Due Process Consideration in the Recognition of Foreign Judgments - Part 4 Chapter 8 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
While it is common practice for both the state and federal courts of the United States to recognize and enforce foreign money judgments rendered by foreign courts and tribunals, as a case decided in the Ninth Circuit involving the government of Iran makes clear, that principle, however general, is not universal in its application and there are some instances where American courts will deny such recognition.
The granting of recognition to civil judgments for money damages rendered by foreign courts on the basis of comity has long been a practice within American courts. The state and federal courts of the United States enforce such foreign judgments by virtue of their authority to attach assets belonging to the defendant found in territory falling under their jurisdiction.
Unlike many European and other countries, however, the United States is not a signatory to any international agreements providing for the enforcement of judgments obtained in other countries. Nevertheless, since the Supreme Court’s seminal decision in Hilton v. Guyot, international comity has been recognized as the basis on which foreign judgments are enforceable. The law applicable to the enforcement of foreign money judgments has been codified in the Uniform Foreign Money-Judgments Recognition Act (“Money-Judgments Recognition Act” or the “Act”). Currently, 25 states, as well as the U.S. Virgin Islands, have adopted the Act and apply its principles in determining the propriety of the enforcement of a foreign judgment. The courts of states that have adopted their own versions of the Act generally recognize foreign judgments on the basis of the principles similar to those of the Act.
The courts of the United States do not give carte blanche recognition to foreign judgments. As first set forth in Hilton, and as now codified in the Act, several limitations have been potentially placed on parties who seek to have foreign judgments enforced in American courts. The satisfaction of certain of these requirements is essential for the granting of recognition. Perhaps the most important of the requirements is that the foreign court or tribunal that entered the judgment operate under a system that provides impartial tribunals and procedures comparable with the requirements of due process of law. Although the procedural mechanisms invoked by the foreign courts need not be identical to those used in American judicial proceedings, they must be sufficiently similar in to American constitutional due process standards as to afford adequate protection of the rights of litigants.