If We Build It, Will They Come? - the Need for a Multilateral Convention on the Recognition and Enforcement of Civil Monetary Judgments

Article excerpt

I. Introduction II. Foreign Judgment Recognition in the United States

A. Hilton v. Guyot

B. The Federal Courts

C. State Practice

1. The Uniform Foreign Money-Judgments Recognition Act

2. Non-Uniform Foreign Judgment Recognition Act

States III. Prior U.S. Treaty Experience IV. U.S. Judgments in Foreign Jurisdictions

A. Municipal Law Requirements Generally

B. Lack of Uniformily V. Drafting Problems

A. Adjudicatoty Jurisdiction

B. U.S. Constitutional Limitations

C. Affirmative Defense of Public Policy

D. Default Judgments

E. Other Considerations VI. Recent Developments

A. The Hague Conference

B. The U.S. State Department Study Group VII. Conclusion

I. Introduction

As a general rule, unless there has been a serious violation of due process, American courts will recognize and enforce foreign judgments. Why, then, do judgments rendered in American courts not receive similar treatment in courts abroad? Does this situation merit a treaty? Would such a treaty be used? If so, what form should it take? Most importantly, can a treaty that accommodates differing national concerns be constructed?

History demonstrates that, even if the negotiation of a treaty on the international enforcement of judgments is desirable, achievement of such a goal is difficult at best. This Article explores these questions and concludes that a convention on the enforcement of civil monetary judgments would be a worthwhile achievement. It would contribute to the international codification of litigation procedure and would provide U.S. claimants with greater protection. This protection is especially important for those unfortunate enough not to have appreciated the present disparity in the enforceability of civil judgments, since they will not have contracted for an arbitration clause. This conclusion is tempered by two factors. First, the little empirical research conducted to date by the author and others has not demonstrated a great need for a convention. Second, and related to the lack of an empirically demonstrated need, is the likelihood that the negotiation by the United States of a multilateral convention will require the United States to agree that aspects of certain judgments, such as those involving treble and punitive damages, will not be enforced.

Whether it is worthwhile to make these concessions absent a demonstration of compelling need is open to debate. Some believe that the demand for services provided by such a convention will snowball should a convention enter into force: "If we build it, they will come." This Article, as seen in its title, provides the reader with a complete background of this subject and then invites the reader to examine whether he or she shares this faith.

The ambivalence toward a treaty on enforcement of foreign judgements has strong historical antecedents. In 1874, the Dutch Government proposed a conference on the establishment of uniform laws on the enforcement of foreign judgments.(1) The United States, along with the major powers of Western Europe, was invited to participate in this conference. After considering the invitation for more than two months, Secretary of State Hamilton Fish declined to attend. His response to the Dutch government was the following:

[T]he subject has received the careful and deliberate consideration

of this Government, which finds itself constrained to say

that the difficulties are so great in the way of carrying into effect

the project, arising from the nature of the organic Constitution

of the United States and the relations of the States to the

Federal Government, that it is not thought best to attempt it.(2)

Several other governments also declined the invitation, and the conference never took place.(3) Secretary Fish's refusal set a precedent that survives today. …

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