Enforcement of Judgments, Systematic Calibration, and the Global Law Market
Theoretical Inquiries in Law, Vol. 23, No.1, 2022
47 Pages Posted: 19 Jan 2022 Last revised: 20 Jan 2022
Date Written: January 19, 2022
There are important reasons for states to recognize and enforce the judgments of other states’ courts. There are also reasons that may militate against recognition or enforcement of certain foreign judgments, making it appropriate to calibrate or “fine tune” the presumption favoring recognition and enforcement so it is not applied too broadly. Most calibration principles, such as the principle that a judgment from a court lacking jurisdiction should not be recognized, are case-specific. However, one calibration principle that is, to our knowledge, unique to the law of the United States stands out: the principle of systemic calibration, according to which U.S. courts must not recognize or enforce foreign judgments “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”
In this Article, we aim to shed empirical light on how U.S.-style systemic calibration operates in practice. We find that state-of-origin indicator scores related to systemic adequacy are on average higher when U.S. courts recognize or enforce foreign judgments than when they refuse to do so. Moreover, the probability of recognition and enforcement increases as these indicator scores increase. However, in only six of the 587 opinions in our dataset did a court refuse recognition or enforcement based explicitly on the systemic inadequacy ground. Thus, while the level of systemic calibration in U.S. courts is high, it is mostly achieved implicitly. Finally, even judgments from states with low systemic adequacy scores are sometimes recognized or enforced by U.S. courts. These findings lead us to question the need for the systemic inadequacy ground for refusal and conclude that the time is ripe for reconsidering it.
Keywords: Recognition, Enforcement, Foreign Judgments, Conflict of Laws, Private International Law, Transnational Litigation, International Litigation, Judicial Decisionmaking, Empirical Legal Studies, Law Market, Judicial Independence, Rule of Law
Suggested Citation: Suggested Citation