Against Systemic Review of Foreign Judgments

Abstract

When a court in the United States is asked to recognize and enforce a foreign judgment, should it focus only on the specific judgment at issue, or should it also consider, more generally, the quality of the foreign court system that produced the judgment? The 2005 Uniform Foreign-Country Money Judgments Recognition Act, adopted in twenty-nine states, provides that a court may not recognize a foreign-country judgment if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” Its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act, still in force in nine states, contains a similar provision. Yet very few decisions have denied recognition of foreign judgments based on systemic lack of due process.

This essay argues against systemic review as a ground for denying recognition to foreign-country judgments. Part I discusses the origins of this ground and the rarity of U.S. decisions relying on it. Part II explains the implications of the recent Shanghai Yongrun case in New York for the recognition of Chinese judgments in the United States and for U.S. judgments in China. Part III considers whether courts should rely on State Department Country Reports to decide if a country lacks impartial tribunals and procedures compatible with due process under the Uniform Acts. Part IV argues that case-specific grounds for non-recognition are sufficient to police foreign judgments, rendering the systemic ground unnecessary.