Punitive Damages Revisited: Taking the Rationale for Non-Recognition of Foreign Judgments Too Far

Abstract:     
Punitive damages have been a controversial aspect of U.S. law; often criticized both at home and abroad. Neither U.S. law on punitive damages nor the foreign climate regarding their reception has remained static. This article notes the continuing legislative attack on punitive damages in the United States at both the state and federal level, and focuses on recent developments in case law and treaty negotiations concerning the reception of punitive damages abroad.

The article begins with a brief review of the background against which current punitive damages law in the United States continues to operate, followed by consideration of the continuing evolution of U.S. Supreme Court jurisprudence on punitive damages. The Beals case in the Supreme Court of Canada and new uniform Canadian legislation on the enforcement of foreign judgments demonstrate two very different approaches to U.S. punitive damages by foreign courts. The issue is also the focus of Article 11 of the new Hague Convention on Choice of Court Agreements, which offers a much more moderate approach than the Canadian uniform act, which, if widely adopted, would constitute a major step back in terms of predictability in business and judicial relationships.

Keywords: punitive damages, jurisdiction, conflict of laws, Hague Convention on Exclusive Choice of Court Agreements, recognition of judgments, enforcement, exemplary damages

Accepted Paper Series