Anaya Nolan
Foreign laws can be enforced in the US under certain circumstances. While the US is not a party to any treaty on the recognition and enforcement of foreign judgments, and there is no federal law governing foreign judgments, most states have adopted versions of the Uniform Foreign-Country Money-Judgments Recognition Act of 1962 and 2005. These Acts establish the requirements for enforcing court orders from other countries, and they apply to judgments denying or granting the recovery of money. For a foreign civil judgment for a sum of money to be enforceable in a US court, it must be final, conclusive, and enforceable in its country of origin.
| Characteristics | Values |
|---|---|
| Recognition of foreign judgments | The US is not a party to any treaty on the recognition and enforcement of foreign judgments, nor is there a federal, nationwide law governing foreign judgments. |
| Enforcement of foreign judgments | There is no US federal law or nationwide standard for enforcing foreign judgments. However, courts in all 50 states, the District of Columbia, Puerto Rico, and the US Virgin Islands will recognize and enforce foreign judgments in certain circumstances. |
| Uniform Acts | Most states have enacted a version of the Uniform Foreign Money Judgments Recognition Act of 1962 (the "1962 Uniform Act") or its 2005 revision, the Uniform Foreign-Country Money Judgments Recognition Act ("2005 Uniform Act"). |
| Grounds for non-recognition | The Uniform Acts and the Restatement (reflecting common-law practice) set forth similar mandatory and discretionary grounds for non-recognition, including subject-matter jurisdiction, insufficient notice, conflict with public policy, and conflict with another final and conclusive judgment. |
| Requirements for recognition | A foreign judgment qualifies for recognition and enforcement in the US unless it meets the grounds for non-recognition. It must be final, conclusive, and enforceable within the issuing country. |
| Exceptions | The SPEECH Act is an exception to states controlling the enforcement and recognition of foreign defamation judgments. Arbitration awards receive more favorable treatment than foreign judgments due to the US's participation in international conventions. |
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What You'll Learn
Foreign civil monetary judgments
The requirements for recognition of foreign judgments include the order being conclusive, final, and enforceable within the issuing country. The US may stay a suit requesting recognition if an appeal is pending in the issuing country. A foreign judgment qualifies for recognition and enforcement in the US unless it meets the grounds for non-recognition, which may be mandatory or discretionary. Non-money judgments, such as those that grant declaratory or injunctive relief, are excluded from coverage by the Uniform Acts, as are judgments for taxes, fines, or other penalties.
Certain types of foreign arbitration awards are enforceable under treaties, such as the New York and Panama Conventions, which require US courts to honour an agreement to arbitrate and the resulting award, and the ICSID Convention, which establishes the legal framework for the settlement of investment arbitrations between foreign investors and sovereign states. Additionally, the SPEECH Act of 2010 is the only exception to states controlling the enforcement and recognition of foreign defamation judgments.
In terms of enforcement, the foreign judgment must be a pecuniary judgment for a specified sum, and the foreign court that issued the judgment must have had jurisdictional competence over the subject matter or defendant. The foreign court's jurisdiction is assessed using tests specific to the country, such as the presence of the defendant in the jurisdiction or their submission to the foreign court.
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Recognition and enforcement
The two recognition acts that apply to judgments denying or granting the recovery of money are the Uniform Foreign-Country Money-Judgments Recognition Act of 1962 and the Uniform Foreign Country Money Judgments Recognition Act of 2005. As of March 2022, 28 states and the District of Columbia have adopted the 2005 Act, nine states utilize the 1962 Act, and 13 states use state common law and the Supreme Court's opinion in Hilton v. Guyot, 159 U.S. 113 (1895) for making determinations.
The Uniform Acts and the Restatements (reflecting common-law practice) generally set forth similar mandatory and discretionary grounds for non-recognition. The burden of showing that one or more of the grounds for non-recognition applies typically lies with the party resisting recognition and enforcement. The requirements for recognition include the order being final, conclusive, and enforceable within the issuing country. A foreign judgment qualifies for recognition and enforcement in the US unless it meets the grounds for non-recognition.
The Restatement and the Uniform Acts generally provide that, to be enforceable in a US court, a foreign civil judgment for a sum of money must be final, conclusive, and enforceable in its country of origin. A judgment is final when it is not subject to any further proceedings in the rendering foreign court other than execution, though it may still be subject to appeals in other courts in the country of origin. Conclusive means the judgment has been given effect as between the parties regarding their respective legal rights and obligations.
Non-money judgments, such as those that grant declaratory or injunctive relief, are excluded from coverage by the Uniform Acts, as are judgments for taxes, fines, or other penalties, or judgments "for divorce, support, or maintenance, or other judgment [s] rendered in connection with domestic relations". However, the Restatement (Third) of Foreign Relations Law § 481(1) has a broader sweep than the Uniform Acts and is persuasive authority in many states. It provides that foreign judgments "establishing or confirming the status of a person, or determining interests in property" are also entitled to recognition.
The US is not a party to any treaty on the recognition and enforcement of foreign judgments. However, it is a party to several international agreements involving the recognition and enforcement of foreign arbitration awards, including the New York Convention, the Panama Convention, and the ICSID Convention. As a result, foreign arbitration awards receive more favorable treatment than foreign judgments.
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Uniform Acts and Restatements
The United States is not a party to any treaty on the recognition and enforcement of foreign judgments, nor are there federal laws governing foreign judgments. However, most states have adopted versions of the Uniform Foreign-Country Money-Judgments Recognition Act of 1962 and the Uniform Foreign Country Money Judgments Recognition Act of 2005. These uniform acts do not apply to specific monetary decisions or non-money judgments, such as those granting declaratory or injunctive relief, judgments for taxes, fines, or other penalties, or judgments related to domestic relations.
The phrase "Uniform Laws" can be misleading as it suggests a level of standardisation that may not exist in practice. Upon approval by the National Conference, a Uniform Law is not automatically enacted into law in any state in the US. Instead, it is a legislative proposal addressed to fifty state legislatures, and variations often occur during the adoption process. The Uniform Law approach has been most successful in the field of commercial and business law, with the Uniform Commercial Code now in effect in some version in nearly all US jurisdictions.
The Uniform Law Commission, also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL), is a non-governmental body formed in 1892 to promote uniformity in state laws. The Conference oversees the preparation of proposed laws, known as "Uniform Laws", which the states are encouraged to adopt. To date, the Commissioners have approved more than two hundred uniform laws, of which more than 100 have been adopted by at least one state. However, only a few have been widely adopted, and variations are common, with states rarely adopting Uniform Laws verbatim.
Restatements of the law, on the other hand, are highly respected secondary sources issued by the American Law Institute, a prestigious, invitation-only group of judges, law professors, and lawyers. Restatements aim to provide clear formulations of common law and its statutory elements, reflecting the law as it presently stands or might plausibly be stated by a court. They are persuasive authority and are often cited by courts, but they do not carry the weight of binding precedent.
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Non-recognition grounds
Recognition of foreign country judgments in the US is a complex area of law that lawyers and their clients are increasingly dealing with due to the rise in transnational litigation. The US is not a party to any international treaty or federal statute that governs the recognition of foreign court judgments. Therefore, recognition of foreign court judgments is primarily a matter of state law. Each state has its own statute or a set of common law principles that govern the recognition of foreign court judgments.
The two recognition acts that apply to judgments denying or granting recovery of money are the Uniform Foreign-Country Money-Judgments Recognition Act of 1962 and the Uniform Foreign Country Money Judgments Recognition Act of 2005. Most states and the District of Columbia have adopted versions of these Acts. The Uniform Acts establish grounds for non-recognition, which may be mandatory or discretionary. When courts determine a discretionary ground for denial, they usually deny recognition unless the foreign legal process should have established the same grounds.
The following are grounds for non-recognition of foreign laws in the US:
- System-Wide Absence of Impartiality and Due Process: Foreign judgments will not be recognized if they are rendered under a judicial system that does not provide impartial tribunals or procedures compatible with due process. This does not refer to a specific case but rather the foreign judicial system as a whole. The procedures of the foreign judicial system must be compatible with the requirements of due process, even if they are not identical to the US system.
- Corruption: Courts may refuse recognition if there is substantial doubt about the integrity of the rendering court with respect to the judgment. This includes cases of corruption, such as bribery of the foreign judge, that impact the judgment rendered.
- Public Policy: US courts may refuse to recognize foreign judgments that contravene federal or state public policy. This includes judgments that undermine the public interest, public confidence in the administration of law, or security for individual rights of personal liberty or private property.
- Conflict with US Constitutional Principles: US courts will generally refuse to recognize foreign judgments that run contrary to US constitutional principles.
- Lack of Personal Jurisdiction: A foreign judgment is not conclusive in a US court if the foreign court did not have personal jurisdiction over the defendant.
- Non-Money Judgments: Non-money judgments, such as those granting declaratory or injunctive relief, are excluded from coverage by the Uniform Acts. This includes judgments for taxes, fines, or other penalties, as well as judgments for divorce, support, or maintenance, or other judgments rendered in connection with domestic relations.
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Foreign arbitral awards
The United States is a party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention. This convention, which has been ratified by 158 countries, aims to establish common legislative standards for the recognition and enforcement of foreign arbitral awards in international commercial disputes.
In the US, the New York Convention has been incorporated into federal law through the Federal Arbitration Act (FAA). This means that foreign commercial arbitral awards can be enforced in US courts. To do so, the award holder must present an authentic copy of the award to the court. The award will then be recognised and enforced unless the losing party can establish grounds for non-recognition under Article V of the New York Convention. These grounds include:
- The arbitration agreement was invalid.
- The losing party was not properly notified of the arbitral proceedings.
- The award goes beyond the scope of the submission to arbitration.
- The tribunal composition was improper.
- The award has been set aside or suspended by a competent authority in the country where it was made.
- The subject matter of the dispute cannot be settled by arbitration under that country's law.
- Award enforcement would be contrary to public policy.
It is important to note that US courts interpret the grounds for non-recognition narrowly, and as a result, they frequently reject attempts by losing parties to resist the enforcement of foreign arbitral awards.
In addition to the New York Convention, the US is also a party to other conventions that facilitate the enforcement of foreign arbitral awards, such as the Inter-American Convention on International Commercial Arbitration (Panama Convention) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).
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Frequently asked questions
The United States is not a party to any treaty on the recognition and enforcement of foreign judgments, nor is there a federal, nationwide law governing foreign judgments. However, courts in all 50 states and the District of Columbia, Puerto Rico, and the US Virgin Islands will recognize and enforce foreign judgments in certain circumstances.
The requirements for recognition include the order to be conclusive, final, and enforceable within the issuing country. The US may stay a suit requesting recognition if an appeal is pending in the issuing country. A foreign judgment qualifies for recognition and enforcement in the US unless it meets the grounds for non-recognition.
The Uniform Acts and the Restatement (reflecting common-law practice) generally set forth similar mandatory and discretionary grounds for non-recognition. These include:
- The foreign court did not have subject-matter jurisdiction.
- The defendant in the foreign proceeding did not receive notice of the proceedings in sufficient time to allow them to defend themselves.
- The cause of action/claim for relief on which the judgment is based violates the public policy of the US jurisdiction where recognition is sought.
