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Harmonisation of Conflict of Law Rules in the US? The Example of Recognition and Enforcement of Foreign Money Judgments

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International Dispute Resolution

Part of the book series: Short Studies in Private International Law ((SSIL))

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Abstract

Where the EU has experienced a wave of harmonisation—Europeanisation—of private international law rules, the same cannot be said for the US. This chapter, which uses recognition and enforcement of foreign money judgments as an example, shows that ‘Americanisation’ of private international law rules is not high on the agenda of the federal legislator. The basis for the law on recognition and enforcement in the US can be found in a case from 1895 and has since developed along the lines of non-binding model Acts, drafted by scholarly organisations. Although most US states have adopted legislation inspired by such model rules and Acts, others still adhere to common law principles, leaving the US with a non-harmonised, non-uniform regime. The latest attempt at harmonisation is a proposed statute of the American Law Institute, dating back to 2005, which has received as a main critique that it proposes a reciprocity condition. Yet, scholars do agree that actual harmonisation of the rules on recognition and enforcement of money judgments in the US will only be beneficial for businesses, private individuals and the country as a whole.

Elsemiek Apers is a legal advisor for the International Council of the Belgian Notariat, Bergstraat 30–32, 1000 Brussels, Belgium. elsemiek.apers@fednot.be. This chapter has been written in a private capacity.

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Notes

  1. 1.

    https://www.census.gov/foreign-trade/balance/c0003.html. Accessed on 12 December 2017.

  2. 2.

    In the US, the term ‘conflict of laws’ is mostly used: this term, however, more literally only refers to a conflict in applicable law, whereas this chapter will focus on recognition and enforcement. Therefore, the term ‘private international law’ will be used.

  3. 3.

    The rules on recognition and enforcement formed part of the Brussels Convention, the first private international law instrument that was drafted by the six members of what would later become the European Union. See in general Dickinson 2015, pp. 1–10; Magnus 2016, pp. 10–23.

  4. 4.

    A rare example that confirms the standard here is ‘The Agreement between the Netherlands and the United States for the enforcement of maintenance (support) obligations’ (Netherlands Treaty Series 2001, 117 and 134), which entered into force in May 2002. Also, the Hague Convention on Choice of Court Agreements contains clauses on recognition and enforcement of judgments rendered on the basis of an exclusive choice of forum agreement.

  5. 5.

    Brand 2013, p. 494.

  6. 6.

    US Constitution Article IV, para 1: “Full Faith and Credit shall be given in each State to public acts, records, and judicial proceedings of every other Sate”. Little 2013, pp. 833–840.

  7. 7.

    Schmitt 2013, p. 487. For a general discussion of this clause, see Sachs 2009, pp. 1201–1279.

  8. 8.

    Singal 2008, pp. 948–949.

  9. 9.

    Story 1834, p. 492.

  10. 10.

    US Constitution Article I.

  11. 11.

    Rosner 2004, p. 325.

  12. 12.

    As early as in 1926, the New York Court of Appeals found it to be a state issue, in Johnson v Compagnie Generale Transatlantique 242 N.Y. 381,152 N.E 121, 123 (1926).

  13. 13.

    Burnham 2011, p. 167.

  14. 14.

    Burnham 2011, p. 173. See in general www.uscourts.gov.

  15. 15.

    This followed the English case law at the time, see Rosner 2004, p. 327.

  16. 16.

    Hilton v. Guyot 159 US 113 (1895).

  17. 17.

    In cases where the parties were not citizens of the same State, the federal courts had jurisdiction.

  18. 18.

    Weston 2011, p. 738.

  19. 19.

    Hilton v. Guyot at 202–203.

  20. 20.

    Ibid., at 227.

  21. 21.

    See for example Somportex Ltd. v Phila. Chewing Gum Corp., 453 F.2d 435, 440 n.8 (3d Cir. 1971), cert. denied, 405 U.S. 1017 (1972).

  22. 22.

    See Johnson v Compagnie Générale Transatlantique 242 N.Y. 381, 152 N.E. 121 (1926).

  23. 23.

    Erie R. Co. v Tompkins 304 U.S 64 (1938).

  24. 24.

    The use of federal common law principles had been established even before Hilton, in a case stemming from 1842, see Swift v Tyson 41 U.S (16 Pet.) 865 (1842).

  25. 25.

    Klaxon Co. v Stentor Electric Mfg. Co. 313 U.S. 487 (1941).

  26. 26.

    Rosner 2004, p. 336.

  27. 27.

    Florida, North Carolina, Maine, Georgia, Ohio, Idaho, Massachusetts, and Texas.

  28. 28.

    For a table containing an overview of the 1962 Act, the 2005 Act and the 2005 ALI proposed statute, see Brand 2013, pp. 536–537.

  29. 29.

    To be found at http://www.uniformlaws.org/shared/docs/foreign%20money%20judgments%20recognition/ufmjra%20final%20act.pdf.

  30. 30.

    Also called the National Conference of Commissioners on Uniform State Laws. As can be found on their website, www.uniformlaws.org, it is a non-profit organisation, founded in 1892, made up of practicing lawyers, judges, legislators, legislative staff and law professors appointed by state governments as commissioners.

  31. 31.

    Section 3, second sentence holds that “The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit”. This has led to some confusion as to whether a foreign judgment is then entitled to the simplified registration procedure that is available for sister state judgments, see Brand 2013, pp. 499–500.

  32. 32.

    Prefatory note to the 1962 Uniform Foreign Money-Judgments Recognition Act, para 1.

  33. 33.

    Brand 2013, p. 496.

  34. 34.

    1962 Uniform Foreign Money-Judgments Recognition Act, Section 4(a).

  35. 35.

    The due process analysis was developed by the US Supreme Court in International Shoe Co. v Washington 326 US 310, 66 S. Ct. 154 (1945).

  36. 36.

    1962 Uniform Foreign Money-Judgments Recognition Act, Section 4(b).

  37. 37.

    Prefatory note to the 1962 Uniform Foreign Money-Judgments Recognition Act, para 2.

  38. 38.

    For other examples described in more detail, including case law, see Rosner 2004.

  39. 39.

    New York Civil Practice Law and Rules, § 3501–3509.

  40. 40.

    In § 5305, being an action on the judgment, a motion for summary judgment, or in a pending action by counterclaim, cross-claim of affirmative defence.

  41. 41.

    In § 5304.

  42. 42.

    Section 8.

  43. 43.

    Rosner 2004, p. 363.

  44. 44.

    Prefatory note to the 2005 Uniform Foreign-Country Money Judgments Recognition Act, para 2.

  45. 45.

    2005 Uniform Foreign-Country Money Judgments Recognition Act, Section 3(c) and Section 4(d).

  46. 46.

    2005 Uniform Foreign-Country Money Judgments Recognition Act, Section 9.

  47. 47.

    2005 Uniform Foreign-Country Money Judgments Recognition Act, Section 6.

  48. 48.

    Strong 2014, p. 66.

  49. 49.

    2005 Uniform Foreign-Country Money Judgments Recognition Act, Section 4(c)(3), see Mondora 2008, p. 1140.

  50. 50.

    Californian Code of Civil Procedure, § 1716(c): ‘The judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions’.

  51. 51.

    Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C, § 4101–4105. New York earlier on changed its statute, see Hay 2009, p. 237. See also Robinson 2013, p. 916.

  52. 52.

    Restatement (Third) on Foreign Relations Law of the United States, Am. Law Inst. (1987); Brand 2013, p. 500–501. Freedom of speech is discussed below.

  53. 53.

    The American Law Institute was founded in 1923 to ‘promote the clarification and simplification of the law and its better adaptation to social needs, to secure better administration of justice and to encourage and carry out scholarly and scientific work’, see https://www.ali.org/about-ali/creation/. It too is a non-profit organisation made up of professors, lawyers and judges.

  54. 54.

    Restatement (Third) § 481 and § 482.

  55. 55.

    2005 Uniform Foreign-Country Money Judgments Recognition Act, Section 3 and Section 7(2).

  56. 56.

    Uniform Enforcement of Foreign Judgements Act, 13 U.L.A. 149 (1964 revised), (1986), in force in some form or another in almost all states.

  57. 57.

    Brand 2013, pp. 499–501 and cited case law.

  58. 58.

    See also Paige 2003, p. 593.

  59. 59.

    Strong 2014, pp. 87–89.

  60. 60.

    For example, courts in the EU are less likely to recognise US judgments containing punitive damages awards, see Hay 2009, p. 234. See further Brand 2013, p. 496; Paige 2003, p. 626; Singal 2008, p. 961; Shill 2013, p. 462; Zeynalova 2013, p. 163.

  61. 61.

    There is a debate on whether it actually comes within the federal competence to regulate this issue, see Strong 2014, p. 93 and the scholarship on the constitutional debate referred to in footnote 193 and 195.

  62. 62.

    Section 1, at 29 and Section 2 at 35.

  63. 63.

    Section 3 at 45.

  64. 64.

    Section 2(c) at 35.

  65. 65.

    Section 3(a) at 43. Sections 3 and 4 together provide clarity on the (preclusive) effects of recognition, which brings along a form of predictability that does not exist under the Acts or Restatement.

  66. 66.

    Section 2(a) at 35.

  67. 67.

    Section 5(c) at 58; Carodine 2007, p. 1234; Rosen 2004, pp. 186–209.

  68. 68.

    Section 5(d) at 60.

  69. 69.

    Section 5(a)(iii) at 55, which refers to Section 6, at 84.

  70. 70.

    These are jurisdiction based on: mere presence of property of the defendant; the plaintiff’s nationality, domicile, residence or place of incorporation; the mere fact that the defendant was in transit in a certain state when he was served; any other basis deemed unfair. See Silberman 2006, pp. 1433–1434.

  71. 71.

    Strong 2014, pp. 125–126.

  72. 72.

    Section 6(d), at 87.

  73. 73.

    Section 5(c) at 57.

  74. 74.

    US Constitution Article IV, para 1.

  75. 75.

    Strong 2014, p. 127 and the scholarship referred to in footnote 395; Zeynalova 2013, p. 203. Also contra see McFarland 2011, pp. 96–100. However, see pro-reciprocity Ballard 2006, pp. 199–238.

  76. 76.

    Section 7(b).

  77. 77.

    Strong 2014, p. 129.

  78. 78.

    Singal 2008, pp. 954–955.

  79. 79.

    Singal 2008, p. 971.

  80. 80.

    Singal 2008, pp. 962–963; Strong 2014, p. 129.

  81. 81.

    See the suggestions made by Singal in his paper for a bright-line reciprocity agreement, p. 975, and in the end suggesting that this requirement is dropped, pp. 977–978.

  82. 82.

    See Weston 2011, p. 736; Strong 2014, p. 143; Zeynalova 2013, p. 169 and the references in footnote 121.

  83. 83.

    Zeynalova 2013, p. 152 and further.

  84. 84.

    Contra adoption of the ALI proposed statute see McFarland 2011, pp. 63–100.

  85. 85.

    Stephan 2014, p. 84.

  86. 86.

    Weston 2011, pp. 741–747.

  87. 87.

    Nadd v Le Credit Lyonnais S.A., 804 So.2d 1226, 1231–33 (2001).

  88. 88.

    Little 2013, p. 952.

  89. 89.

    Brand 2013, p. 506 and discussed case law.

  90. 90.

    Shill 2013, p. 471.

  91. 91.

    Shill 2013, p. 464.

  92. 92.

    To be found in the status table on https://www.hcch.net/en/instruments/conventions/specialised-sections/choice-of-court.

  93. 93.

    See all drafts and further information on http://www.uniformlaws.org/Committee.aspx?title=Choice%20of%20Court%20Agreements%20Convention%20Implementation%20Act.

  94. 94.

    For all information regarding this project, see https://www.hcch.net/en/projects/legislative-projects/judgments.

  95. 95.

    Silberman 2000, p. 639; Burbank 2001, pp. 204–206 and further discussion on lis pendens, forum non conveniens and anti-suit injunctions; Murphy 2001, pp. 418–421.

  96. 96.

    Silberman and Lowenfeld 2000, p. 635.

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  1. International Council of the Belgian Notariat, Bergstraat 30–32, 1000, Brussels, Belgium

    Elsemiek Apers

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  1. Private International Law, T.M.C. Asser Instituut, The Hague, The Netherlands

    Vesna Lazić

  2. Erasmus School of Law, Rotterdam, The Netherlands

    Steven Stuij

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Apers, E. (2018). Harmonisation of Conflict of Law Rules in the US? The Example of Recognition and Enforcement of Foreign Money Judgments. In: Lazić, V., Stuij, S. (eds) International Dispute Resolution. Short Studies in Private International Law . T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-252-1_3

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