Enforcement of Foreign Judgments: Iran - Part 4 Chapter 1 - 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.
The enforceability of judgments outside the jurisdictions in which they are granted is a subject which concerns lawyers whose clients or adversaries are from countries outside the United States. Money judgments, to have any value, must be enforceable against assets. A defendant’s assets, however, may not be located in the jurisdiction in which the plaintiff originally brought suit. How effective plaintiffs’ counsel may be in obtaining transnational satisfaction of judgments will depend, to a great extent, on how well they understand the procedural rules of the jurisdictions where they will be attempting to obtain enforcement. Conversely, defendants’ counsel need a similar understanding in order to advise clients whether to defend in the original forum, or to accept a default judgment and defend elsewhere against its enforcement.
Many considerations affect the advice to be given to a client involved as a defendant in a foreign action. These considerations include such factors as the merits of the case, the solvency of the defendant, the countries involved and the location(s) of the defendant's assets. The applicable law of the countries involved, both as adjudicating and as enforcing forums, is also a paramount consideration. Sometimes, the foreign country in which a judgment has been rendered has a legal system which differs radically from that of the United States and, indeed, from those of most other nations with which we have had legal relationships. A case in point is Iran. The Iranian government is currently engaged in extensive litigation with many United States companies and with the United States government itself. This chapter discusses the kinds of judgment enforcement problems which may arise in cases involving the Iranian government and its controlled entities.
The government of Iran has reportedly commenced law suits in the courts of Iran against sixty to seventy United States individuals and corporations. Many of these United States defendants had already brought claims against Iran in the Iran-United States Claims Tribunal at The Hague. However, some of them have contracts with Iranian entities which provide, in one way or another, that disputes are subject to the jurisdiction of the courts of Iran. The Hague Tribunal, pursuant to the international agreements which established it, does not generally have jurisdiction over claims arising under contracts containing valid forum selection clauses designating the Iranian courts as the exclusive forum for resolving disputes.
Several test cases were recently decided in a manner that may effectively bar certain claimants from access to the Tribunal. Thus, some of the claimants that have been sued in Iran may also be barred from the Tribunal. Others that have been sued in Iran on certain claims may be litigating different claims—or even the same ones, in the form of Iran’s counterclaims—before the Tribunal. The significance of these suits in Iran, whether or not related to claims before the Tribunal, depends in large part on how and where the resulting judgments might be enforced.