A Practitioner's Guide to Enforcement of Foreign Country Money Judgments in the United States

• Author: Edward H. Davis Jr. and Annette Escobar
• Pages: 161-183

6

HINTRODUCTION

This chapter seeks to assist counsel attempt ing to enforce a foreign countr y

money judgment in the Un ited States. It summarize s the law of the United States

on the enforcement of foreig n country money judgments and prov ides a practical

guide to en forcing such judgments.

In a judgment creditor’s ideal world, enforci ng a foreign country money

judgment in the United States would be just as easy as enforcing it in the home

country in wh ich the judgment was rendered. But is that really the ca se? Unfor-

tunately, the answer is no. A s discussed on pages 65–66, while U.S. courts g en-

erally recognize the judgments of foreign countries, there is inherent hesitation

in enforcing such judgments, the degree of which depends on such variables as

the laws of the foreign country that rendered the judgment, the country i n

which the foreig n judgment is being enforced, and t he procedural history of the

foreign proceedi ngs.

. Althou gh a discussion rega rding the enforce ment of foreign country non monetary

judgments is be yond the scope of this chapter, many of t he same laws and principles d is-

cussed here wi ll apply.

CHAPTER 12

A Practitioner’s Guide to

Enforcement of Foreign

Country Money Judgments

in the United States

Edward H. Davis Jr. and Annette Escobar

Leg23577_12_ch12_161-184.indd 161Leg23577_12_ch12_161-184.indd 161 1/14/14 9:07 AM1/14/14 9:07 AM

62 CHAPTER 2

HA SUMMARY OF THE LAW OF THE UNITED STATES ON THE

ENFORCEMENT OF FOREIGN COUNTRY MONEY JUDGMENTS

General Background

Understandi ng U.S. law on the enforcement of foreig n country money judg-

ments is complicated by the fact that there is no u niformly applicable law of the

United States in th is area. While t he United States recently became a sig natory to

the Hague Convention on Choice of Court Agreements (the Choice of Court

Convention), which specif ically deals wit h the manner of enforcement of foreign

judgments,2 as of January 202, the Choice of Court Convention otherwise has

been signed on ly by Mexico and the Europea n Community, excepting De nmark.

Only Mexico has ratified it. In the absence of ratif ication of the Choice of Court

Convention, there is no un iformly applicable law of the United St ates in this area.

Moreover, there is no federal statute that governs the enforcement of foreign

country money judg ments, although there are ongoing e fforts to pass such legis -

lation.3 Instead, the enforcement of foreign countr y money judgments generally

is governed by state statutory and common law, regardless of whether the for-

eign countr y money judgment is enforced in st ate or federal court.4 Further com-

plicating matters is that state law d iffers somewhat f rom state to state, although

most states have adopted the Uniform Foreign Money-Judgments Recognition

Act (UFMJ RA), or slightly modif ied versions thereof, and com mon law decisions

are essentia lly consistent in most states.

2. Hag ue Convention on Choice of Court Agreement s, www.hcch.net/index_en

.php?act=conventions.text &cid=98 (June 30, 995). For a general d iscussion on the

Choice of Court Convention, se e Louise E. Teitz, The Hague Cho ice of Court Convention:

Validating Party Auto nomy and Providing and Al ternative to Arbitrat ion, 53 A. J. C. L.

543, 55 (2005).

3. As a resu lt of its International Ju risdiction and Jud gments Project, on September 30,

2002, the A merican Law Instit ute (ALI) published Counc il Draft No. 2 of a proposed

federal law relat ing to the enforcement and r ecognition of foreign cou ntry judgments

to be titled “The Fore ign Judgments Recogn ition and Enforcement Act.” The Foreig n

Judgments Recog nition and Enforcement Ac t, International Jur isdiction and Judg ments

Project (Tentative Draf t No. 2, 2002). The ALI issued proposed f ederal statutes in 2 005

and 2006 as we ll. See Recognition and En forcement of Foreign Judgment s: Analysis and

Proposed Federa l Statute (2005); Recognition and E nforcement of Foreign Judgment s:

Analysi s and Proposed Federal Stat ute (2006). Numerous other attempt s have been

underta ken over the years. However, Congress has yet to enac t legislation adopting a ny

such measures.

4. 9 A. J . 3, Invalidity of Judgment of Court of Fore ign Country § 5 (2002) (“It is gener-

ally held th at state law governs the recogn ition and enforcement of foreig n country

judgments”); see also Er ie R.R. Co. v. Thompkins, 304 U.S. 64, 78 (938)

(in a diversit y action, federal cour ts must apply the law of the forum st ate).

Leg23577_12_ch12_161-184.indd 162Leg23577_12_ch12_161-184.indd 162 1/14/14 9:07 AM1/14/14 9:07 AM