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"Recognition and enforcement" refers to the mechanism whereby a local
court compels compliance by a party with a judgment obtained by a
litigant in a foreign judicial proceeding.
1. No extraterritorial effect for local judgments - In most
circumstances, a court's judgment has no direct force or effect outside
the forum's jurisdiction. Consequently, a judgment will have effect in
a foreign jurisdiction only if the courts of such jurisdiction are
willing to provide their assistance by "recognizing" and "enforcing" the
2. "Recognition" - A foreign judgment is "recognized" when a local
court concludes that a particular claim or factual dispute has already
been adjudicated by a foreign court and that such claim or dispute will
not be litigated further.
"Recognition" is therefore similar to the domestic U.S. doctrines of
res judicata ("claim preclusion") and collateral estoppel ("issue
3. "Enforcement" - A foreign judgment is "enforced" when a local court
uses its coercive powers to order the relief granted by the foreign
4. "Recognition" and "enforcement" in the domestic context - The "full
faith and credit" clause of the Constitution (Article IV, Section 1)
requires state courts to recognize valid and final sister state
II. International Conventions
1. The United States is not a party to any international convention
governing the recognition and enforcement of foreign judgments.
* In 1976 the United States and United Kingdom initialed a
"Convention on the Reciprocal Recognition and Enforcement of Judgments
in Civil Matters", 16 I.L.M. 71 (1977), but negotiations over the final
text broke off in 1981.
* The United States participated in the negotiation of the "Inter-
American Convention on the Extraterritorial Validity of Foreign
Judgments and Arbitral Awards", 18 I.L.M. 1224 (1979), but to date has
not signed the treaty (nor is expected to do so in the future).
2. Three multilateral money judgments conventions are, however,
currently in force.
* Brussels Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters, as amended, 29 I.L.M. 1413
(1990) (among EC member states)
* Lugano Convention on Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters, 28 I.L.M. 620 (1989) (among EC and EFTA
* Inter-American Convention on the Extraterritorial Validity of
Foreign Judgments and Arbitral Awards", 18 I.L.M. 1224 (1979) (among OAS
member states). See also Inter-American Convention on Jurisdiction in
the International Sphere for the Extraterritorial Validity of Foreign
Judgments, 24 I.L.M. 468 (1985).
3. At the suggestion of the U.S. delegation, the Hague Conference on
Private International Law agreed in May 1993 to begin work on a
multilateral judgments convention (drafting expected to be completed by
* U.S. motivations for promoting the establishment of a multilateral
a) Although U.S. courts have traditionally been quite liberal in
recognizing and enforcing foreign judgments (i.e., so long as there are
no serious due process violations), U.S. judgments have not received
similar treatment in foreign jurisdictions.
b) With the expansion of international business and increasing
frequency of transnational litigation, the magnitude of the problem is
likely to grow.
III. Enforcing U.S. Judgments Abroad
1. In the absence of an applicable bi- or multilateral convention,
recognition and enforcement is determined in accordance with the
"recognizing" country's domestic law.
* Common requirements for recognition and enforcement:
a) proper notice
b) proper jurisdiction (personal and subject matter)
c) final and binding judgment
d) no violation of "recognizing" country's public policy
2. Common obstacles to recognition and enforcement of U.S. judgments:
a) Lack of jurisdiction. Brazil, Switzerland, and France, for
example, will refuse to enforce a judgment against their nationals
unless there is a "clear indication" that the national intended to
submit to the foreign court's jurisdiction.
b) Special notice procedures. Some "recognizing" countries require
that the foreign litigant serve the "local" party in accordance with
procedures not commonly employed in the United States.
c) Treaty requirement. Several states, including most of the Nordic
countries, the Netherlands, and Saudi Arabia, will refuse to recognize a
foreign judgment absent the existence of a judgments convention between
the "rendering" and "recognizing" jurisdictions.
d) Confusion over the lack of uniformity of U.S. law. Foreign courts
often cannot discern a "U.S. policy" on recognition and enforcement,
i.e., because 51 different approaches exist.
e) Public policy concerns. Foreign courts view such features of U.S.
law as unrestricted jury awards, punitive and treble damages actions,
and the use of long-arm statutes as contrary to their own public policy.
3. In certain circumstances, a U.S. party considering an action in a
U.S. court against a foreign party may be better served by:
(a) arbitrating the claim, particularly if the foreign party is
resident in a state that is a signatory to the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards (commonly
referred to as the "New York Convention") (See Federal Arbitration Act,
9 U.S.C. Sections 201-208); or
(b) filing suit directly in the foreign jurisdiction.
excepted from 9/93 U.S. Commerce Dept. material
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