Enforcement of foreign judgments
|Conflict of laws
Private international law
|Substantive legal areas|
In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.
Definition of terms
The "recognition" of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another "foreign" country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit.
In American legal terminology, a "foreign" judgment means a judgment from another state in the United States or from a foreign country. To differentiate between the two, more precise terminology used is "foreign-country judgment" (for judgments from another country) and "foreign sister-state judgment" (from a different state within the United States).
Once a foreign judgment is recognized, the party who was successful in the original case can then seek its "enforcement" in the recognizing country. If the foreign judgment is a money judgment and the debtor has assets in the recognizing jurisdiction, the judgment creditor has access to all the enforcement remedies as if the case had originated in the recognizing country, e.g. garnishment, judicial sale, etc. If some other form of judgment was obtained, e.g. affecting status, granting injunctive relief, etc., the recognizing court will make whatever orders are appropriate to make the original judgment effective.
Foreign judgments may be recognized either unilaterally or based on principles of comity, i.e. mutual deference between courts in different countries.
Between two different States in the United States, enforcement is generally required under the "Full Faith and Credit Clause" (Article IV, Section 1) of the U.S. Constitution, which compels a State to give another State's Judgment an effect as if it were local. This usually requires some sort of an abbreviated application on notice, or docketing. Between one State in the United States, and a foreign country, Canada, for example, the prevailing concept is comity. The Court in the United States, in most cases, will unilaterally enforce the foreign judgment, without proof of diplomatic reciprocity, either under judge-made law or under specific statutes.
Recognition will be generally denied if the judgment is substantively incompatible with basic legal principles in the recognizing country. For example, US courts now, in accordance with the August 2010 Speech Act, not permit enforcement of foreign libel judgments in cases (e.g. based on libel) unless the foreign country protects free speech to the same extent as the U.S. Constitution does in the First Amendment, etc.
Exercise of jurisdiction in recognition cases
If the country that issued the judgment and the country where recognition is sought are not parties to the Hague Convention on Foreign Judgments in Civil and Commercial Matters (presently only ratified by Albania, Cyprus, Kuwait, the Netherlands and Portugal ), the Brussels regime (all European Union countries, as well as Iceland, Norway and Switzerland) or a similar treaty or convention providing for the routine of registration and enforcement between states, the courts of most states will accept jurisdiction to hear cases for the recognition and enforcement of judgments awarded by the courts of another state if the defendant or relevant assets are physically located within their territorial boundaries. Whether recognition will be given is determined by the lex fori, i.e. the domestic law of the court where recognition is sought, and the principles of comity. The following issues are considered:
- Whether the foreign court properly accepted personal jurisdiction over the defendant;
- Whether the defendant was properly served with notice of the proceedings and given a reasonable opportunity to be heard which raises general principles of natural justice and will frequently be judged by international standards (hence, the rules for service on a non-resident defendant outside the jurisdiction must match general standards and the fact that the first instance court's rules were followed will be irrelevant if the international view is that the local system is unjust);
- Whether the proceedings were tainted with fraud; and
- Whether the judgment offends the public policy of the local state.
There is a general reluctance to enforce foreign judgments which involve multiple or punitive damages. In this context, it is noted that the U.S. is not a signatory to any treaty or convention and there are no proposals for this position to change. When it comes to seeking the enforcement of U.S. judgments in foreign courts, many states are uncomfortable with the amount of money damages awarded by U.S. courts which consistently exceed the compensation available in those states. Further, the fact that the U.S. courts sometimes claim extraterritorial jurisdiction offends other states' conceptions of sovereignty. Consequently, it can be difficult to persuade some courts to enforce some U.S. judgments. The Hague choice of court convention provides for the recognition of judgement given by the court chosen by the parties in civil and commercial cases in all other parties to the convention. The convention has as of 2013 not entered into force. Regarding maintenance obligations, the Hague Maintenance Convention (in force between Albania, Bosnia and Herzegovina and Norway), provides for recognition of all kinds of maintenance related judgements (including child support).
Enforcement of foreign judgments in the U.S.
If the time to appeal in the court of origin has lapsed, and the judgment has become final, the holder of a foreign judgment, decree or order may file suit before a competent court in the U.S. which will determine whether to give effect to the foreign judgment. A local version of the Uniform Foreign Money Judgments Recognition Act applies in most states, for example in California. 13 U.L.A. 149 (1986).
A judgment rendered in a "sister" state or a territory of the U.S. is also referred to as a "foreign judgment." 47 states, the District of Columbia, Northern Mariana Islands and the Virgin Islands have adopted the Uniform Enforcement of Foreign Judgments Act, 13 U.L.A. 261 (1986), which requires the states and the territories to give effect to the judgments of other states and territories, if an exemplified copy of the foreign judgment is registered with the clerk of a court of competent jurisdiction along with an affidavit stating certain things. The only U.S. states which have not adopted the Uniform Enforcement of Foreign Judgments Act are California, Massachusetts and Vermont. Legislation was introduced in Massachusetts in 2012 (Bill H.4268) to adopt the Uniform Enforcement of Foreign Judgments Act.
New York State and Connecticut are two of a small minority of U.S. jurisdictions that does not simply allow a judgment creditor to file a foreign judgment from a sister state if the judgment was obtained by default (meaning the other side never showed up for to contest its entry in the other state by, for example, defending himself at trial) or the judgment was obtained by confession (meaning the other side signed paperwork allowing a judgment to be entered against him). Instead, a party wishing to domesticate the foreign default judgment or foreign judgment obtained by confession must bring another action in New York State "on the judgment" where the relief sought is to have the foreign judgment domesticated in New York State. Moreover, a quicker "motion-action" procedure is available in New York where the owner of the foreign default judgment/judgment by confession files a summons and notice of motion for summary judgment in lieu of complaint.
When seeking to enforce a judgment in or from a state that has not adopted the Uniform Act, the holder of the judgment files a suit known as a "domestication" action. Since the full faith and credit clause of the U.S. constitution requires that states honor the judgments of other states, the domestication of a judgment from another state is generally a formality, even in the absence of the expedited procedure under the UEFJA.
To solve the problem of libel tourism, the SPEECH Act makes foreign libel judgments unenforceable in U.S. courts, unless those judgments are compliant with the U.S. First Amendment. The act was passed by the 111th United States Congress and signed into law by President Barack Obama.
A state may not enforce a foreign-country judgment in the following cases:
- The judgment was not rendered by an impartial tribunals under procedures compatible with the requirements of due process of law;
- The foreign court did not have personal jurisdiction over the defendant;
- The foreign court did not have jurisdiction over the subject matter;
- The defendant did not receive notice of the proceedings in sufficient time to enable him to defend;
- The judgment was obtained by fraud;
- The judgment is repugnant to the public policy of the state where enforcement is sought;
- The judgment conflicts with another final and conclusive judgment;
- The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute was to be settled;
- In the case of jurisdiction based only on personal service, the foreign court was an inconvenient forum for the trial; or
- The judgment seeks to enforce the revenue and taxation laws of a foreign jurisdiction.
Enforcement of foreign arbitration awards in the U.S.
Arbitration awards enjoy the protection of special treaties. The U.S. is a signatory to international conventions regulating the enforcement of arbitration awards, viz, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 UST 2517; TIAS 6997; 330 UNTS 3, and the Inter-American Convention on International Commercial Arbitration, 14 I.L.M. 336 (1975). Ratified treaties in the U.S. are considered "supreme law of the land".
- Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters
- Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
- Uniform Foreign-Country Money Judgments Recognition Act
- 4 N. Mar. I. Code 4401-08 (2010)
- NY CPLR Article 53