of the foreign judgment. (Legum, 2005, 139) In this regard, prejudgment relief is available. Prejudgment relief permits the complainant to obtain an order preventing disposal of assets in the form of “attachment of garnishment. ” (Legum, 2005, 139) In any case, the procedure fore enforcement of the foreign judgment in the United States typically involves procedural rather than substantive laws.
(Legum, 2005, 139) Even so, the judgment debtor will not be at liberty to raise a procedural defense if such defense had been litigated or lost at the foreign forum. (Fender v St. Louis Southwestern Ry. Co. 392 NE 2d 82 (Ill. App. Ct. 1979). This tenet of enforcement of foreign judgments in he US is quite similar to the “full faith and credit” principles which is applicable to judgments from other US States. (Legum, 2005, 139) All things considered the enforcement process in the US with respect to foreign judgments is bereft of factual arguments for the most part. In a typical case the only witnesses are usually the parties to which the judgment relates. (Legum, 2005, 140).
When defences raise the question of jurisdiction, lack of due process, lack of service of process, inconsistent policy consideration and a absence of reciprocity proof of foreign law may be necessitated. In order to accommodate the requirement to prove foreign law legal experts may be called as witnesses. (Legum, 2005, 140) There are however other means by which foreign law may be proved. Section 44. 1 of the Federal Rules of Civil Procedure provides that in order to prove foreign law, the court is at liberty to take into account: “… any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. ” (Federal Rules of Civil Procedure, Section 44. 1) Conclusion
Common law and statutory laws allowing for the enforcement of foreign judgments in the United States are such that they may not require the US’s ascension to an international treaty. The underlying theme is a propensity to ensure that justice was and is done between the parties in accordance with natural justice. At the same time, the US is mindful of comity of nations and individual sovereignty. As demonstrated, the US is a multi-jurisdictional territory itself and it would be entirely impractical to bind individual states to a treaty that permits or disallows the enforcement of a foreign judgment that is conceivably inconsistent with principles of laws in that state.
Moreover, an international treaty for the enforcement of foreign judgment might not accord with the Uniform Enforcement of Foreign Judgments Act which sets parameters for the recognition and enforcement of judgments among the various states.
Ackerman v Levine 768 F. 2d 830(2d. Cir. 1986). Atlantic Ship Supply, Inc. v M/V Lucy, 392 F. Supp. 179 (M. D. Fla. (1975). Banque Libanaise pour le Commerce v Khreich 915 F. 2d 1000 (5th Cir. 1990). Bolvin v Talcott 102 F Supp 979 (N. D. Oh. 1951). Born, G. (1996) International Civil Litigation In the United States Courts: Commentary and Materials. Kluwer Law International. Canadian Imperial Bank of Commerce v Saxony Carpet Co. 899 F. Supp. 1248 (S. D. N. Y. 1995).