Recognition and Enforcement of Foreign Judgments in U.S. Courts: Problems and Possibilities
95 Pages Posted: 21 Aug 2013
Date Written: August 21, 2013
One of the core consequences of globalization has been the rapid increase in transnational litigation and the associated need to enforce judgments across national borders. This phenomenon has created a number of problems in cases involving U.S. parties, since foreign judgments brought to the United States do not fall within the confines of the Full Faith and Credit Clause of the U.S. Constitution. Rather than following the simple, easy and inexpensive judgment-recognition process used in domestic disputes, U.S. and foreign parties seeking to enforce a foreign judgment in the United States must adhere to a costly, complicated and largely unpredictable process that is governed almost entirely by state rather than federal law.
The current situation creates difficulties not only as a matter of civil procedure but also as a matter of constitutional and regulatory law. International trade and foreign affairs also suffer when a country fails to recognize and enforce foreign judgments in a predictable and principled manner.
The American Law Institute (ALI) has responded to the challenges in this area of law by drafting a proposed federal statute intended to overcome the various problems relating to enforcement of foreign judgments in the United States. However, the complexity of this area of law has precluded detailed discussion of the ALI recommendation to date.
Forthcoming revisions to the Restatement of Foreign Affairs make enforcement of foreign judgments an issue of critical and imminent importance. This Article fills the gap in critical commentary by undertaking a detailed analysis of the law relating to the recognition and enforcement of foreign judgments in the United States. The discussion not only considers the current enforcement regime but also provides a comprehensive assessment of the ALI’s proposed statute. In so doing, this Article provides courts, commentators and Congress with a full understanding of the various problems arising under existing law as a matter of practice and policy while also helping lawmakers determine whether and to what extent the ALI proposed statute meets its enunciated goals. Parties based in the United States and abroad also benefit from an increased understanding of the problems and possibilities relating to the recognition and enforcement of foreign judgments in U.S. state and federal courts.
Keywords: civil procedure, foreign judgments, foreign money judgments, enforcement, recognition, Full Faith and Credit, preclusion, legislation, international litigation, American Law Institute, Uniform Foreign-Country Money Judgments Recognition Act, Uniform Foreign Money-Judgments Recognition Act
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