Sovereignty, Territoriality, and the Enforcement of Foreign Judgments
George A. Rutherglen
University of Virginia School of Law
James Y. Stern
William & Mary Law School
February 1, 2014
Virginia Public Law and Legal Theory Research Paper No. 2014-15
Over the course of the twentieth century, the effect of state boundaries as hard-and-fast limits on judicial and legislative jurisdiction steadily eroded. International Shoe Co. v. Washington stands as a landmark precedent, replacing traditional requirements that the defendant or the defendant’s property be present in the forum state at the outset of litigation with a regime requiring only that the defendant have certain “minimum contacts” with the forum. That case, concerned with personal jurisdiction over a corporation, was consistent with similar transformations elsewhere: personal jurisdiction over natural persons, choice of law, and extraterritorial application of forum statutory law. Altogether, these developments are part of a wider revolution in jurisdictional practices, which began before World War II with Legal Realism and continued into the last decades of the twentieth century.
It may therefore come as something of a shock to discover that strict territorial limits on sovereign power have never been abandoned - in fact, never seem to have been questioned - as an absolute prerequisite for enforcement of judgments. Enforcement of a judgment, and especially a foreign judgment, does not become possible until the defendant or the defendant’s property can be found within the enforcing forum at the onset of enforcement proceedings. The original adjudicating court (conventionally designated F1) might be able to invoke liberal and flexible concepts of judicial and legislative jurisdiction and so reach a wider range of matters than would have traditionally been possible, but the enforcing court (F2) cannot. Put differently, F1 cannot also serve as F2 unless it meets standards of presence and territoriality. Presence of the defendant or the defendant’s property within F2 remains a prerequisite for enforcement of judgments there. Despite a century of erosion and decay in F1, the strict territorial theory remains alive and well in F2. This article seeks to explain the persistence of strict territoriality as a limit on the enforcement of judgments.
Number of Pages in PDF File: 28
Date posted: February 13, 2014