At common law, US courts will typically recognize and enforce foreign judgments if the judgment satisfies certain principles of international law. (Onetto, 2008, 36) Individual states have implemented statutes that set forth the procedure to followed with respect to the recognition and enforcement of foreign judgments although those statutes typically follow the Uniform Enforcement of Foreign Judgments Act and the Uniform Enforcement of Foreign Money Judgments Recognition Act.
(Onetto, 2008, 36) Although the US is not a party to an international convention on the recognition and enforcement of foreign judgments it is party to international treaties that recognize and enforce international arbitration awards. (Lu, 2006) This paper is exploratory in nature in that it examines and analyses the introduction and development of the US’ position with respect to the laws, practices and policies of the recognition and enforcement of foreign judgments within the jurisdiction of the US.
The Origins of US Laws on the Recognition and Enforcement of Foreign Judgments Historically the US developed an approach to the recognition and enforcement of foreign judgments that basically relegated control to individual state courts. (Mehren and Murray, 2007 237) State recognition of corresponding state judgments within the US was and remains subject to the US Constitution and the Full Faith and Credit Clause.
(US Constitution) Despite the interstate regulatory process with respect to the enforcement of judgments, the US maintained no specific regulatory process for the recognition of enforcement of judgments rendered by courts from foreign jurisdictions, and each state was left to its own regulatory process. (Mehren and Murray, 2007 237) In the decade of the 1970s engaged in bilateral negotiations with the United Kingdom with respect to the reciprocal recognition and enforcement of civil judgments in their respective jurisdictions.
(Mehren and Murray, 2007 237) These negotiations were convened at a Convention Providing for the Reciprocal Recognition and Enforcement of Judgments in Civil Matters. (Lowenfeld, 1996, 114) Ultimately these negotiations “stalled” and never came to fruition. (Lowenfeld, 1996, 114) Despite the failed attempt to negotiate a bilateral treaty with respect to the enforcement of foreign judgments in the US Mehren and Murray note that the mere attempt demonstrated a significant: “…
step in departing from the tradition of leaving international recognition and enforcement practice within the province of state rather than federal law. ” (Mehren and Murray, 2007 237) Federal control was formally invoked by virtue of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards also known as the New York Convention when the US indorsed the Convention in 1966. (Mehren and Murray, 2007 238) The US has also become a willing participant in international treaties and conventions that regulate civil aspects of international justice.
This is manifested by the US ascension to certain protocols under the Hague Conference on Private International Law. (Mehren and Murray, 2007 238) To this end the US has ratified Hague Convention’s protocols on the Service Abroad of Judicial and Extrajudicial Documents on the Taking of Evidence Abroad in Civil or Commercial Matters, Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, and the Convention on the Civil Aspects of International Child Abduction.
(Mehren and Murray, 2007 238) Even so, aside from the New York Convention with respect to arbitral awards, the US remains uncommitted to international treaties with respect to enforcement of foreign judgments. The current practice remains one that essentially permits individual states to regulate and control how foreign judgments will be treated. (Legum, 2005, 132) Even so the US courts have a “long history” of recognizing and enforcing foreign judgments “as a matter of comity.
” (Legum, 2005, 132) In the early case of Hilton v Guyot (1895) the US Supreme Court offered the following comments on the doctrine of comity: “Comity is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislature, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who under the protection of its laws.
” Hilton v Guyot, 159 US 113 (1895). The case of Hilton v Guyot would become a land mark case in the US with respect to the common law position with respect to the enforcement and recognition of foreign judgments in the US. (Legum, 2005, 132) Hilton v Guyot set the timeless standard for the parameters that ought to guide US courts when determining whether or not to recognize and enforce foreign judgments. The US Supreme Court ruled that US courts should recognize and enforce foreign judgments if the following five elements were satisfied:
• The defendant was permitted a fair trial before a court with due jurisdiction. (Hilton v Guyot 1895) • The defendant was provided with due notice of the process giving rise to the foreign judgment. (Hilton v Guyot, 1895) • The system of law applied by the foreign judgment subscribes to the fair and impartial administration of justice. (Hilton v Guyot, 1895) • The foreign court rendering the judgment would recognize and enforce a judgment rendered in the US if the situation was similar.
• The judgment was not obtained by virtue of fraud or prejudice on the part of the court of the system of law or there is no “other special reason why the comity of this nation should not allow its full effect. ” (Hilton v Guyot, 1895) These standards remain a part of the common law position with respect to the enforcement and recognition of foreign judgment in the US although reciprocity is no longer “an automatic bar. ” (Legum, 2005, 132)
In 1962, the US National Conference of Commissioners on Uniform State Laws established the Uniform Foreign Money-Judgments Recognition Act which did no more than codify existing tenets of common law on the enforcement and recognition of “foreign money judgments” . (Legum, 2005, 132) The Act itself was intended to serve as a companion to the Uniform Enforcement of Foreign Judgments Act, 1948 which provides for reciprocity among the courts of the US. The Uniform Foreign Money-Judgments Recognition Act served a two-tier purpose.
First, it provided for harmonization of national laws with respect to the enforcement of foreign judgments. Secondly, it provided a basis for the reasonable expectation that US judgments would be enforced abroad under the doctrine of comity. The Maryland Court of Special Appeals noted in Wolff v Wolf 389 A. 2d (1978) that the Uniform Foreign Money-Judgments Recognition Act was designed to: “promote principles of international comity by assuring foreign nations that their judgments would, under certain well-defined circumstances be given recognition…
” (Wolff v Wolf 389 A. 2d (1978)) In the final analysis, the Uniform Foreign Money-Judgments Recognition Act closely follows the doctrine of comity as expressed in the Hilton case. It is not Federal law in the sense that it is not mandatory and merely provides a recommendation for states to follow. In any case, many states have adapted the Uniform Foreign Money-Judgments Recognition Act, even among those who did not, the Hilton case provides a precedent of persuasive value. (Born, 1996, 938-941)