Recognition of Foreign Judicial Systems in U.S. Courts - Part 4 Chapter 7 - 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.
From time to time, United States courts have had to address questions of the extent to which they recognize, or give deference to, the judicial systems of foreign countries. Such questions may arise in various procedural contexts, including enforcement of foreign judgments, motions to dismiss on forum non conveniens grounds, recognition of forum selection clauses, choice of law disputes, determinations as to the admissibility of evidence obtained under foreign procedures and the requisite showing of irreparable injury in preliminary injunction proceedings. These decisions have not followed a uniform approach in their analysis of these matters, which involve both comity and practical reality.
Judicial Systems Recognized
In most cases, courts have based their decisions on whether to recognize a foreign country’s judicial system on judicial notice, thereby avoiding adversar-ial presentations concerning the impartiality or procedural fairness of the courts in question. For example, in Hunt v. BP Exploration Co., Hunt, an American, sought a declaration that an English judgment obtained by BP was not entitled to recognition, arguing that it violated public policy and that the English court lacked jurisdiction over indispensable parties. Without engaging in extensive analysis, the court denied the relief, holding that the courts in England “receive a special deference in our courts” and are “entitled to a more ministerial, less technocratic, recognition decisional process.” In the same vein, the United States Court of Appeals for the Ninth Circuit held, without analysis, that, since U.S. courts have inherited major portions of their court procedures from the United Kingdom, their courts “are hardly in a position to call the Queen’s Bench a kangaroo court.”