There is no bilateral treaty or multilateral international convention in force between the United States and any other country on reciprocal recognition and enforcement of judgments. Although there are many reasons for the absence of such agreements, a principal stumbling block appears to be the perception of many foreign states that U.S. money judgments are excessive according to their notions of liability. Moreover, foreign countries have objected to the extra-territorial jurisdiction asserted by courts in the United States. In consequence, absent a treaty, whether the courts of a foreign country would enforce a judgment issued by a court in the United States depends upon the internal laws of the foreign country and international comity. In many foreign countries, as in most jurisdictions in the United States, the recognition and enforcement of foreign judgments is governed by local domestic law and the principles of comity, reciprocity and res judicata (that is, that the issues in question have been decided already.) i
The general principle of international law applicable in such cases is that a foreign state claims and exercises the right to examine judgments for four causes: (1) to determine if the court had jurisdiction; (2) to determine whether the defendant was properly served; (3) to determine if the proceedings were vitiated by fraud; and (4) to establish that the judgment is not contrary to the public policy of the foreign country. While procedures and documentary requirements vary widely from country to country, judgments which do not involve multiple damages or punitive damages generally may be enforced, in whole or in part, upon recognition as authoritative and final, subject to the particulars cited above, unless internal law mandates a treaty obligation. ii iii iv
If eventual enforcement of a United States judgment abroad is envisioned, you may wish to consult foreign legal counsel before you begin filing the complaint, serving process, discovery, trial, etc. v This may help ensure that the foreign requirements for enforcement are not inadvertently violated in the U.S. action. In certain foreign legal systems, a foreign judgment will not be enforced unless it satisfies not only international standards as to jurisdiction, but also internal requirements as to notice, and other requirements. vi Once a judgment has been issued by a court in the United States, formal legal proceedings usually must be initiated in the foreign country by your foreign legal counsel or American counsel licensed to practice in the foreign country. vii viii ix
PERSONAL JURISDICTION: It is fundamental that a court must have personal jurisdiction over a defendant before it can enter a valid judgment imposing a personal obligation on the defendant. Kulko v. Superior Court , 436 U.S. 84 (1978). In Pennoyer v. Neff , 95 U.S. 714 (1878) the Supreme Court set down the basic rule that a personal judgment against a nonresident defendant who was not served within the state, and who did not appear or otherwise assent to the jurisdiction of the court, is invalid. Over the years, however, the Supreme Court has substantially qualified Pennoyer to the extent that, under certain circumstances, a state court may properly acquire personal jurisdiction over a nonresident even though the defendant is not personally served within the forum state, provided the defendant has certain “minimum contacts” with the forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310 (1945). See also, e.g., Hanson v. Denckla , 357 U.S. 235 (1958); Shaffer v. Heitner, 433 U.S. 186 (1977); and World-Wide Volks-Wagen Corp. v. Woodson, 444 U.S. 286 (1980). As noted above, foreign countries may find that the U.S. interpretation of this issue differs from local foreign law, rendering the U.S. judgment unenforceable abroad. For this reason, you may wish to consult local counsel in the foreign country very early in the U.S. proceeding, long before any judgment is rendered.
RETAINING A FOREIGN ATTORNEY: You may wish to consult your local counsel before proceeding with the expensive task of translating and authenticating documents for a foreign enforcement proceeding. The Department of State, Office of American Citizens Services can provide lists of attorneys in foreign countries who have expressed a willingness to represent U.S. citizens. See also our flyer Retaining a Foreign Attorney available on our home page on the Internet.
See also: Digest of U.S. Practice in International Law, Office of the Legal Adviser, Department of State, 1977, 993-994; Digest of U.S. Practice in International Law, Office of the Legal Adviser, Department of State, 1976 , 316-318; Digest of U.S. Practice in International Law, Office of the Legal Adviser, Department of State, 1975, 340-342; Whiteman, Digest of International Law, Department of State, Office of the Legal Adviser, Chapter XIV, Section 14 Volume 6, pages 225-253 (1968).
SERVICE OF PROCESS: For information about service of process abroad, obtain a copy of our flyers Hague Service Convention , U.S. Department of State Circular on Operations of the Inter-American Convention – In Progress, Service of Process Abroad and country-specific flyers through our home page on the Internet.
ENFORCEMENT OF A FOREIGN JUDGMENT IN THE U.S.: Enforcement of judgments issued by foreign courts in the United States is governed by the laws of the states. Enforcement cannot be accomplished by means of a letter rogatory in the U.S. under 28 U.S.C. Sec. 1782. See the Secretary of State”s circular diplomatic note of 2/3/76 to the Chiefs of Mission in Washington, D.C., Digest of United States Practice in International Law, 1976, U.S. Department of State, Office of the Legal Adviser, 306, 311 at 309 (1977). Under U.S. law, an individual seeking to enforce a foreign judgment, decree or order in this country must file suit before a competent court. The court will determine whether to give effect to the foreign judgment. As with most legal proceedings, it is necessary to retain legal counsel to conduct the suit. x xi xii xiii See also the Uniform Enforcement of Foreign Judgments Act (13 U.L.A. 261 (1986) and the Uniform Foreign Money-Judgments Recognition Act, 13 U.L.A. 149 (1986). But see , Ackermann v. Levine, 788 F. 2d 830 (2d Cir. 1986); Matter of Colorado Corp., 531 F. 2d 463 (1976); Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624 (1976).
ARBITRATION: There are a number of international agreements in force to which the U.S. is a party on the subject of enforcement of arbitral awards. Inquirers may also wish to consult one of the many treatises on the subject or contact the American Arbitration Association, 140 West 51st St., New York, N.Y. 10020-1203; 212-484-4000, 212-484-4110; fax: 212-765-4874 regarding the operation of these agreements and other issues pertaining to arbitration. xiv xv xvi xvii See , Convention on the Recognition and Enforcement of Foreign Arbitral Awards , 21 UST 2517; TIAS 6997; 330 UNTS 3; Inter-American Convention on International Commercial Arbitration , 14 I.L.M. 336 (1975). See also , 9 U.S.C. 201-208 (Federal Arbitration Act); Digest of United States Practice in International Law, U.S. Department of State, Office of the Legal Adviser, 1974, 761-763; Digest of United States Practice in International Law, U.S. Department of State, Office of the Legal Adviser, 1975, 895-897; Digest of United States Practice in International Law, U.S. Department of State, Office of the Legal Adviser, 1976, 791-792; Digest of United States Practice in International Law, U.S. Department of State, Office of the Legal Adviser, 1979, 1882-1885; Cumulative Digest of United States Practice in International Law, 1981-1988, Vol III, 3709-3718 (1995).
ADDITIONAL INFORMATION: Many of our judicial assistance flyers are also available on the Internet via the Department of State, Bureau of Consular Affairs home page under Judicial Assistance . See also, the Department of State, Office of the Legal Adviser for Private International Law home page for information regarding private international law unification. See also the home pages for many of our embassies . But see, U.S. Department of Commerce, Office of Chief Counsel for International Commerce home page .
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