Whose Law of Personal Jurisdiction? The Choice of Law Problem in the Recognition of Foreign Judgments
61 Pages Posted: 6 May 2016 Last revised: 11 Oct 2016
Date Written: May 5, 2016
It is black-letter law that in order to recognize and enforce a foreign judgment, the rendering court must have had personal jurisdiction over the defendant. While the principle is clear, it is an open question as to whose law governs the question of personal jurisdiction: that of the rendering court or that of the recognizing court. In other words, is the foreign court’s jurisdiction over the defendant governed by foreign law (the law of F1) or domestic law (the law of F2)? Or some combination thereof? While courts have taken a number of different approaches, it seems that many courts regard foreign law as relevant to the question of whether the foreign court possessed personal jurisdiction over the defendant.
In this Article, I argue that U.S. courts should not be looking to foreign law (in whole or in part) to determine whether a foreign court had jurisdiction over the defendant in the original action. I present five arguments in support of this contention: there is no statutory authority pointing to the application of foreign law; American courts are not well-positioned to be applying foreign jurisdictional law; re-examining assertions of jurisdiction under foreign law violates international comity; an examination of foreign law is usually unnecessary because jurisdiction is also assessed according to U.S. standards; and U.S. courts do not do a good job applying foreign jurisdictional law. Instead, I argue that courts should apply American law to assess whether the foreign court was jurisdictionally competent. This, in turn, begs the question: What is “American” law? I maintain that courts should apply broad federal standards of jurisdiction (not state-based ones) to determine whether the rendering court had personal jurisdiction over the defendant.
This Article also looks closely at two particular areas of jurisdiction law that are particularly complicated as they relate to the choice of law issue: submission and notice. With respect to submission, U.S. courts seem to be unclear as to whose law applies to assess whether a defendant in a foreign action submitted to the jurisdiction of the foreign court. In particular, many U.S. courts defer to foreign courts’ interpretations as to whether the acts of the defendant constituted submission. With respect to notice, there is a lack of clarity as to how notice relates to personal jurisdiction in the context of the recognition and enforcement of foreign judgments. Here too, there is confusion as to whose law of notice applies in assessing whether the defendant received adequate notice of the proceeding. Consistent with the argument above, this Article takes the position that U.S. standards (and not foreign ones) should ultimately guide the submission and notice inquiries in the recognition context.
Since much of the law in this area is codified in either the 1962 Uniform Foreign Money-Judgments Recognition Act or the 2005 Uniform Foreign-Country Money Judgments Recognition Act, I propose concrete changes to the language of the Uniform Acts that would address the choice of law problem in the recognition of foreign judgments and would clarify the intersection between notice and personal jurisdiction in the Uniform Act.
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