Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute

Reporters:
Andreas F. Lowenfeld, New York University School of Law, New York, NY
Linda J. Silberman, New York University School of Law, New York, NY

This publication contains a proposed federal statute that would impose uniform standards for recognition and enforcement of foreign judgments throughout the United States. It also includes a comprehensive review of current law and discussion of the constitutional basis for federal legislation on the subject of foreign judgments.

Whether or not the recommended statute is enacted, this publication will help the legal community to understand the challenging issues surrounding foreign judgments; it may also influence executive policy and judicial decision-making. The recommended federal legislation authorizes negotiation of agreements with foreign countries pertaining to reciprocal enforcement of each others’ judgments, and offers a number of incentives to foreign countries and their courts to recognize and enforce judgments emanating from the United States. The legislation, which fits within the constitutional authority of Congress, would be consistent with the needs of a legal and commercial community ever more engaged in international transactions and their inevitable concomitant, international litigation.

It was originally expected that this project would take the form of legislation implementing the General Convention on International Jurisdiction and the Effects of Foreign Judgments in Civil and Commercial Matters drafted by The Hague Conference on Private International Law. Because of the Convention's uncertain outcome, however, a proposed federal statute independent of the Convention was drafted.

The proposed statute, entitled “The Foreign Judgments Recognition and Enforcement Act,” contains 13 sections, which are presented initially without Comments and then again with Comments and Reporters’ Notes. Section 1 covers scope and definitions, § 2 deals with recognition and enforcement generally, and § 3 explains the effect of a foreign judgment in the United States. Section 4 discusses claim and issue preclusion and the effect of a challenge to jurisdiction in the court of origin. Section 5 covers nonrecognition of a foreign judgment, § 6 sets forth bases of jurisdiction not recognized or enforced, and § 7 deals with the reciprocal recognition and enforcement of foreign judgments. Section 8 discusses the jurisdiction of courts in the United States, § 9 sets forth the means of enforcement of foreign judgments, and § 10 covers the registration of foreign money judgments in federal courts. Section 11 deals with the declination of jurisdiction when a prior action is pending, § 12 delineates provisional measures in aid of foreign proceedings, and § 13 discusses foreign orders concerning litigation in the United States.

The most controversial issue in this project was whether to require reciprocity from countries whose judgments come before an American court for enforcement. The membership of the Institute was divided on whether a federal statute concerning foreign judgments should contain a reciprocity requirement, but a substantial vote in two successive Annual Meetings favored reciprocity, subject to the burden of proof being on the party resisting recognition or enforcement on the basis of lack of reciprocity. The recommended reciprocity requirement and its accompanying explanation is the result of imaginative and sophisticated work by the Reporters.

149 pages, 2006, #1REFJOT