Recognition and Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought?

53 Pages Posted: 5 Aug 2015 Last revised: 17 Jun 2016

See all articles by Linda Silberman

Linda Silberman

New York University School of Law

Aaron D. Simowitz

Willamette University College of Law; The Classical Liberal Institute at NYU School of Law

Date Written: August 4, 2015

Abstract

In Daimler AG v. Bauman, the Supreme Court confirmed what it had only hinted at previously — that general jurisdiction over a corporation was limited to a state that could be regarded as its “home.” In doing so, the Court brought the United States closer to the rest of the world in its approach to general jurisdiction. What may have been overlooked, however, is the impact of Daimler on actions brought to recognize and enforce foreign country judgments and foreign arbitral awards if the Daimler standard is applied in that context. Some courts have already done so. Professors Silberman and Simowitz offer an overview of the present jurisdictional regimes for recognition and enforcement actions with respect to both foreign judgments and arbitral awards. Their own analysis concludes that a jurisdictional nexus should be required for recognition and enforcement but that the context of recognition and enforcement presents unique differences from a plenary action. Thus, they argue that Daimler needs to be tailored to fit such actions. Professors Silberman and Simowitz also examine various alternative bases of jurisdiction — property-based jurisdiction, specific jurisdiction, and consent — that may be pressed into service if Daimler is extended to recognition and enforcement actions and find both promise as well as limits in those alternatives.

Keywords: international litigation, international arbitration, commercial arbitration, arbitration, jurisdiction, judgments, recognition, enforcement, civil procedure, international law, New York Convention

Suggested Citation

Silberman, Linda and Simowitz, Aaron D., Recognition and Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought? (August 4, 2015). 91 N.Y.U. L. Rev. 344 (2016); NYU School of Law, Public Law Research Paper No. 15-29; NYU Law and Economics Research Paper No. 15-13. Available at SSRN: https://ssrn.com/abstract=2639820 or http://dx.doi.org/10.2139/ssrn.2639820

Linda Silberman

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6204 (Phone)
212-995-4341 (Fax)

Aaron D. Simowitz (Contact Author)

Willamette University College of Law ( email )

Salem, OR 97301
United States
(503) 370-6840 (Phone)

HOME PAGE: http://willamette.edu/law/faculty/profiles/simowitz/index.html

The Classical Liberal Institute at NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: http://www.classicalliberalinstitute.org/who-we-are/

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