Academic journal article The George Washington Journal of International Law and Economics

Is the Uniform Foreign Money-Judgments Recognition Act Potentially Unconstitutional? If So, Should the Texas Cure Be Adopted Elsewhere?

Academic journal article The George Washington Journal of International Law and Economics

Is the Uniform Foreign Money-Judgments Recognition Act Potentially Unconstitutional? If So, Should the Texas Cure Be Adopted Elsewhere?

Article excerpt

Recent political events of historic and global proportion afford a wealth of challenge and opportunity for international legal practice. The breakup of the former Soviet Union, the reunification of Germany, and, in general, the collapse of command-style central planning as a viable approach to economic organization seem certain to expedite globalization of markets and increase the volume ofinternational business transactions. An increase in transactions means an increase in disputes. While arbitration is generally considered the preferred device for resolving transnational business disputes,(1) litigation is frequently unavoidable, either as a substitute for arbitration or as a consequence of it.(2) As international disputes are litigated and reduced to judgments in the national courts of various countries, the recognition and enforcement(3) of foreign judgments will present an expanded challenge to international legal practice. This Article addresses one aspect of that challenge: the recognition and enforcement of foreign country money judgments in the United States.

The United States is the nation most receptive to receptive to recognition of foreign country judgments.(4) This is the conclusion reached in 1987 by the American Law Institute's Restatement (Third) of Foreign Relations Law.(5) It attributes this receptivity to the influence of the principles and practices engendered by the Full Faith and Credit Clause of the Federal Constitution(6) in respect of sister state judgments.(7)

One manifestation of this receptivity is the Uniform Foreign Money-Judgments Recognition Act (Uniform International Act), promulgated by the National Conference of Commissioners on Uniform State Laws in 1962(8) and now said to be in effect in twenty-two states, including California, Illinois, Massachusetts ,Michigan, New York, Ohio, Pennsylvania, and Texas.(9) The Uniform International Act was designed to "codify" rules that had long been applied by a majority of state courts in the United States.(10) It provides for the enforcement of recognized foreign country money judgments "in the same manner as thejudgment of a sister state which is entitled to full faith and credit."(11)

The formula sounds simple, logical, and workable. For the most part it has been. But in the 1980s, two Texas intermediate appellate courts ruled it unconstitutional(12) and a third avoided that condemnation by reading into the Uniform International Act (Texas version) what was tantamount to a section on due process hearing procedures.(13) In mid-1989 the Texas state legislature obliged the Texas Bar by converting that judicially inferred section into a statutory amendment,(14) thereby attempting to cure the purported unconstitutionality of the Uniform International Act.(15) That purported unconstitutionality lay in the Uniform International Act's failure to specify the United States procedures by which a foreign country moneyjudgment is to be examined for compliance with due process standards: that is, the Act's failure to provide for due process here on the question of due process there unless a new common law action is brought on the foreign judgment.

A 1990 decision of the Texas Supreme Court upheld the constitutionality of the unamended Act but only on the basis that, under the facts of the particular case before it, the required due process hearing would be provided in the course of the separate common law action that had been brought to enforce the foreign judgment(16) Since a separate common law action on a sister stat or foreign country judgment has always been available,(17) the Texas Supreme Court's reasoning did not reach the perceived defects of the Uniform International Act,(18) which was designed to permit "short-cut" procedures as an alternative to enforcement lawsuits.(19)

Although the legislature in Texas took remedial action,(20) the problem has not been identified or addressed by the courts of any other state in which the Uniform International Act has been adopted. In fact eight states have adopted the Act in substantially its original form since the issue was first identified in Texas.(21) Thus the question arises whether Texas has illuminated the path that others should follow or simply conjured up and "solved" a problem when none in fact existed.

Parts II and III of this Article describe the background of the Uniform International Act. Part IV surveys the cases decided under the Act as adopted in Texas. Part V analyzes the recent cases that declared the Texas International Act unconstitutional. Part VI considers the due process issue that was the basis of those declarations. Part VII explores the Texas 1989 "remedial" legislation. Finally, Parts VIII and IX assess certain alternative solutions to the problem that have been or could be adopted in other states, including a specific legislative proposal.

We begin, for purposes of comparison and historical development, with the distinct but analogous matter of recognition and enforcement of sister state judgments.(22)

II. SISTER STATE JUDGMENTS AND THE UNIFORM INTERSTATE ACTS

A. THE FULL FAITH AND CREDIT CLAUSE

The states, territories, and possessions of the United States are obligated by the Full Faith and Credit Clause of the United States Constitution to recognize and enforce one another's judgments.(23) The policy reasons that underlie the full faith and credit doctrine are federalism, comity, and res judicata.(24) These broad principles have the following specific objectives: (1) the public interest in concluding litigation;(25) (2) avoidance of duplication of effort; (3) protection of the successful litigant against harassment or evasive tactics on the part of his opponent; (4) rendering the choice of forum less dependent on the availability of local enforcement; (5) fostering national stability and unity; and, in certain cases, (6) establishing a principle of forum conveniens, or deference to the rendering forum as the more appropriate adjudicator.(26)

A presumption of validity is accorded a sister state judgment.(27) The U.S. Supreme Court has interpreted the Full Faith and Credit Clause as mandating recognition of such a judgment "even if it disregards the dominant interest or policy" of the state in which recognition is sought.(28) This interpretation has been supported by the rationale that judicial economy and integrity within the federal system require a strict application of the res judicata doctrine.(29) Furthermore, it has been argued that the Full Faith and Credit Clause "reflects the need to weld the states together as a single nation with utmost freedom of interstate commerce and migration and with all states respecting each other's procedures."(30) As an additional justification, it has been noted that interstate variations in cultural attitudes and commercial practices are not great and that each state's governmental procedures are subject to the same constitutional limitations.(31)

Implicit in this reasoning is a strong presumption that due process requirements were satisfied in the underlying proceedings in the sister state that rendered the original judgment.(32) This presumption justifies the practice of routinely enforcing sister state judgments.(33) The presumption can be overcome in a limited number of cases, such as lack of jurisdiction in the rendering court or fraud in the procurement of the judgment.(34) Judgments may not be collaterally attacked, however, for errors that, in the rendering court, were grounds for appeal only.(35)

The Full Faith and Credit Clause, as implemented by federal legislation,(36) does not specify the mechanics by which sister state judgments are to be recognized and enforced.(37) Although Congress has the authority to make the judgment of one state directly binding and immediately enforceable against the judgment debtor in another state(38)--much as federal court judgments are registered in other federal districts(39)--it has chosen not to do so.(40)

Until 1948 the sole device for interstate enforcement was a new action on the sister state judgment.(41) This is not tantamount to a trial de novo since res judicata and collateral estoppel apply as required by the Full Faith and Credit Clause.(42) But the requirement of a new lawsuit is clearly an "inefficient and wasteful procedure"(43) that involves unnecessary "delay, expense and uncertainty."(44) The results of these perceived inadequacies led to the creation of the 1948 Interstate Act. We now turn our discussion to the substantive terms of that Act.

B. THE 1948 INTERSTATE ACT

In 1948 the National Conference of Commissioners on Uniform State Laws (Commissioners) promulgated the first Uniform Enforcement of Foreign Judgments Act (1948 Interstate Act), applicable only to sister state judgments.(45)

Originally the Commissioners had proposed a simple judgment registration system(46) as the procedural mechanism by which to enforce sister state judgments under the proposed act.(47) The Commissioners' reasoning was that the judgment debtor had had his day in court and the proposed system, even without further procedural safeguards, satisfied the requirements of the Due Process Clause of the Federal Constitution.(48) Because due process requires nothing more than adequate notice and an opportunity to be heard(49) once and not a succession of times,(50) the judgment debtor, it was believed, would suffer no constitutional wrong under the judgment registration system.(51) In the final draft of the Act, however, the judgment registration system was abandoned because it was felt the only way to ensure the political success of the proposal was by compromise with those who thought the registration system too radical a change.(52) The resulting compromise was a summary judgment procedure, less cumbersome than the old common law process but less efficient than registration.(53) It involves the following: application for registration,(54) service of process on judgment debtor(55) or notice to last known address,(56) levy on property at any time after registration,(57) pleading of defenses by judgment debtor within sixty days,(58) hearing,(59) new personal(60) or quasi in rem judgment,(61) and execution after judgment.(62) For reasons discussed below, the Act was soon replaced by a more streamlined procedure designed to expedite the recognition of sister state judgements.

C. THE 1964 INTERSTATE ACT

The Commissioners followed the 1948 Interstate Act with a revision in 1964, the Revised Uniform Enforcement of Foreign Judgments Act (1964 Interstate Act).(63) The prefatory note to this version succinctly describes the reasoning behind the abandonment of the summary judgment enforcement procedure of the 1948 Act in favor of a judgment registration system.(64) The Commissioners noted that although the summary judgment system was preferable to its common law predecessor, court intervention was neither constitutionally necessary nor judicially efficient.(65) In the interest of providing "the enacting state with a speedy and economical method of doing that which it is required to do by the Constitution of the United States,"(66) the Commissioners offered the states the option of a streamlined registration system. The system, now in effect in forty-one of the fifty states,(67) has for the most part been quite successful. It involves the following: filing of foreign judgment,(68) notice to judgment debtor at last known address,(69) and execution within specified period unless stay granted following appropriate showing by judgment debtor.(70) In substance this is the same practice as provided by Congress in 1948 for the inter-district enforcement of the judgments of federal district courts.(71) One difference is that the federal statute does not even refer to notice to the judgment debtor.(72)

In the meantime the Commissioners had focused their attention on the analogous problem of the recognition and enforcement of foreign country judgments. It is to this problem that we now turn.

III. FOREIGN COUNTRY JUDGMENTS AND THE UNIFORM INTERNATIONAL ACT

Foreign country judgments, as distinguished from sister state judgments, do not enjoy the protection of the Full Faith and Credit Clause.(73) There is no obligation on the part of the state and federal courts of the United States to recognize automatically the judgments of courts sitting in foreign countries.(74) Although it has been suggested that federalization of this area(75) by treaty,(76) statute,(77) or federal common law(78) would be constitutional, as well as desirable because of its close relationship to foreign affairs,(79) Congress has not chosen to do so. Nor has the U.S. Supreme Court conclusively spoken for the nation on this issue.(80) Consequently, under the Supreme Court's decisions in Erie(81) and Klaxon,(82) state law largely governs the recognition of foreign country judgments.(83)

The following subsection focuses on the Texas common law because it is similar to that of other states and because it is the background of the Uniform International Act as adopted, declared unconstitutional at the intermediate appellate level, and amended in Texas.(84)

A. COMMON LAW RECOGNITION PRACTICE

Despite some variations in local practice, most states of the Union tend to recognize valid foreign country judgments that are not subject to additional proceedings, other than execution, in the country of the rendering court.(85) That such a judgment is subject to appeal or modification does not deprive it of its character as a final judgment.(86) As with interstate judgments, the normal common law mode for enforcing a foreign country judgment is a new suit on the original judgment.(87)

A pair of early Texas cases suggest the path the development of the common law has followed, in Texas and elsewhere in the United States. The first court in Texas to decide this issue reported its decision in Phillips v. Lyons(88) in 1846, based on an action commenced in the independent Republic of Texas before its annexation in 1845 by the United States. In Phillips, the Texas Supreme Court faced the question whether conclusive effect could be given to a Louisiana judgment.(89) Judge Lipscomb, writing for the majority, overturned the lower court's decision that the judgment should be recognized. He ruled that "foreign judgments, in the absence of legislative enactments, are held in most of the states, to be only primafacie evidence."(90)

In the same year as Phillips, however, another Texas case addressing the same issue reached a different conclusion. In Wellborn v. Carr,(91) the same court was asked to determine whether a judgment rendered in Alabama should be given conclusive effect in light of the court's decision in Phillips.(92) The court held that the judgment should be given conclusive effect, and distinguished Phillips on the basis that the judgment in Phillips was in personam as opposed to the judgment in Wellborn, which was in rem.(93) Judge Lipscomb, speaking again for the court, stated that "the judgment of the formm rei sitae is held absolutely conclursive."(94) He reasoned that judgments based on in rem proceedings were absolutely conclusive "by the general consent of nations" as well as by "universal obligation."(95)

The common law theory of "prima facie evidence" of foreign country judgments articulated by Judge Lipscomb in the PhilliPs case has not survived. Judicial interpretation of the effect to be given foreign country judgments has shifted from the prima facie rule to the modern approach of conclusive effect, but without the Wellborn limitation to in rem proceedings.

In 1895 the U.S. Supreme Court declared the modern approach in Hilton v. Guyot.(96) According to the Hilton Court,

W!here there has been an opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of juris-prudence likely to secure an impartial administration ofjustice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the sysem of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact.(97)

The key concept here is "comity," a rather elusive term that signifies a posture "somewhere between duty and courtesy."(98)

The Hilton Court also advanced the doctrine of "reciprocity."(99) This doctrine requires denial of recognition to thejudgment of a foreign country if the law of the country where judgment was rendered would not give res judicata effect to the judgment of a court sitting in the United States.(100) This requirement was intended to induce foreign governments to "modernize" their recognition procedures.(101)

The reciprocity requirement, however, leaves private litigants at the mercy of public policies.(102) The treatment of foreign judgments depends on the position taken by the government of the other country involved.(103) One commentator has suggested that " t!he rule ignores the basic policy underlying the recognition and enforcement of foreign-nation judgments--putting an end to litigation."(104) This aspect of the Hilton opinion was increasingly criticized and attracted scant approval. Most state courts have either narrowly applied the reciprocity requirement or rejected it outright.(105) Scholars have uniformly condemned it.(106)

Hilton's precedential value today, moreover, is questionable for several reasons. First, the reciprocity requirement was enunciated in a case where the federal court's subject matter jurisdiction was based on diversity rather than federal question jurisdiction.(107) Today such cases would clearly be governed by state law.(108) Second, the Supreme Court's careful wording of the reciprocity doctrine in Hilton has been construed so as to restrict its application only to cases in which a foreign plaintiff attempts to enforce ajudgment against a U.S. citizen.(109) According to one authority, the effect of these two considerations on Hilton is "to drain it of real significance."(110) Its authority for reciprocity is therefore "dubious" at best.(111)

Over the ensuing years, the influence of Hilton in Texas, as to both comity and reciprocity, was ambiguous. On the eve of adopting the Uniform International Act in 1981, the status of foreign country judgments in Texas was problematic.(112) Two cases held that foreign country judgments could be refused recognition due to lack of notice and lack of jurisdiction.(113) But these defects would not have survived the Hilton criteria in any case.(114) The only Texas case that exhibited a positive attitude towards giving conclusive effect to foreign country judgments was Banco Minero v. Ross.(115) In that case, from 1915, the majority quoted the central passage on comity from the Hilton opinion almost ver-batim.(116) This, however, was "double" dictum since the court refused to enforce the judgment on grounds not involving the absence of reciprocity.(117)

B. THE UNIFORM INTERNATIONAL ACT

In an attempt to standardize recognition and enforcement procedures among the states as to foreign country judgments, and to address the perceived deficiencies of Hilton,(118) the National Conference of Commissioners on Uniform State Laws presented to the states in 1962 a Uniform Foreign Money-Judgments Recognition Act (Uniform International Act).(119) The purpose of the Uniform International Act was to facilitate recognition of foreign country judgments in the United States so as to "make it more likely that judgments rendered in the state will be recognized abroad."(120) The second half of this formulation is often overlooked.(121)

The Uniform International Act applies only to foreign country money judgments. It provides for recognition in accordance with the Act's terms and for enforcement "in the same manner as the judgment of a sister state which is entitled to full faith and credit."(122) Thus it deals with recognition in one way, and with enforcement in another. More specifically, the Uniform International Act (1) establishes standards, but no procedure, for recognition, and (2) assigns enforcement to whatever procedures are in force in the state of the forum.(123) In the year of its promulgation, 1962, that meant enforcement either by a new suit on the judgment or by utilization of the summary procedures of the 1948 Interstate Act. The Commissioners' comment to section 3 of the Uniform International Act specifically contemplates that the "method of enforcement will be that of the Interstate Act! of 1948 in a state having enacted that Act."(124)

Although the terms "recognition" and "enforcement" are often used interchangeably, their meanings are distinct, and this distinction is critical to understanding problems in the drafting and application of the Uniform International Act.(125) All "enforcement" involves or presupposes "recognition," but not all "recognition" involves "enforcement." Recognition "refers to the res judicata status of a foreign judgment" and takes place when the foreign adjudication is held to bind the parties.(126) Enforcement, on the other hand, connotes the ordering of relief based on the foreign judgment.(127) In the United States, as already noted, enforcement of foreign country judgments has been traditionally effectuated by means of a suit for a domestic judgment predicated on the foreign judgment.(128) Under this traditional approach, the theoretically independent step of recognition was subsumed into the new lawsuit seeking enforcement.(129) The Uniform International Act, however, clearly separates these steps, assigning enforcement to procedures in effect for the enforcement of sister state judgments. What of recognition standing alone?

In a lacuna of rather startling dimension, the Uniform International Act makes no provision for the procedure to be used in determining eligibility for recognition. Conceivably this could be rolled into the enforcement phase where appropriate, but recognition apart from enforcement arises in a variety of contexts, such as actions for declaratory judgments, actions regarding status, and actions in which a foreign judgment is offered by way of bar or estoppel.(130) Yet the Uniform International Act establishes no procedure by which its standards can be applied when recognition alone is sought.(131) Moreover, because of the Uniform International Act's separation of the recognition and enforcement steps,(132) enforcement, which presupposes recognition, is necessarily predicated upon a determination for which no procedure has been provided.(133)

In contrast, the regime obtaining in the European Communities provides explicitly that recognition questions will be decided either by the court that would otherwise hear questions of enforcement if recognition is a principal issue in the dlspute, or by the court seized with the principal proceedings if recognition is merely an incidental issue in the dispute.(134)

The Uniform International Act provides both mandatory and discretionary grounds for denying recognition to foreign country money judgments.(135) The mandatory grounds are based on lack of due process and lack of jurisdiction.(136) Specifically, recogtion must be denied when: "(1) the judgment was rendered under a sysem which does not provide impartial tribunals or procedures compatible with the requirements of due process of law; (2) the foreign court did not have personal jurisdiction over the defendant; or (3) the foreign court did not have jurisdiction over the subject matter."(137) It should be noted that the foreign procedures need be only compatible with U.S.-style due process; they need not be identical.(138)

Discretionary grounds for nonrecognition include those cases where: the defendant did not receive notice in sufficient time to defend; the judgment was obtained by fraud; the claim is repugnant to the forum's public policy; the judgment conflicts with another final judgment; the judgment was contrary to an agreement to settle disputes otherwise than bv litigation, e.g., by arbitration; and forum non conveniens if foreign jurisdiction was based only on personal service.(139) Notably absent from the list of mandatory and discretionary grounds for nonrecognition is the absence of reciprocity.(140) But several states, including Texas, introduced a modification to include absence of reciprocity as a mandatory or discretionary ground for nonrecognition.

We turn now to the Texas version of the Uniform International Act, both as necessary background to what followed and as concrete exemplar for other enacting states.

IV. THE TEXAS INTERNATIONAL ACT

Texas adopted the Uniform International Act in 1981 with two noteworthy modifications (Texas International Act).(141) In the title of the legislation, "Country" was inserted after "Foreign" to make sure that no one was misled into thinking it referred to the kind of "foreign" judgment whose provenance is merely a sister state.(142) The more critical modification, however, was the insertion of an additional discretionary ground for nonrecognition: lack of reciprocity.(143) As the Fifth Circuit Court of Appeals observed shortly after adoption of the Texas International Act, "Texas' amendment of the Uniform International! Act to include a reciprocity provision is especially ironic given that the Act was designed to be a modern, forward-looking statute which discarded what were considered to be outmoded and discredited doctrines."(144)

The Texas International Act, like the Uniform International Act, deals only with monetary judgments awarded or denied in foreign countries.(145) It provides that recognized foreign country judgments are "conclusive between the parties" and are "enforceable in the same manner as a judgment of a sister state that is entitled to full faith and credit."(146) Enforcement is contingent on recognition, but is then available under the Texas ver- sion of the 1964 Interstate Act, adopted at the same time as the Texas International Act, as an alternative to the common law enforcement approach.(147) Certain of the grounds for nonrecognition clearly implicate due process concerns:

(a) A foreign country judgment is not conclusive if: (1) the judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law; and!

(b) A foreign country judgment need not be recognised if: (1) the defendant in the proceedings in the foreign country did not receive notice of the proceedings in sufficient time to defend.(148)

At the time of the adoption of the Texas International Act, the Texas legislature intended to address the following problems:

1. Lack of adequate procedures in the state for enforcing foreign country money judgments;(149)

2. Growing concern over the indefinite and sometimes arbitrary criteria for recognizing foreign country money judgments;(150) and

3. Need to facilitate and, it was hoped, to assure, the recognition and enforcement of Texas judgments abroad.(151)

Prior to the adoption of the Texas International Act, citizens of Texas had difficulty persuading foreign courts to recognize and enforce Texas judgments.(152) The problem was more pronounced in civil law countries, where reliance is primarily on codified or statutory law rather than on judicial decisions, and where proof of reciprocity is quite often required.(153) Mexico,for example, requires reciprocity and will enforce a judgment from another country only to the extent that a valid Mexican judgment is enforceable in such other country.(154)

Proponents of the Uniform International Act for Texas were quite sanguine about its potential. "All these problems," said one commentator, "could be eliminated through the enactment ... of... the Uniform Foreign Money Judgments Recognition Act."(155) Of course this was the view before local introduction of the discretionary reciprocity requirement.(156) Concerns about due process were focused solely on due process in the foreign proceeding.(157)

The earlier cases under the Texas International Act offer no surprises. In Hunt v. BP Exploration Co.(158) and Norkan Lodge Co. v. Gillum,(159) two federal district courts applying Texas law gave conclusive effect to the respective judgments of English and Canadian courts.

In Hunt, the plaintiff brought suit seeking a declaratory judgment that a prior, adverse English judgment was unenforceable because under Texas law absence of reciprocity was a discretionary ground for nonrecognition, and England allegedly did not recognize judgments of U.S. courts.(160) The court cited the Texas International Act as setting forth the elements necessary for a party to establish a prima facie case for recognition of foreign country judgments in Texas.(161) Applying Texas law, it also noted that the burden of proof to establish lack of reciprocity was on the party opposing such recognition.(162) The court concluded that the plaintiff had failed to rebut the prima facie case presented by the defendant and had failed to show nonreciprocity,(163) and therefore the English judgment was enforceable.(164)

In the same year, the court in Norkan Lodge was asked to determine whether the bases for nonrecognition under the Texas International Act precluded enforcement of a Canadian judgment.(165) Although the factual situation differed from Hunt, the Norkan Lodge court found ample bases for enforcing the Canadian judgmen. In Hunt, the action involved a dispute over a debt,(166) whereas the Norkan Lodge case arose out of an alleged trespass and conversion.(167) The court held that the defendant had failed to establish any of his affirmative defenses of nonreciprocity, fraud, and repugnance to public policy.(168)

In Allen v. Tennant,(169) however, the foreign judgment at issue was denied enforcement by a Texas state court. The plaintiffs instituted a writ of mandamus proceeding against a state trial court judge to set aside an order enforcing a foreign country default judgment entered against them.(170) The appellate court held that the trial court judge was without authority to enforce the judgment because the judgment creditor had failed to meet the requirements of the Texas International Act, as implemented by the Texas version of the 1964 Interstate Act.(171) In order to obtain enforcement of a foreign judgment, the judgment creditor first had to file an authenticated copy of the foreign judgment with the clerk of any Texas court of competent jurisdiction.(172) Second, the filing had to be accompanied by an affidavit indicating the names and last known addresses of both parties.(173) Lastly, the clerk had to give notice of the filing to the debtor.(174) The court concluded that because the judgment creditor had failed to give notice of the filing of the judgment or, in the alternative, notice of filing of a new cause of action, all orders pertaining to the enforcement were to be set aside.(175) The decision is hardly startling. But those that followed were indeed so.

V. HENNESSY, DETAMORE, AND DIAMOND PLASTICS

Contrary to a general understanding that had inspired the Uniform International Act and had been reinforced by more than twenty years of experience with it, three different intermediate appellate courts in Texas determined that the "model" legislation was not so model after all. Indeed, it was found to be so seriously deficient that in one case the Act was effectively rewritten by the court, while in the other two cases the statute was declared unconstitutional. The possibility of these results had been briefly acknowledged in scholarly writings but summarily dismissed.(176)

The first case in this trilogy was Hennessy v. Marshall.(177) The primary question was whether, absent a plenary hearing, an English judgment could be recognized under the Texas International Act and then enforced under the Texas version of the 1964 Interstate Act.(178) The trial court held that "these two Acts had been satisfied and that the English judgment was valid and enforceable in the same manner as a judgment of the State of Texas, just as though the English judgment was that of a sister state."(179) On the basis of this holding, the trial court entered an order directing appellants to provide post-judgment discovery.(180) Appellants then sought a writ of mandamus requiring the judge to vacate the post-judgment discovery order.(181)

In vacating the trial court's order, the appellate court reasoned that "the question of enforcement is not material until the foreign country judgment has first been recognized."(182) It added that the criteria for nonrecognition could be established only in a plenary hearing.(183)

With respect to the standards for determining the propriety of the foreign court's personal jurisdiction,(184) the court also concluded that "these matters cannot be determined absent a plenary hearing on the question of recognition."(185) Because of these concerns, and the absence of any statutory guidance on the question of what proceedings to use for testing the foreign court's jurisdiction,(186) the court inferred that "the drafters of the Uniform Act and the Texas legislature intended that a plenary hearing be had before the foreign country judgment is recognized and before enforcement of the foreign country judgment commences."(187) Relying in part on other "sister-state decisions which have considered the question before us,"(188) the appellate court held that "a plenary suit must be filed and a plenary hearing held in a Texas Court before a foreign country judgment is entitled to recognition and enforcement."(189)

Three years after Hennessy, a second appellate court was faced with a similar issue of interpretation of the Texas International Act. In Detamore v. Sullivan,(190) a Canadian court had granted a default judgment in favor of the plaintiff, Continenta1 Bank of Canada, against the Texas defendant, Detamore.(191) Subsequently, Continental Bank filed the default judgment in an applicable Texas county clerk's office seeking a writ of execution.(192) The trial judge ordered the sale of defendant's stock under the writ to satisfy the judgment.(193) As in Hennessy, the defendant filed an application for a writ of mandamus requiring the trialjudge to vacate his order.(194)

Defendant Detamore advanced two contentions in support of his application. First, he claimed that the foreign judgment had not been properly recognized as a Texas judgment because he was not afforded the plenary hearing that he was entitled to under Hennessy.(195) In the alternative, Detamore argued that the Texas International Act was facially unconstitutional because it failed to provide the judgment debtor with notice and an opportunity to be heard on the issue of recognition.(196)

With respect to the first contention, although the Detamore court agreed with the rationale of Hennessy,(197) it concluded that the Hennessy court had gone too far in ordering a plenary hearing because the Act did not provide for one. The court therefore expressly declined to follow that court's holding.(198) On the constitutional issue, however, the court reasoned that since the grounds for nonrecognition are affirmative defenses,(199) "a judgment debtor could find himself in the procedural quandary of having a valid defense to recognition and enforcement of a foreign country judgment but being unable to assert that defense."(200) The court regarded this as a denial of the judgment debtor's due process rights and concluded that the Texas International Act was unconstitutional.(201)

In 1989, confronted with an attempt to enforce a Barbados judgment, a third appellate court in Plastics Engineering Inc. v. Diamond Plastics Corp.(202) chose Detamore over Hennessy(203): the Uniform International Act was unconstitutional for not providing a plenary hearing to determine the eligibility of the foreign country judgment for recognition.(204) The judgment creditor had advanced the argument that the Barbados judgment in question could be scrutinized at the time of enforcement proceedings, but the court insisted that recognition preceded enforcement and that "recognition being conclusive ... could not be relitigated in the enforcement proceeding."(205)

The situation seemed to call for legislative remedy. But first we examine the constitutional issues in greater detail.

VI. THE DUE PROCESS REQUIREMENT

A. APPLICATION TO FOREIGN JUDGMENTS

The Fifth and Fourteenth Amendments to the U.S. Constitution prohibit governmental action that deprives "any person of life, liberty, or property, without due process of law."(206) The essential ingredient of due process is fairness.(207) This requires a neutral and detached decisionmaker.(208) It also requires notice and usually a hearing prior to any grievous governmental deprivation.(209) In some situations, a post-deprivation hearing or other process will suffice.(210)

Due process requires notice and an opportunity for a fair hearing only one time, however, and not a succession of times.(211) Applied to the enforcement of sister state judgments, this means that

d!ue process need not be satisfied separately in each state that has anything to do with enforcement of a judgment. It is enough that one process be satisfied in one state. After that the action of a second state in enforcing the already valid judgment is essentially administrative in character, with no new service and hearing necessary.(212)

The proposition is now beyond cavil. The U.S. Supreme Court, "for want of substantial federal question," has dismissed an appeal from a judgment of the Supreme Court of Colorado that upheld, against due process objections, enforcement of a New Mexico money judgment in Colorado under the Uniform Interstate Act.(213) This accords with almost universal academic analysis.(214)

The constitutional context changes, and from a structural standpoint it changes rather dramatically, when the recognition or enforcement sought in the forum is for a foreign country judgment. True, comity in practice may come close to full faith and credit.(215) But the due process ingredients are different. It can no longer be assumed that the original judgment passes muster for having been rendered in a jurisdiction subject to the U.S. Constitution. There is no appeal to the U.S. Supreme Court from a foreign country court.(216) Satisfaction of due process standards for U.S. constitutional purposes is therefore in suspense. Satisfaction remains to be established, either in fact or by presumption. Automatic, unquestioning acceptance of a foreign country judgment falls short of U.S. due process standards for actual implementation at the forum. A new suit on the judgment may cure that shortfall. Mere registration may not.(217)

B. SILENCE OF THE UNIFORM INTERNATIONAL ACT

Remarkable and even incredible as it may seem, the authors of the Uniform International Act focused exclusively on fairness in the foreign forum.(218) They gave no thought to how this might be established in the enforcing forum. They apparently assumed nothing further was needed than fairness in the rendering court and established no procedure by which this key issue might be determined. The record of the Commissioners' deliberations bears not a trace of concern for the problem that so preoccupied the drafters of the two Uniform Interstate Acts: what notice and hearing procedures are required by due process for recognition in the "second" forum?(219)

The explanation for so egregious an oversight is not immediately apparent. Certainly the drafters and the Commissioners did not expect a court to interpolate appropriate notice and hearing procedures, as was done in Hennessy.(220) Detamore and Diamond Plastics quite properly rejected so extreme an example of judicial creativity.(221) The essence of procedural due process resides in the mechanics, a matter singularly unsuitable for gap-filling without guidance. What mechanics there are in the Uniform International Act were considered in quite specific detail.(222) This is hardly consistent with an intent to leave due process mechanics to the uncertainties of judicial improvisation.

What, then, is the explanation for the oversight? It will be recalled that the Uniform International Act of 1962 followed the Interstate Act of 1948 but preceded its revision in the Interstate Act of 1964.(223) In 1962, therefore, enforcement of a foreign country judgment would have been accomplished either by a new suit on the original judgment or by a judicially supervised summary process under the 1948 Act.(224) In either case, the judgment debtor would have enjoyed the right to notice and the right to be heard on the issue of foreign country fairness, all in the same fashion as he could have raised certain limited objections, such as lack of jurisdiction, to enforcement of a sister state judgment.(225) Due process in this country for establishing the existence of due process in the foreign country, under the Uniform International Act, would simply take place under the 1948 Interstate Act. The difficulty with this explanation, however, is that both the 1948 Act and the 1964 Act define "foreign judgment" as on already "entitled to full faith and credit."(226) That of course excludes foreign country judgments.(227) Can they nevertheless be included through cross-reference from the Uniform International Act? It prescribes enforcement of foreign country judgments "in the same manner as the judgment of a sister state which is entitled to full faith and credit."(228) But what enjoys this in-the-same manner treatment is a foreign country judgment that is already "conclusive" for having met the criteria for recognition.(229) Th exact wording of the cross-reference bears repetition in context:

Except as provided in section 4, a foreign judgment meeting the requirements of section 2 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.(230)

Section 4 specifies grounds for nonrecognition.(231) Section 2 requires that a foreign country judgment be final and conclusive and enforceable where rendered.(232) Only a foreign country judgment meeting those requirements is enforceable "in the same manner" as a sister state judgment.(233) There is nothing to remit until the foreign country judgment qualifies for recognition.

The cross-reference thus fails to span the definitional gap. It is like that ravaged medieval bridge on the Rhone at Avignon, anchored to an abutment at one end but truncated in space at the other.(234) Still barred in limine is any consideration of those issues required by the Uniform International Act to be resolved in favor of recognition and enforcement.(235) This in fact was so declared by the cases cited in Hennessy.(236)

Even if the definitional threshold could be crossed, however, the terms of the 1964 Act, with its simple registration procedure,(237) would leave the judgment debtor with considerably less remedy than that available when the Uniform International Act was issued in 1962. In addition, there is no evidence that the Commissioners in 1962 ever contemplated the possibility of applying simple registration procedures in the enforcement of foreign country judgments.(238)

As to recognition, as distinguished from enforcement, it is perhaps possible that the drafters of the Uniform International Act expected the matter to arise, and be dealt with in accordance with applicable due process standards, in a main proceeding to which the issue of recognition was incidental.(239) At least such a concept would not confront the threshold barrier of exclusion by definition. But rationalizing the omission of recognition procedures still leaves open the problem of enforcement.

There is a final possibility. To invoke the vernacuiar, nobody's perfect. If the Uniform Commercial Code, with its impressive genealogy and long period of closely monitored gestation, can contain manifest errors of draftsmanship, so too can other uniform acts.(240) An explanation for the oversight, then, may be that the sponsors simply never thought of the problem. In their zeal to ensure due process abroad, they ignored due process at home.(241)

In this they were not alone. In none of the literature on the subject is the problem addressed, although unwittingly some writers come close.(242) Advocates of equal treatment for foreign country judgments and sister state judgments have always assumed that foreign country judgments would be subject to scrutiny in this country for "jurisdictional" requirements such to as adequate notice and the opportunity to be heard.(243) But they have never considered what this scrutiny might entail and how a judgment debtor might trigger it. Those issues are the subject of the next section. What "process" is "due" in the recognizing or enforcing forum?

C. THE BALANCING TEST

For present purposes, it will be taken as given that most foreign countries provide litigants with fair and reasonable judicial procedures, and that the fundamental policy of terminating litigation after a final judgment has been rendered entitles foreign country judgments to recognition in the United States.(244) There will be exceptional cases where this is not so, however.(245) Thus a determination of which cases qualify for recognition and which cases do not so qualify is itself a part of the process for deprivation of property that must be "due." It is here that the Uniform International Act breaks down.

Other than the three Texas cases discussed earlier,(246) there are no cases on what process is due in the determination of whether or not due process has been obtained in the foreign country rendering court.(247) Nor is there more than one authority, Gedeon v. Gedeon, addressing that problem with respect to a sister state judgment.(248) One must therefore rely on analogy and extrapolation.

The U.S. Supreme Court has not provided systematic guidance on the values and objectives of the due process determination.(249) The answers have depended heavily on the particular context involved.(250) In all cases today, however, the Court employs a three-pronged balancing test. As elaborated in Mathews v. Eldridge,(251) the factors to be weighed are:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.(252)

All federal and state courts in the United States must now follow the Mathews balancing test.(253) It is employed not only to determine if an individual is entitled to a hearing, whether before or after deprivation, but also to determine the precise procedures to be employed, with or without a hearing.(254) The threshold requirement is of course that the individual's interest be constitu- tionally protected against deprivation without "due process of law."(255)

In creditor-debtor type cases, it is doctrine that when the creditor invokes government-enforced procedures to take property of the debtor or alleged debtor, the latter is deprived of a constitutionally significant interest in property.(256) Once the creditor has established his claim, however, the debtor has been accorded due process and the government may help the creditor to enforce it.(257) Even here, however, a minimum of procedure may be required to satisfy due process. An examination of how the U.S. Supreme Court has dealt with post-judgment garnishment procedures will give some indication of how it might deal with the analogous problem of enforcing or recognizing foreign country judgments. Prejudgment garnishment procedures will be considered as well, since presumably the Court would turn to them for guidance.(258)

As early as 1924, the U.S. Supreme Court held in Endicott Johnson Corp. v. Encyclopedia Press, Inc. that due process does not require post-judgment garnishment procedures to provide a debtor with notice or hearing before garnishment.(259) The Court reasoned that the underlying proceeding served as constructive notice to the debtor that the creditor might attempt to garnish the debtor's wages to satisfy the judgment.(260) The Court added that "in the absence of a statutory requirement,it is not essential that he the debtor! be given notice before the issuance of an execution against his tangible property; after the rendition of the judgment he must take 'notice of what will follow,' no further notice being 'necessary to advance justice.'"(261)

For more than five decades, the Endicott Johnson rule was largely followed by the lower courts.(262) Then in 1980 in Finberg v. Sullivan,(263) the U.S. Court of Appeals for the Third Circuit held that a Pennsylvania statute was unconstitutional for failing to provide immediate post-seizure adjudication of claims of exemption(264) and for failing to require that the debtor be informed of the existence of the exemptions.(265) Nevertheless, on closer examination, Finberg is consistent with Endicott Johnson. First, the particular facts of Finberg were critical to the court's decision: Mrs. Finberg was a sixty-eight year old widow on welfare.(266) Second, federal law proscribes the seizure of Social Security benefits.(267) Third, Pennsylvania law provides a $300 cash exemption to debtors in Mrs. Finberg's economic position.(268) The real issue, therefore, was whether Pennsylvania law adequately protected Mrs. Finberg's statutory right to exempt certain property from seizure.(269) Because the protection of an unadjudicated statutory right was involved, the requirement of additional safeguards can be reconciled with Endicott Johnson.(270)

The Finberg decision was preceded, and perhaps facilitated, by the U.S. Supreme Court's earlier holding in Sniadach v. Family Finance Corp..(271) The Sniadach Court held that, because garnishment of wages is such a severe deprivation and the possibility for grave injustice is so manifest, due process requires that it be preceded by notice to the debtor and an opportunity for a hearing.(272) This holding, in a prejudgment attachment case, rested entirely on the Court's characterization of wages as a type of property unique in our economic system.(273) Following Sniadach, the Court held in Fuentes v. Shevin(274) that a replevin statute violated due process because it failed to provide the debtor with notice and an opportunity to dispute the creditor's claim of default.(275) Fuentes is significant, not for its holding but for its dissent. The "balancing of interests" approach advocated in the dissent(276) was adopted as the majority's opinion in Mitchell v. W. T. Grant Co.(277) This approach, as noted earlier, represents the Court's current position on due process.(278) The Mitchell Court deemed it critically important that a judge was involved in the process to assure that the debtor was not left to the "unsupervised mercy of the creditor and court functionaries."(279) Mitchell also reflects a shared understanding among the concurring and dissenting justices that the pro-debtor opinion in Fuentes had been overruled.(280)

Mitchell's "shared understanding" was somewhat muddled, however, in North Georgia Finishing, Inc. v. Di-Chem, Inc.(281) In North Georgia, the Court invalidated as unconstitutional a Georgia statute that allowed the creditor to garnish the property of an alleged debtor under certain procedural safeguards but without a hearing prior to the garnishment or attachment of the debtor's assets.(282)

Of the foregoing cases, only Finberg involved post-judgment garnishment. It concerned the issue of exempt property and ruled for the debtor.(283) Sniadach, Fuentes, Mitchell, and North Georgia all involved prejudgment garnishment. Mitchell, contemplating some judicial intervention, ruled for the creditor. But Sniadach, concerning wages; Fuentes, concerning consumer goods; and North Georgia, contemplating no judicial intervention, all ruled for the debtor. Can these various holdings be reconciled? To what extent are they applicable by analogy or otherwise to the recognition and enforcement of foreign country judgments?

It should be borne in mind that the Texas appellate courts did not strike down the procedures of the Uniform International Act as constitutionally insufficient.(284) They found them constitutionally nonexistent, except, in the case of Hennessy, by what the other two courts thought was impermissible judicial legislation.(285) If the Uniform International Act had operated as its creators apparently thought it would, the procedures to be scrutinized for due process constitutionality of enforcement would be those of the 1948 Interstate Act and, by extension, those ultimately adopted in the 1964 Interstate Act. For recognition alone, compliance would automatically occur whenever res judicata or collateral estoppel issues arose in already pending litigation.(286)

The cumulative effect of the various holdings in Endicott Johnson, Finberg, Sniadach, Fuentes, Mitchell, and North Georgia confirms the constitutionality of the 1964 Interstate Act procedures, and a fortiori those of the 1948 Interstate Act.(287) The sine qua non for satisfying the dictates of due process is that the judgment debtor have an opportunity to present defenses by motion to set aside registration at some point before his property is finally taken on execution.(288) This the 1964 Interstate Act provides.(289) So does the Texas International Act as amended in 1989, described and discussed in the following section.(290)

The law was aptly summarized as follows by the Colorado Supreme Court in Gedeon v. Gedeon, referred to above(291):

It is not entirely clear what precisely due process requires by way of procedures for post-judgment filings such as this. However, when the creditor's interest in collecting a valid judgment is balanced against the debtor's interest in keeping his property, which has already been protected by prior notice and hearing, in our view, the due process requirements of the United States Constitution, amend. XIV, are satisfied by the procedures of the Act. The Act requires that notice be mailed to the last known address of the debtor and that there be a ten-day stay of execution. The Act also has liberal provisions for an additional stay of enforcement of the judgment and for further hearings. While these proceduresmay not comply with the strict requirements of Fuentes,... those procedures are not required in post-judgment proceedings.(292)

It will be recalled that the appeal from Gedeon was dismissed by the U.S. Supreme Court for want of a substantial federal question.(293)

We now consider the remedial measures taken by Texas to cure the supposed unconstitutionality of its Uniform International Act.

VII. TEXAS AMENDMENTS OF 1989

The response of the international bar in Texas to the Detamore decision(294) was prompt, organized, and forceful.(295) At the insistance of its international law section, the State Bar of Texas adopted a draft of proposed amendments to the Texas International Act and included it as part of its legislative agenda for the 1989 session of the legislature.(296) The author of the draft explained that the purpose was to overrule Detamore and to "aid in renewing the growth of Texas as an international business and financial center "(297) This would be accomplished by making "it as simple as possible to enforce valid foreign country! judgments in Texas, . . . thereby assuring! the enforcement of Texas judgments in foreign countries that condition their recognition of foreign judgments on reciprocity."(298) The State Bar draft also contained a provision deleting from the Texas International Act its nonuniform discretionary lack of reciprocity ground for nonrecognition.(299)

The draft, essentially as proposed by the State Bar but without repeal of the anachronistic reciprocity provision, was passed by the legislature and became law on June 14, 1989.(300) The commentators concur that the amendments "cure" the constitutional doubts and that the new provisions simplify substantially the recognition and enforcement in Texas of foreign country judgments.(301)

In summary, the 1989 amendments provide as follows:

1. The party seeking recognition of a foreign country judgment is to file an authenticated copy of thejudgment in the judgment debtor's county or in any other court of competent jurisdiction permitted by Texas venue laws.(3O2)

2. The county clerk is to mail notice of the filing to the party against whom recognition is sought.(303) As an alternative, the party seeking recognition may himself mail notice and file proof of same with the clerk.(304)

3. A party against whom recognition is sought may contest recognition within 30 days after service of notice of filing. This is extended to 60 days if the party is domiciled in a foreign country.(305)

4. Within 20 days following service of the motion for nonrecognition, the party seeking recognition must file its response.(306) Either party may request an evidentiary hearing, which the court may grant or not at its discretion.(307) The court may refuse recognition only on those grounds specified in the Uniform International Act.(3O8)

5. The general recognition and enforcement section now reads as follows:

Except as provided by Section 36.005 Grounds for Nonrecognition!, a foreign country judgment that is filed with notice given as provided by this chapter, that meets the requirement of Section 36.002 Applicability!, and that is not refused recognition under Section 36.0044 Recognition and Enforcement! is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The judgment is enforceable in the same manner as a judgment of a sister state that is entitled to full faith and credit.(3O9)

The Texas "cure" was, in essence, to specify a registration procedure for recognition under the Texas International Act. This procedure is quite similar to that required by the Uniform Inter-state Act when enforcement of a sister state judgment is sought. The Texas amendment thus provides the missing procedure for cases in which recognition, either alone or as a prerequisite to enforcement, is sought under the Texas International Act. No doubt this is a serviceable solution to the due process problem. In fact the notice and hearing procedures would appear even to exceed the minimum standards required by U.S. Supreme Court decisions.(31O) To the extent those protective standards are exceeded, qualification for recognition abroad of Texas judgments is unnecessarily impaired. The more burdensome the procedure, the weaker the case for reciprocity. But the less burdensome the procedure, the stronger the case for reciprocity. The work of the drafter in this area is thus the art of the aerialist. The balance should be as near to perfect equilibrium as possible.

An additional problem with the Texas "cure" is that it would appear to require essentially redundant procedures when recognition and enforcement are sought. Are there alternatives to the Texas solution? Before answering that question, we turn to the experience of other states that have adopted the Uniform International Act.

VIII. EXPERIENCE OF OTHER STATES

Uniform Laws Annotated lists twenty-two states that have adopted the Uniform International Act: Alaska, California, Colorado, Connecticut, Georgia, Idaho, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Virginia, and Washington.(311)

Nineteen of those twenty-two states have also adopted the 1964 Interstate Act.(312) The three who have not are California, Massachusetts, and Michigan.(313) None of the three has adopted the 1948 Interstate Act.(314) California has its own Sister State Money-Judgments Act,(315) considered below, so that in Massachusetts and Michigan the effect of the pour-over enforcement provision in the Uniform International Act is to remit the judgment creditor to a new suit on the original judgment.(316) In such cases, there is obviously no problem with the due process requirement. It is subsumed and satisfied as part of the new suit.(317)

Although California now has its own Sister State Money-Judgments Act, modeled on the 1964 Interstate Act but narrower in scope and departing substantially from it,(318) its Uniform International Act expressly excludes resort to the Sister State Money-Judgments Act for enforcement.(319) Thus the only way to enforce a foreign country judgment in California is through a new suit on the foreign judgment, the same as in Massachusetts and Michigan.(320)

At one time, California was at the opposite end of the recognition-enforcement spectrum. A law enacted in 1907 gave a foreign country judgment the same effect as a judgment rendered in California.(321) In literal terms, this extended greater effect to the judgments of foreign countries than to the judgments of sister states.(322) The purpose was to facilitate the enforcement abroad of California judgments, especially those against insurance companies for claims arising out of the 1906 earthquake and fire.(323) The experiment began to fail in 1909, when the German courts found lack of California reciprocity for German judgments, but the law remained on the books.(324) Its provisions were fairly regarded as both "much too sweeping" and "ineffective."(325) In practice the literal terms were ignored,(326) and a new suit on the original judgment was in fact required.(327) Then in 1967, foreign country money judgments were excluded from the purview of the 1907 Act by adoption of the Uniform International Act.(328) This meant that foreign country non-money judgments were still equivalent to California judgments under the 1907 Act but that foreign country money judgments required a new suit for enforcement. Confusion produced by this anomalous and disparate treatment was dispelled by repeal of the 1907 Act in 1974.(329) Thus, since 1974, all foreign country judgments require a new action for enforcement.

The California experience is instructive for two reasons: (1) sweeping validation of foreign countryjudgments simply did not produce the desired effects; and (2) it was nevertheless the model that was cited and praised by the authors of the Uniform International Act.(330) This raises doubts about the efficacy of the Uniform International Act, and at the same time supports the conclusion that due process for the enforcement phase was simply taken for granted, without proper consideration.(331)

Colorado's Uniform International Act, adopted in 1977, is patently nugatory.(332) It comes into play only when the foreign judgment is rendered in a country with which the United States has a reciprocal recognition of judgments treaty.(333) No such treaties exist and none are likely in the near future.(334) The essentially inoperative character of the legislation is something that apparently has escaped the notice of commentators.(335)

New York was sensitive to the procedural dimension from the outset. In studies prepared for the Judicial Conference of the State of New York in 1968, concerning the two Uniform Interstate Acts and the Uniform International Act, it was recommended that the registration procedure of the 1964 Interstate Act not be used as a pour-over from the Uniform International Act:

Objection has been made to the suggestion that a registration procedure be made available to foreign judgments, especially if such a procedure should take the form of the Uniform Foreign Judgments Enforcement Act (Revised 1964 Act), principally on the ground that registration need not be preceded or accompanied by a judicial determination of the judgment's validity under foreign or domestic standards. However, the judgment debtor is notified of the registration and may contest and defeat registration. Unless the judgment creditor is acting against his own self interest or is engaging in harassing techniques, he will not seek registration in a place where the debtor is neither present nor has substantial assets. Thus, in a normal case, it would seem that no undue burden would be placed on a judgment debtor. But concededly, the varying procedural and substantive systems that produce foreign country judgments reaching these shores may demand separate treatment for enforcement.(336)

And again, as to enforcement of foreign country judgments through registration:

It was at first thought that foreign country judgments could be enforced ... by a registration procedure such as the second enforcement act provides. Provision is made for notice, so the judgment debtor would have opportunity to quash the registration proceedings by taking appropriate and timely measures. Since it would be unlikely that the judgment creditor would seek registration in a state where neither the judgment debtor nor his property was present, the probability of the debtor's being unknowingly victimized seemed low. However, it has been suggested that such a procedure, at least insofar as it may be made applicable to foreign country judgments, is unduly burdensome to judgment debtors, especially those against whom default judgments have been entered. Moreover, concern was expressed that the doors would be opened to highly questionable judgments emanating from highly questionable legal systems, all the more dangerous because the 1964 Act makes no provision for judicial, or even quasi-judicial overseeing in the first instance.(337)

At no point in the lengthy and thorough consideration of the three uniform acts by New York did these qualms about notice and hearing congeal into a question of constitutional magnitude. Rejection of simple registration was "preferable."(338) Simple registration would be "unduly burdensome" to judgment debtors.(339) It would be "unwise" to allow simple registration.(340) Thus:

It was the feeling of the members of the Committee, shared by virtually all the experts in the field, to whom the proposed act was submitted for evaluation, that the benefits of the registration statute in its 1964 version go far beyond the privileges and courtesies normally extended to foreign country judgments. The registration statute is well suited for the enforcement ofjudgments of courts operating within a federal system of sister states, but it would be unwise to extend its applicability beyond it.

As Professor Ruth E. Ginsberg sic Ruth B. Ginsburg! put it in a letter responding to the Committee's request for comments: "It may be asked whether application of the 1964 Act to foreign country judgments is not an over-response to the high value foreign nations place on abbreviated enforcement procedures."(341)

Then-professor Ginsburg(342) had submitted her own proposals for procedures hat are not substantially different from those adopted as amendments by Texas in 1989.(343) In all of the extensive legislative history for New York's adoption of the 1964 Interstate Act and the Uniform International Act, there are few references to the constitutional problem; furthermore, those references involve only domestic concerns and are largely dismissive. The Committee to Advise and Consult on the Civil Practice Law and Rules of New York, for instance, found that " s!ixteen years of experience with thefederal registration statute apparently have laid to rest any lingering fears as to the constitutionality or feasibility of a streamlined registration procedure at the state level."(344)

The product of New York's doubts about feasibility of simple registration was to amend the Uniform International Act to eliminate the pour-over to the 1964 Interstate Act and to require enforcement by (1) the traditional method of a new suit on the judgment, (2) a motion for summary judgment in lieu of complaint, or (3) a counterclaim, cross-claim, or affirmative defense in a pending action.(345)

The summary judgment motion technique is available generally for other matters, such as judgments and money-only instruments.(346) Questions about the validity of a judgment or the jurisdiction on which it was based are for the court to decide following notice and hearing.(347)

The inclusion of "affirmative defense," although in the sentence concerning "enforcement," obviously refers only to "recognition." This blurring of the distinction is fairly common in American usage.(348)

New York thus avoided the constitutional problem by avoiding the pour-over into the 1964 Uniform Interstate Act. It did this while entirely conscious of the Uniform International Act's principal attraction for New York: to facilitate enforcement of New York judgments abroad through proof of codified reciprocity.(349)

Statutes and cases from the other states that have adopted the Uniform International Act and the 1964 Interstate Act shed little or no light on the problem at hand. The statutes follow the Uniform International Act except for several that either permit or require refusal to recognize because of lack of a foreign reciprocity.(350) In the cases a few anomalies of interpretation have arisen that do no more than reveal relatively innocuous carelessness or confusion as to applicability.(351)

The question is, then, should a state that has or is considering a "pristine" Uniform International Act follow the example of Texas? Of California? Of New York? Adopt some other formula? Or just leave well enough alone?

IX. AN ALTERNATIVE APPROACH

Texas, California, and New York have dealt in their separate ways with the Uniform International Act's absence of procedure for recognizing foreign country judgments. The crux of the Hennessy-Detamore analysis is the failure of the Uniform International Act to provide an effective pour-over for enforcement to the 1964 Interstate Act. An alternative approach designed to fulfill the objectives of the Uniform International Act and to cure its evident textual deficiencies would be as follows. First, each act should refer to the other. Thus, section 1 of the 1964 Interstate Act would read:

sec1. DEFINITION

In this act "foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, or any foreign judgmnt as defined in section 1 of the Uniform Foreign Money-Judgments Recognition Act.(352)

Section 3 of the Uniform International Act would correspondingly read:

sec3. RECOGNITION AND ENFORCEMENT

Except as provided in section 4, a foreign judgment meeting the requirements of section 2 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit. The enforcement procedures provided by the Uniform Enforcement of Foreign Judgments Act are available to a qualifying foreign judgment.(353)

This still leaves unattended the problem of when the foreign country judgment is scrutinized for qualification--that is, recognition, whether for purposes of subsequent enforcement or of recognition standing alone, including an action for declaratory judgment. This could be covered by adding further to section 3 of the Uniform International Act as follows:

sec3. RECOGNITION AND ENFORCEMENT

Except as provided in section 4, a foreign judgment meeting the requirements of section 2 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The conclusive effects of such a foreign judgment shall be determined and recognized in any pending action or in any proceedings for enforcement. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit. The enforcement procedures provided by the Uniform Enforcement of Foreign Judgments Act are available to a qualifying foreign judgment.(354)

The key word in the above amendment is obviously "determined." It is the missing arch that completes the span from inernational to interstate. The recognition criteria of the Uniform International Act will now simply be invoked whenever and wherever relevant to decide the issue.

The foregoing set of amendments would carry out the objectives of the Uniform International Act and cure the Hennessy-Detamore problem.(355) But are they the best way to do it?

X. CONCLUSION

It is possible, of course, that the Hennessy-Detamore analysis is wrong and that the Uniform International Act is not potentially unconstitutional. One could simply infer that recognition is to be granted or denied whenever it is relevant to decide the issue,including a procedure for enforcement under either of the two Interstate Acts. Nevertheless, these cases represent a respectable point of view and therefore a problem that needs to be addressed.

Any approach to solving the problem should be guided and informed by the twin policy objectives of producing (1) the most streamlined procedure that is consistent with the due process requirements of the United States Constitution, and (2) the appearance and reality of certainty sufficient to promote the recognition of U.S. judgments abroad.

The California "solution" fails with regard to both objectives. The New York approach is decidedly better but may provide more process than is due. Similarly, the recent Texas legislation would seem, in some circumstances, to require virtually redundant procedures, and, to that extent, the problem may have been "over-solved." Most states that have adopted the Uniform International Act have not confronted the Hennessy-Detamore problem. Nor of course have states that have not adopted the uniform legislation. If and when they do, they should seriously consider the simple solution proposed in Part IX of this Article.

XI. APPENDICES

A. UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT (1948 INTERSTATE ACT)

sec1. DEFINITIONS

As used in this Act

(a) "Foreign judgment" means any judgment, decree or order of a court of the United States or of any State or Territory which is entitled to full faith and credit in this state.

(b) "Register" means to file and! docket and! record! a foreign judgment in a court of this state.

(c) "Levy" means to take control of or create a lien upon property under any judicial writ or process whereby satisfaction of a judgment may be enforced against such property.

(d) "Judgment debtor" means the party against whom a foreign judgment has been rendered.

sec2. REGISTRATION OF JUDGMENT

On application made within the time allowed for bringing an action on a foreignjudgment in this state, any person entitled tobring such action may have a foreignjudgment registered in any court of this state having jurisdiction of such an action.

sec3. APPLICATION FOR REGISTRATION

A verified! petition! for registration shall set forth a copy of the judgment to be registered, the date of its entry and the record of any subsequent entries affecting it such as levies of execution, payments in partial satisfaction and the like! all authenticated in the manner authorized by the laws of the United States or of this state, and a prayer that the judgment be registered. The Clerk of the registering court shall notify the clerk of the court which rendered the original judgment that application for registration has been made, and shall request him to file this information with the judgment.

sec4. PERSONAL JURISDICTION

At any time after registration the petitioner! shall be entitledto have summons! issued and! served upon the judgment debtor as in an action brought upon the foreign judgment,in any manner authorized by the law of this state for obtaining jurisdiction of the person.

sec5. NOTICE IN ABSENCE OF PERSONAL JURISDICTION

If jurisdiction of the person of the judgment debtor cannot be obtained, a notice! summons! ciearly designating the foreign judgment and reciting the fact of registration, the court in which it is registered, and the time allowed for pleading, shall be sent by the Clerk of the registering court by registered mail to the last known address of the judgment debtor. Proof of such mailing shall be made by certificate of the Clerk.

sec6. LEVY

At any time after registration and regardless of whether jurisdiction of the person of the judgment debtor has been secured or final judgment has been obtained, a levy may be made under the registered judgment upon any property of the judgment debtor which is subject to execution or other judicial process for satisfaction of judgments.

sec7. NEW PERSONAL JUDGMENT

If the judgment debtor fails to plead within sixty days! after jurisdiction over his person has been obtained, or if the court after hearing has refused to set the registration aside, the registered judgment shall become a final personal judgment of the court in which it is registered.

sec8. DEFENSES

Any defense set-off! counter-claim! or cross complaint! which under the law of this state may be asserted by the defendant in an action on the foreign judgment may be presented by appropriate pleadings and the issues raised thereby shall be tried and determined as in other civil actions. Such pleadings must be filed within sixty days! after personal jurisdiction is acquired over him or within sixty days! after the mailing of the notice prescribed in section 5.

sec9. PENDENCY OF APPEAL

If the judgment debtor shows that an appeal from the original judgment is pending or that he is entitled and intends to appeal therefrom, the court shall, on such terms as it thinks just, postpone the trial for such time as appears sufficient for the appeal to be concluded, and may set aside the levy upon proof that the defendant has furnished adequate security for satisfaction of the judgment.

sec1O. EFFECT OF SETTING ASIDE REGISTRATION

An order setting aside a registration constitutes a final judgment! in favor of the judgment debtor.

sec11. APPEAL

An appeal may be taken by either party from any judgment! order! or decision! sustaining or setting aside a registration on the same terms as an appeal for a judgment! order! or decision! of the same court.

sec12. NEW JUDGMENT QUASI IN REM

If personal jurisdiction of the judgment debtor is not secured within sixty days! after the levy and he has not, within sixty days! after the mailing of the notice prescribed by section 5, acted to set aside the registration or to assert a set-offJ counter-claim! or cross-complaint! the registered judgment shall be a final judgment quasi in rem of the court in which it is registered, binding upon the judgment debtor's interest in property levied upon, and the court shall enter an order to that effect.

sec13. SALE UNDER LEVY

Sale under the levy may be held at any time after final judgment, either personal or quasi in rem, but not earlier except as otherwise provided by law for sale under levy on perishable goods. Sale and distribution of the proceeds shall be made in accordance with the law of this state.

sec14. INTEREST AND COSTS

When a registered foreign judgment becomes a final judgment of this state, the court shall include as part of the judgment interest payable on the foreign judgment under the law of the state in which it was rendered, and the cost of obtaining the authenticated copy of the original judgment. The court shall include as part of its judgment court costs incidental to the proceeding in accordance with the law of this state.

sec15. SATISFACTION OF JUDGMENT

Satisfaction, either partial or complete, of the original judgment or of a judgment entered thereupon in any other state shall operate to the same extent as satisfaction of the judgment in this state, except as to costs authorized by section 14.

sec16. OPTIONAL PROCEDURE

The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this Act remains unimpaired.

sec17. UNIFORMITY OF INTERPRETATION

This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

sec18. SHORT TITLE

This act may be cited as the Uniform Enforcement of Foreign Judgments Act.

sec19. REPEAL

All acts or parts of acts which are inconsistent with the provisions of this act are hereby repealed.

B. UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT (1964 Interstate Act)

sec1. DEFINITION

In this Act "foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.

sec2. FILING AND STATUS OF FOREIGN JUDGMENTS

A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the Clerk of any District Court of any city or county! of this state. The Clerk shall treat the foreign judgment in the same manner as a judgment of the District Court of any city or county! of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a District Court of any city or county! of this state and may be enforced or satisfied in like manner.

sec3. NOTICE OF FILING

(a) At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the Clerk of Court an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor.

(b) Promptly upon the filing of the foreign judgment and the affidavit, the Clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket The notice shall include the name and post office address of the judgment creditor and the judgment creditor's lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the Clerk. Lack of mailing notice of filing by the Clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.

(c) No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until ! days after the date the judgment is filed.!

sec4. STAY

(a) If the judgment debtor shows the District Court of any city or county! that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that thejudgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.

(b) If the judgment debtor shows the District Court of any city or county! any ground upon which enforcement of a judgment of any District Court of any city or county! of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

sec5. FEES

Any person filing a foreign judgment shall pay to the Clerk of Court--dollars. Fees for docketing, transcription or other enforcement proceedings shall be as provided for judgments of the District Court of any city or county of this state!.

sec6. OPTIONAL PROCEDURE

The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this Act remains unimpaired.

sec7. UNIFORMITY OF INTERPRETATION

This Act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

sec8. SHORT TITLE

This Act may be cited as the Uniform Enforcement of Foreign Judgments Act.

sec9. REPEAL

The following Acts and parts of Acts are repealed: (1)

(2)

(3)

sec1O. TAKING EFECT

This Act takes effect on-

C. UNIFORM FOREIGN MONEY-JUDGMENTS RECOGNITION ACT (UNIFORM INTERNATIONAL ACT)

sec1. DEFINITIONS!

As used in this Act:

(1) "foreign state" means any governmental unit other than the United States, or any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands;

(2) "foreign judgment" means any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters.

sec2. APPLICABILITY!

This Act applies to any foreign judgment that is final and conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal.

sec3. RECOGNITION AND ENFORCEMENT!

Except as provided in section 4, a foreign judgment meeting the requirements of section 2 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.

sec4. GROUNDS FOR NON-RECOGNITION!

(a) A foreign judgment is not conclusive if

(1) the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;

(2) the foreign court did not have personal jurisdiction over the defendant; or

(3) the foreign court did not have jurisdiction over the subject matter.

(b) A foreign judgment need not be recognized if

(1) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend;

(2) the judgment was obtained by fraud;

(3) the cause of action! claim for relief! on which the judgment is based is repugnant to the public policy of this state;

(4) the judgment conflicts with another final and conclusive judgment;

(5) the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or

(6) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.

sec5. PERSONAL JURISDICTION!

(a) The foreign judgment shall not be refused recognition for lack of personal jurisdiction if

(1) the defendant was served personally in the foreign state;

(2) the defendant voluntarily appeared in the proceedings, other than for the purpose of protecting property seized or threatened with seizure in the proceedings or of contesting the jurisdiction of the court over him;

(3) the defendant prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;

(4) the defendant was domiciled in the foreign state when the proceedings were instituted, or, being a body corporate had its principal place of business, was incorporated, or had otherwise acquired corporate status, in the foreign state;

(5) the defendant had a business office in the foreign state and the proceedings in the foreign court involved a cause of action! claim for relief! arising out of business done by the defendant through that office in the foreign state; or

(6) the defendant operated a motor vehicle or airplane in the foreign state and the proceedings involved a cause of action! claim for relief! arising out of such operation.

(b) The courts of this state may recognize other bases of jurisdiction.

sec6. STAY IN CASE OF APPEAL!

If the defendant satisfies the court either that an appeal is pending or that he is entitled and intends to appeal from the for- eign judgment, the court may stay the proceedings until theappeal has been determined or until the expiration of a period of time sufficient to enable the defendant to prosecute the appeal.

sec7. SAVINGS CLAUSE!

This Act does not prevent the recognition of a foreign judgment in situations not covered by this Act.

sec8. UNIFORMITY OF INTERPRETATION!

This Act shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

sec9. SHORT TITLE!

This Act may be cited as the Uniform Foreign Money-Judgments Recognition Act.

sec1O. REPEAL!

The following Acts are repealed:

(1)

(2)

(3).!

sec11. TIME OF TAKING EFFECT!

This Act shall take effect-

D. TEXAS UNIFORM FOREIGN COUNTRY MONEY-JUDGMENT RECOGNITION ACT (TEXAS INTERNATIONAL ACT)

sec36.001. DEFINITIONS

In this chapter:

(1) "Foreign country" means a governmental unit other than:

(A) the United States;

(B) a state, district, commonwealth, territory, or insular possession of the United States;

(C) the Panama Canal Zone; or

(D) the Trust Territory of the Pacific Islands.

(2) "Foreign country judgment" means a judgment of a foreign country granting or denying a sum of money other than a judgment for:

(A) taxes, a fine, or other penalty; or ( B) support in a matrimonial or family matter.

sec36.002. APPLICABILITY

(a) This chapter applies to a foreign country judgment:

(1) that is final and conclusive and enforceable where rendered, even though an appeal is pending or the judgment is subject to appeal; or

(2) that is in favor of the defendant on the merits of the cause of action and is final and conclusive where rendered, even though an appeal is pending or the judgment is subject to appeal.

(b) This chapter does not apply to a judgment rendered before June 17, 1981.

sec36.003. SHORT TITLE

This chapter may be cited as the Uniform Foreign Country Money-Judgment Recognition Act.

sec36.004. RECOGNITION AND ENFORCEMENT

Except as provided by Section 36.005, a foreign country judgment that is filed with notice given as provided by this chapter,that meets the requirements of Section 36.002, and that is not refused recognition under Section 36.0044 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The judgment is enforceable in the same manner as a judgment of a sister state that is entitled to full faith and credit.

sec36.0041 FILING

A copy of a foreign country judgment authenticated in accordance with an act of congress, a statute of this state, or a treaty or other international convention to which the United States is a party may be filed in the office of the clerk of a court in the county of residence of the party against whom recognition is sought or in any other court of competent jurisdiction as allowed under the Texas venue laws.

sec36.0042 AFFIDAVIT; NOTICE OF FILING

(a) At the time a foreign country judgment is filed, the party seeking recognition of the judgment or the party's attorney shallfile with the clerk of the court an affidavit showing the name and last known post office address of the judgment debtor and the judgment creditor.

(b) The clerk shall promptly mail notice of the filing of the foreign country judgment to the party against whom recognition is sought at the address given and shall note the mailing in the docket.

(c) The notice must include the name and post office address of the party seeking recognition and that party's attorney, if any, in this state.

sec36.0043 ALTERNATE NOTICE OF FILING

(a) The party seeking recognition may mail a notice of the filing of the foreign country judgment to the other party and may file proof of mailing with the clerk.

(b) A clerk's lack of mailing the notice of filing does not affect the conclusive recognition of the foreign country judgment under this chapter if proof of mailing by the party seeking recognition has been filed.

sec36.0044 CONTESTING RECOGNITION

(a) A party against whom recognition of a foreign country judgment is sought may contest recogniton of the judgment if, not later than the 30th day after the date of service of the notice of filing, the party files with the court, and serves the opposing party with a copy of, a motion for nonrecognition of the judgment on the basis of one or more grounds under Section 36.005. If the party is domiciled in a foreign country, the party must file the motion for nonrecognition not later than the 60th day after the date of service of the notice of filing.

(b) The party filing the motion for nonrecogniton shall include with the motion all supporting affidavits, briefs, and other documentation.

(c) A party opposing the motion must file any response, including supporting affidavits, briefs, and other documentation, not later than the 20th day after the date of service on that party of a copy of the motion for nonrecognition.

(d) The court may, on motion and notice, grant an extension of time, not to exceed 20 days unless good cause is shown, for the filing of a response or any document that is required to establish a ground for nonrecognition but that is not available withing the time for filing the document.

(e) A party filing a motion for nonrecognition or responding to the motion may request an evidentiary hearing tht the court may allow in its discretion.

(f) The court may at any time permit or require the submission of argument, authoritites, or supporting material in addition to that provided for by this section.

(g) The court may refuse recogniton of the foreign country judgment if the motions, affidavits, briefs, and other evidence before it establish grounds for nonrecognition as specified in Section 36.005, but the court may not, under any circumstances, review the foreign country judgment in relation to any matter not specified in Section 36.005.

sec36.005 GROUNDS FOR NONRECOGNITION

(a) A foreign country judgment is not conclusive if:

(1) the judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;

(2) the foreign country court did not have personal jurisdiction over the defendant; or

(3) the foreign country court did not have jurisdiction over the subject matter;

(b) A foreign country judgment need not be recognized if:

(1) the defendant in the proceedings in the foreign country court did not receive notice of the proceedings in sufficient time to defend;

(2) the judgment was obtained by fraud;

(3) the cause of action on which the judgment is based is repugnant to the public policy of this state;

(4) the judgment conflicts with another final and conclusive judgment;

(5) the proceeding in the foreign country court was contrary to an agreement between the parties under which the dispute in questin was to be settled otherwise than by proceedings in tht court;

(6) in the case of jurisdiction based only on personnel service, the foreign country court was a seriusly inconvenient forum for the trial of the action; or

(7) it is established that the foreign country in which the judgment was rendered does not recognize judgments rendered in this state that, but for the fact that they are rendered in this state, conform to the definition of "foreign country judgment."

sec36.006 PERSONAL JURISDICTION

(a) A court may not refuse to recognize a foreign country judgment for lack of personal jurisdiciton if:

(1) the defendant was served personally in the foregin country;

(2) the defendant voluntarily appeared in the proceedings, other than for the purpose of protecting property seized or threatened with seizure in the proceedings or of contesting the jurisdiction of the court over him;

(3) the defendant prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign country court with respect to the subject matter involved;

(4) the defendant was domiciled in the foreign country when the proceedings were instituted or, if the defendant is a body corporate, had its principal place of business, was incorporated, or had otherwise acquired corporate status in the foreign country;

(5) the defendant had a business office in the foreign country and the proceedings in the foreign country court involved a cause of action arising out of business done by the defendant through that office in the foreign country; or

(6) the defendant operated a motor vehicle or airplane in the foreign country and the proceedings involved a cause of action arising out of operation of the motor vehicle or airplane.

(b) A court of this state may recognize other bases of jurisdiciton.

sec36.007 STAY IN CASE OF APPEAL

If the defendant satisfies the court either that an appeal is pending or that the defendant is entitled and intends to appeal from the foreign country judgment, the court may stay the proceedings until the appeal has been determined or until a period of time sufficient to enable the defendant to prosecute the appeal has expired.

sec36.008 OTHER FOREIGN COUNTRY JUDGMENTS

This chapter does not prevent the recognitoin of a foreign country judgment in a situation not covered by this chapter.

1. That arbitration is the vehicle of choice is claimed with almost liturgical uniformity in everything recently published in the field of international commercial arbitration. See, e.g., ALAN REDFERN & MARTIN HUNTER, LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION 22 (2d ed. 1991) (stating that " m!ost international trade disputes are resolved by arbitration"). For a recent summary of the subject emphasizing the important role of arbitral institutions, see Richard J. Graving, The International Commercial Arbitration Institutions: How Good a Job Are They Doing?, 4 AM. U. J. INT'L L. 9c POL'Y 319 (1989).

2. See George T. Yates III, Arbitration or Court Litigation for Private International Dispute Resolution: The Lesser of Two Evils, in RESOLVING TRANSNATIONAL DISPUTES THROUGH INTERNATIONAL ARBITRATION 224, 226-S2 (Thomas E. Carbonneau ed., 1984) (reviewing the factors involved in the choice between litigation and arbitration); Michael Kerr, International Arbitration v. Litigation, 1980 J. Bus. L. 164, 172-77 (describing two unsuccessful arbitrations and stating that increased costs and delays are largely inevitable whenever an arbitration clause provides for an international tribunal of three arbitrators in a neutral forum).

3. See infra note 22.

4. It is important to understand that "foreign country judgment is one species or the genus "foreign judgment," which also includes "sister state judgment" within the U.S. federal system. See infra note 22. This Article focuses on the foreign country judgment; however, the recognition and enforcement of foreign country judgments often necessitates an understanding of the treatment of sister state judgments.

5. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES secs 481-488 introductory note (1986) hereinafter RESTATEMENT OF FOREIGN RELATIONS LAW!. This work is the best general account of current United States and foreign practice on recognition and enforcement of foreign judgments that is readily available in English. See also Arthur T. von Mehren & Donald T. Trautman, Recognition of Foreign Adjudications: A Survey and a Suggested Approach, 81 HARV. L. REV. 1601 (1968) (addressing the subject of foreign adjudications from a jurisprudential point of view); Arthur T. von Mehren, Recognition and Enforcement of Foreign Judgments--General Theory and the Role of Jurisdictional Requirements, 167 RECUEIL DES COURS 9, 20-54 (1980) (updating aspects of Recognition of Foreign Adjudications: A Survey and a Suggested Approach); Friedrich K. Juenger, the Recognition of Money Judgments in Civil and Commercial Matters, 36 AM.J. COMP. L. 1 (1988) (conveying a pessimistic outlook on prospects for liberalization of recognition practices); Wanda Ellen Wakefield, Annotation, Judgment of Court of Foreign Country as Entitled to Enforcement or Extraterritorial Effect in State Court, 13 A.L.R.4TH 1109 (1982) (collecting state and federal court cases applying state law); Sheldon R. Shapiro, Annotation, Valid Judgment of Court of Foreign Country as Entitled to Extraterritorial Effect in Federal District Court, 13 A.L.R. FED. 208 (1972) (collecting federal court cases applying federal law).

6. U.S. CONST. art. IV, sec1.

7. RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 5, introductory note; see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS 98 cmt. b (1969) hereinafter RESTATEMENT OF CONFLICTS! (comparing foreign and sister state judgments). The Restatement of Conflicts is more than 20 years old and suffers from what many regard as a lack of "courage." See, e.g., Courtland H. Peterson, Foreign Country Judgments and the Second Restatement of Conflict of Laws, 72 COLUM. L. REV. 220, 264 (1972) (complaining that a "disappointingly laconic approach seems to have dominated its the Restatement (Second) of Conflict of Laws! treatment of foreign country judgments").

8. UNIF. FOREIGN MONEY-JUDGMENTS RECOGNITION ACT, 13 U.L.A. 261 (West 1986 & Supp. 1992) hereinafter UNIFORM INTERNATIONAL ACT!. A copy of this Act is reproduced as Appendix C.

9. Id. The phrase "said to be in effect" is employed because the versions adopted in some states depart significantly in certain respects from the uniform model law. For a discussion of, inter alia, these variations, see infra notes 311-351 and accompanying text. The abbreviation "Uniform International Act" is employed for several reasons: (1) to distinguish that Act from the 1948 and 1964 Uniform Enforcement of Foreign Judgments Acts, which are applicable only to interstate judgments, i.e., sister state judgments, see infra text accompanying notes 45-72; (2) to place emphasis, for reasons of analytical clarity and convenience, on the international-interstate distinction, rather than the recognition-enforcement dichotomy, see infra note 22 and text accompanying note 125; and (3) to avoid the inevitable confusion of acronyms such as UFMJRA, UFCMJRA, or UEFJA.

10. UNIFORM INTERNATIONAL ACT, supra note 8, prefatory note, 13 U.L.A. at 261-62.

11. Id. sec3, 13 U.L.A. at 265.

12. Plastics Eng'g Inc. v. Diamond Plastics Corp., 764 S.W.2d 924 (Tex. Ct. App. 1989); Detamore v. Sullivan, 7S1 S.W.2d 122 (Tex. Ct. App. 1987). For further discussion of these cases, see infra notes 176-205 and accompanying text.

13. Hennessy v. Marshall, 682 S.W.2d 340 (Tex. Ct. App. 1984). For further discussion of this case, see infra notes 176-205 and accompanying text.

14. TEX. CIV. PRAC. & REM. CODE ANN. sec36.004 (West 1986 & Supp. 1992). A copy of the Texas International Act is reproduced as Appendix D. 15. Maria Luisa Flores & Fernando A. Dubove, State Bar Legislative Program: Final Disposition by 71st Legislature, 52 TEX. B.J. 890 (1989) ("The bill now codified into law! corrects defects which recently caused the Court of Appeals to hold the Uniform International! Act unconstitutional."), For a comprehensive discussion of these cases, see infra notes 176-205 and accompanying text.

16. Don Docksteader Motors, Ltd. v. Patal Enters., Ltd., 794 S.W.2d 760, 761 (Tex. 1990), rev'g 776 S.W.2d 726 (Tex. Ct. App. 1989). For a comprehensive discussion of this case, see Sharon N. Freytag & Michelle E. McCoy, Annual Survey of Texas Law--Conflict of Laws, 45 SW. L.J. 149, 194 (1991).

17. See Docksteader, 794 S.W.2d at 761; in a text accompanying note 41.

18. The constitutionality of a statute is usually challenged "as applied." not "on its face." This was the case in Docksteader. Constitutionality in one application is not necessarily constitutionality in another. See Ada v. Guam Soc'y of Obstetricians & Gynecologists, 1 13 S. Ct. 633, 6S3-S4 (1992) (Scalia, J., dissenting from denial of certiorari). This elementary distinction seems to have escaped one commentator. See John E. Macey, Don Docksteader Motors, Ltd. v. Patal Enterprises, Ltd.: The Arrival of Full Faith and Credit in Texas, 17 T. MARSHALL L. REV. 359, 378-79 (1992) (opining that the Texas state legislature "was wasting its time" in 1989 by addressing a problem of purported unconstitutionality that in fact did not exist, as decided in 1990 by the Texas Supreme Court in Docksteader).

19. UNIFORM INTERNATIONAL ACT, supra note 8, sec3 cmt., 13 U.L.A. at 265. For a more thorough discussion of the Uniform International Act, see infra notes 119-140 and accompanying text.

20. See infra notes 295-310 and accompanying text.

21. Connecticut, Idaho, Iowa, Minnesota, New Mexico, Ohio, Pennsylvania, and Virginia have adopted the Act. See CONN. GEN. STAT. ANN. sec50a-30 to-38 (West Supp. 1991) (adopted in 1988); IDAHO CODE B 10-1401 to-1409 (Michie 1990) (adopted in 1990); IOWA CODE ANN. sec626B.1-B.8 (West Supp. 1991) (adopted in 1989); MINN. STAT. ANN. sec548.35 (West 1988) (adopted in 1985); N.M. STAT. ANN. sec39-4B-1 to-9 (Michie 1991) (adopted in 1991); OHIO REv. CODE ANN. 9 2329.90-.94 (Anderson 1991) (adopted in 1985); 42 PA. CONS. STAT. ANN. 22001-22009 (West 1991) (adopted in 1991); VA. CODE ANN. B 8.01-465. to-465.13 (Michie 1991) (adopted in 1990).

22. A word about our terminology is in order:

(a) "Recognition" and "enforcement" are often used conjunctively and often used synonymously; they are technically different. Recognition must precede or accompany all enforcement, but not all recognition leads to enforcement. Some foreign judgments cannot be enforced and can only be recognized, e.g., judgments for the defendant, declaratory judgments, judgments on status of parties or things, and collateral estoppel effects. See RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 5, sec481 cmt. b; RESTATEMENT OF CONFLICTS, supra note 7, sec93 introductory note; see also infra text accompanying notes 125-129.

(b) The term "state" can mean either a sister state in the American Union, a territorial unit with a distinct body of law (such as a sister state in the American Union or a political subdivision, like England or Scotland in the United Kingdom), or a politically sovereign unit recognized as such under international law (such as the United States or the United Kingdom). Our style is to indicate which meaning is meant if it is not clear from the context.

(c) The term "foreign" means foreign with respect to the forum. It includes sister states, foreign nation political subdivisions with their own bodies of law, and foreign nations. Again, we indicate which when the meaning is not otherwise clear.

Cf. 1 ALBERT V. DICEY & J.H.C. MORRIS, DICEY AND MORRIS ON THE CONFLICT OF LAWS 27-28 (Lawrence Collins et al. eds., 11th ed. 1987) (defining "state" as the whole of a territory that is subject to one sovereign power, thereby rejecting the notion that England or Scotland could be considered as a state, and defining "foreign" as simply not English); P.M. NORTH & J.J. FAWCE, CHESHIRE AND NORTHS PRIVATE INTERNATIONAL LAW 9 (12th ed. 1992) (defining "foreign system of law" as a "distinctive legal system prevailing in a territory other than that in which the court functions").

23. U.S. CONST. art. IV, sec1. Congress enacted legislation in 1948 to clarify implementation of this provision. See 28 U.S.C. sec1738 (1988).

24. See, e.g., Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523 (1985).

25. See RESTATEMENT OF CONFLICTS, sup note 7, sec98 cmt. b; see also Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525 (1931) (stating that " p!ublic policy dictates that there be an end of litigation").

26. See von Mehren & Trautman, supra note 5, at 1603-04; see also Thomas v. Washington Gas Light Co., 448 U.S. 261, 289 (1980) (White, J., concurring) (discussing various policies underlying the Full Faith and Credit Clause). The six specific objectives were formulated by von Mehren and Trautman in the context of international recognition practice but are likewise applicable, albeit with different weighting, within a federal or non-unitary national framework. This is not to say that municipal practice should merely be an echo of international practice, or vice versa. von Mehren & Trautman, supra note 5, at 1604, 1607. There are of course counter-arguments to international recognition. See ANDREAS F. LOWENFELD, INTERNATIONAL LITIGATION AND ARBITRATION 371-72 (1992) (listing distrust of other states and their systems, public policy, propriety of requiring reciprocity, and differences about jurisdiction).

27. See, e.g., Smith v. Crouse, 298 F. Supp. 1029, 1036-37 (D. Kan. 1968), aff'd on other grounds, 413 F.2d 979 (10th Cir. 1969).

28. Ruth B. Ginsburg, Recognition and Enforcement of Foreign Civil Judgments: A Summary Review of the Situation in the United States, 4 INT'L LAW. 720, 722 (1970); see RESTATEMENT OF CONFLICTS, supra note 7, sec117. But see RESTATEMENT OF CONFLICTS, supra note 7, sec103 cmt. b (noting that there are "extremely rare occasions" when this requirement will give way to a weightier individual interest).

29. See Ginsburg, supra note 28, at 723.

30. Eugene F. Scoles, Interstate and International Distinctions in Conflict of Laws in the United States, 54 CAL. L. REV. 1599, 1605 (1966).

31. Id. at 1605.

32. ROBERT A. LEFLAR ET AL., AMERICAN CONFLICTS LAW 296 (4th ed. 1986).

33. Scoles, supra note 30, at 1605.

34. Id. at 238-41; see also Browning v. Navarro, 887 F.2d 553, 563 (5th Cir. 1989) ("Other than lack of jurisdiction or fraud, there are no other federal grounds which nullify a state court judgment."); Monrad G. Paulsen, Enforcing the Money Judgment of a Sister State, 42 IOWA L. REV. 202, 204 (1957) (stating that " t!he defenses to a sister state judgment are limited to lack of jurisdiction, lack of finality, the running of the statute of limitations, and payment or discharge in bankruptcy").

35. LEFLAR ET AL., supra note 92, at 239; see also Aldrich v. Aldrich, 378 U.S. 540, 543 (1963) (per curiam) (holding that the proper recourse to challenge an allegedly erroneous judgment is by direct appeal, and not collateral attack); Milliken v. Meyer, 311 U.S. 457, 462 (1940) (stating that once jurisdiction is found to exist, the Full Faith and Credit Clause prohibits collateral attacks on the merits of the decision).

36. 28 U.S.C. sec1738 (1988).

37. EUGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS 971 & n.3 (2d ed. 1992) (citing M'Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 325 (1839)); see also LEFLAR ET AL., supra note 32, at 233-34; cf. Lynde v. Lynde, 181 U.S. 183 (1901) (distinguishing between a "judgment" and the procedures used to enforce that judgment, and holding that only the former are entitled to full faith and credit under the Constitution).

38. The second sentence of Article IV, sec1 of the Constitution authorizes Congress to prescribe by law "the Effect" to be given to sister state judgments. U.S. CONST. art. IV, sec1; see LEFLAR ET AL., supra note 32, at 233-34.

39. 28 U.S.C. & 1963 (1988). A judgment registered pursuant to this statute has the same effect as a judgment of the district court in the district of registration. Id.; see Ohio Hoist Mfg. Co. v. LiRocchi, 490 F.2d 105 (6th Cir.), cert. dismissed, 417 U.S. 9S8 (1974).

40. Nor has such legislation apparently ever been seriously considered. See, e.g., Robert A. Leflar, The New Uniform Foreign Judgments Act, 24 N.Y.U.L.Q. REV. 336, 337-38 (1949).

41. LEFLAR ET AL., supra note 32, at 233; see Paulsen, supra note 34, at 202. The common law background of enforcing foreign money judgments by commencing a new suit on the original judgment is described in Hessel E. Yntema, The Enforcement of Foreign Judgments in Anglo-American Law, 33 MICH. L. REV. 1129, 1136 (19S5).

42. See LEFLAR ET AL., sup note 32, at 232-33.

43. Id. at 233.

44. Id. A new lawsuit is not only expensive but "subjects the plaintiff to over-crowded court calendars and dilatory activity by judgment debtors." John C. Chappell & Floyd Feeney, Note, Constitutionality of a Uniform Reciprocal Registration of Judgments Statute, 36 N.Y.U. L. REV. 488, 488 (1961); see also WILLIS L.M. REESE ET AL., CONFLICT OF LAWS 238 (9th ed. 1990) (noting that the common law requirement of a new suit on the judgment is very "time-consuming").

45. UNIF. ENFORCEMENT OF FOREIGN JUDGMENTS ACT, 13 U.L.A. 181 (1986) herein-after 1948 INTERSTATE ACT!. A copy of this Act is reproduced as Appendix A.

46. For a discussion of the judgment registration procedures, see infra text accompanying notes 64-70.

47. LEFLAR ET AL., supra note 32, at 234.

48. Leflar, supra note 40, at 346-47.

49. Id.

50. Id.

51 Id. at 347.

52. Id. at 347-49.

53. LEFLAR ET AL., supra note 32, at 234-35. The terms "summary judgment procedure" and "judgment registration system" need to be understood with some caution They are not terms of art and their usage is not fixed. The authors have adopted Professor Leflar's terminology, but others have used the terms differently. See, e.g., SCOLES & HAY, supra note 37, at 971 (noting that the 1964 Interstate Act provides for a "summary proceeding," not "registration"); Werner F. Ebke & Mary E. Parker, Foreign Country Money Judgments and Arbitral Awards and the Restatement (Third) of the Foreign Relations Law of the United States: A Conventional Approach, 24 INT'L LAW. 21, 44 (1990) (noting that the 1964 Interstate Act provides for a "summary judgment-type procedure"); Adolf Homburger, Recognition and Enforcement of Foreign Judgments, 18 AM.J. COMP. L. 367, 397 (1970) (noting that the 1948 Interstate Act was a "hybrid registration statute" because it involved judicial supervision of the procedures employed); David L. Woodward, Reciprocal Recognition and Enforcement of Civil Judgments in the United States, the United Kingdom and the European Economic Community. 8 N.C.J. INT'L L. & COM. REG. 299, 301 (1983) (noting that the 1948 Interstate Act "merely restated the common law method").

54. 1948 INTERSTATE ACT, supra note 45, secs 2, 3, 13 U.L.A. at 185, 193.

55. Id. sec4, 13 U.L.A. at 194.

56. Id. sec5, 13 U.L.A. at 195.

57. Id. sec6, 13 U.L.A. at 195.

58. Id. sec7, 13 U.L.A. at 197.

59. Id. sec8, 13 U.L.A. at 197-98.

60. Id. sec7, 13 U.L.A. at 197.

61. Id. sec12, 13 U.L.A. at 202.

62. Id. sec13, 13 U.L.A. at 203.

63. UNIF. ENFORCEMENT OF FOREIGN JUDGMENTS ACT, 13 U.L.A. 149 (1986) herein-after 1964 INTERSTATE ACT!. A copy of this Act is reproduced as Appendix B.

64. Id. at 150.

65. Id.

66. Id.

67. The nine states that have not adopted the Act are: California, Indiana, Massachusetts, Michigan, Nebraska, New Hampshire, New Jersey, South Carolina, and Vermont. 1964 INTERSTATE ACT, supra note 63, at 7 (West Supp. 1992); cf. infra note 314. Only Nebraska still retains the 1948 Interstate Act. 1948 INTERSTATE ACT, supra note 45 at 21 (West Supp. 1992). But see special treatment of Missouri, infra note 314.

68. 1964 INTERSTATE ACT, supra note 63, sec2, 13 U.L.A. at 154.

69. Id. sec3, 13 U.L.A. at 172.

7O. Id. sec4, 13 U.L.A. at 175.

71. See 28 U.S.C. 196S (1988); see also supra note 39 and accompanying text.

72. While federal practice is beyond the scope of this Article, an in-depth discussion of 1963 can be found in 11 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 2787, 2865 (1973); see also Stanford v. Utley, 341 F.2d 265 (8th Cir. 1965) (indicating that for certain purposes registration equates with a new judgment on the original judgment).

73. Article IV, sec1 of the Constitution unambiguously states that it applies only I the "public Acts, Records, and judicial Proceedings of every other State." U.S. Const. art. IV, sec31 (emphasis added); see also RESTATEMENT OF CONFLICTS, supra note 7, sec31 cmt. c.

74. Ginsburg, supra note 28, at 722.

75. The term "federalization" is used here to refer to any action by the federal government that would result in the preemption of state law by virtue of the Supremacy Clause in Article VI of the Constitution. U.S. CONST. art. VI; see Robert C. Casad. Issue Preclusion and Foreign Country Judgments: Whose Law?, 70 IOWA L. REV. 53, 79 (1984) (indicating that the arguments for federalization are "strong" and the arguments against it amount to little more than advocacy of "inertia"); Richard D. Freer, Erie's Mid-Life Crisis, 63 VL. L. REV. 1087 1090 (1989) (stating that " t!he federal courts are simply ignoring Erie by stacking the deck against the application of state law"). For the leading Supreme Court case discussing when federal law can be said to have preempted inconsistent state law, see Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983).

76. See, e.g.. LEFLAR ET AL., supra note 32, at 252-53; Ginsburg, supra note 28, at 732-33; George A. Zaphiriou, Transnational Recognition and Enforcement of Civil Judgments, 53 NOTRE DAME LAW. 734 734-37 (1978); cf. Kurt H. Nadelmann, Jurisdictionally Improper Fora in Treaties on Recognition of Judgments: The Common Market Draft, 67 COLUM. L. REV. 995 (1967) (discussing various treaties in force in the European Economic Community). Then-professor Ginsburg has commented that the treaty approach appears to be more prevalent in civil law countries. Ginsburg, supra note 28. at 732-33. A brilliant analysis of the treaty approach. including the possibility of U.S. adherence to the Brussels-Lugano convention scheme, see infra note 134, is set forth in Arthur T. von Mehren. Recognition of United States Judgments Abroad and Foreign Judgments in the United States. Would International Conventions Be Useful? 1-19 (Apr. 1991) (unpublished manuscript, on file with The George Washington Journal of International Law and Economics) (summarizing remarks made by Professor von Mehren at the Max-Planck-Institut in Hamburg, Germany in 1991; full version to be published by the journal of the Max-Planck-Institut in late 1992 or 1993). Currently under study by the Hague Conference on Private International Law is a proposal by the United States. prepared by Professor von Mehren, for consideration and possible negotiation of a general multilateral treaty on jurisdiction and on recognition and enforcement of judgments. Hague Conference on Private International Law: Conclusions of the Working Group Meeting on Enforcements of Judgments, DEP'T. ST. DOC. L/PIL Doc.AC 45/HC/6 (Prelim. Doc. No. 19 of Nov. 1992) (on file with The George Washington Journal of International Law and Economics).

77. Professor Casad implicitly acknowledges the potential for congressional action in this area. but then dismisses such action by stating that it is unlikely to occur. Casad, supra note 75, at 79.

78. See LEFLAR ET AL., supra note 32, at 253. The viability of a federal common law approach is very problematic. Justice Brandeis' opinion in Erie stated that " t!here is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State .... a!nd no clause in the Constitution purports to confer such a power upon the federal courts." Erie R.R. Co. v. Tompkins. 304 U.S. 64, 78 (1938); see also John D. Brummett, Jr., Note, The Preclusive Effect of Foreign-Country Judgments in the United States and Federal Choice of Law: The Role of the Erie Doctrine Reassessed, 33 N.Y.L. SCH. L. REV. 83, 109 (1988) (stating that "it is appropriate to suggest that the Erie doctrine is inapplicable as a choice-of-law directive for federal-diversity courts in the foreign-country judgment setting"). But see Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988) ("But we have held that a few areas, involving 'uniquely federally interests,' . . . are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced . . . by federal law of a content prescribed ... by the courts, so-called 'federal common law.' "); Clearfield Trust Co. v. United States, 318 U.S. 363, 366 (194S) ("The rights and duties of the United States on commercial paper which it issues are governed by federal rather than local law.").

79. See Zschernig v. Miller, 389 U.S. 429, 440-41 (1968) (holding an Oregon statute unconstitutional because denial of inheritance rights to nonresident aliens whose countries did not grant reciprocity to U.S. citizens involved the state in foreign affairs and international relations, areas within the exclusive domain of Congress and the executive branch); see also Ginsburg, supra note 28, at 733 (noting that this area of the law is susceptible to federalization because of its "close association with foreign relations").

80. RESTATEMENT OF CONFLICTS, supra note 7, sec98 cmt. f (West Supp. 1989); Ginsburg, supra note 28, at 722. But, cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964) (holding that the act-of-state doctrine is exclusively "an aspect of federal law"). One commentary stated that it "appears extremely unlikely" that the Supreme Court would reinstate the doctrine of reciprocity enunciated in Hilton v. Guyot, 159 U.S. 113 (1895). Robert B. von Mehren & Michael E. Patterson, Recognition and Enforcement of Foreign-Country Judgments in the United States, 6 LAW 8c POL'Y INT'L Bus. 37, 48 (1974); see infra text accompanying notes 96-111. The Supreme Court might avoid the issue by applying the Erie doctrine and leaving the matter to the states, or it might "federalize" the area per Sabbatino and defer to the political branches of government. See Homburger, supra note 53, at 389-90, 405 (stating that it is "unlikely" that the Court would confirm Hilton reciprocity as a federally required rule).

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

82. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).

83. RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 5, sec481 cmt. a; RESTATEMENT OF CONFLICTS, supra note 7, sec98 cmt. f; see also Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185 (1912) (holding that no reviewable federal question was presented by a state court's failure to accord conclusive effect to a foreign country judgment); Willis L. M. Reese, The Status in This Country of Judgments Rendered Abroad, 50 COLUM. L. REV. 783, 787 nn.21 & 25 (1950) (citing various stale court cases that have held that the measure of respect that is owing to judgments of foreign nations is solely an issue of state law); Freer, supra note 75, at 1090. For a detailed discussion of the alternatives available for changing the current U.S. law on recognition and enforcement of foreign country money-judgments, see generally Ronald A. Brand, Enforcement of Foreign Money-Judgments in the United States: In Search of Uniformity and International Acceptance, 67 NOTRE DAME L. REV. 253 (1991) (comparing the Uniform Foreign Money-Judgments Recognition Act with approaches based on treaties, federal statutes, federal common law, and federal procedural rules). For the treaty alternative see supra note 76.

84. See infra notes 177-205.

85. RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 5, sec481 cmt. e; see also Reese, supra note 83, at 783-85.

86. RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 5, sec481 cmt. e

7. See Homburger, supra note 5, at 378; Yntema, supra note 41, at 1136.

88. Phillips v. Lyons, 1 Tex. 392 (1846). This case was brought before the State of Texas was annexed by the United States and therefore during the time when Texas was still an independent republic. Accordingly, the court viewed the Louisiana judgment at issue as a foreign country judgment. See R. Doak Bishop, Obtaining Recognition and Enforcement Of Foreign-Country Judgments In Texas, 45 TEX. BARJ. 287, 288 (1982); infra text accompanying note 91.

89. Phillips, 1 Tex. at 396.

90. Id. at 396-97.

91. Wellborn v. Carr, 1 Tex 463 (1846). As was the case in Phillips, the Alabama judgment was considered a foreign country judgment since Texas had not yet been annexed by the United States. See Bishop, supra note 88, at 288. 92. Phillips, 1 Tex. at 288.

93. Wellborn, 1 Tex. at 468-69.

94. Id. at 469 (citing JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS 494 95 (8th ed. 1883)).

95. Wellborn, 1 Tex. at 466 (citing STORY, supra note 94, at 494-95). See generally Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839). The Earle opinion contained what is considered to be the first pronouncement of the comity doctrine by the U.S. Supreme Court. The Court's opinion characterized comity as "a part of the voluntary law of nations" and posited that there would be numerous instances "in which, by the general practice of civilized countries, the laws of the one, will, by the comity of nations, be recognised and executed in another " Id. at 589.

96. Hilton v. Guyot, 159 U.S. 113 (1895).

97. Id. at 202-03.

98. Courtland H. Peterson, Res Judicata and Foreign Country Judgments, 24 OHIO ST. L.J. 291, 293 (1963); see Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971) (stating that comity "is not a rule of law, but one of practice, convenience, and expediency"), cert. denied, 405 U.S. 1017 (1972).

A broader definition of the term might be "expediency" while a narrower one might be "reciprocity." Elliott E. Cheatham, American Theories of Conflict of Laws: Their Role and Utility, 58 HARV. L. REV. 961, 373-74 (1945). See generally Herbert Barry, Comity, 12 VA. L. REV. 353 (1926); R. Doak Bishop & Susan Burnette, United States Practice Concerning the Recognition of Foreign Judgments, 16 INT'L LAW. 425, 426 (1982) (collecting various definitions of the term "comity"); Hessel E. Yntema, The Comity Doctrine, 65 MICH. L. REV. 9 (1966) (surveying the history of the doctrine); Note. 9 HARV. L. REV. 430 (1896) (commenting on the Hilton case).

99. Hilton, 159 U.S. at 210.

100. LEFLAR ET AL., supra note 32, at 250.

101. See Beverly M. Carl, Recognition of Texas Judgments in Courts of Foreign Nations--and Vice Versa, 13 Hous. L. REV. 680, 685 (1976).

102. Arthur Lenhoff, Reciprocity: The Legal Aspect of a Perennial Idea, 49 Nw. U. L. REV. 752, 764 (1955) (stating that by a court's insisting on reciprocity "a national judgment is confused with a judgment for a national").

103. See Carl, supra note 101, at 684-85; Hilarion Arnaldo Martinez Llanes, Note, Foreign Nation Judgments: Recognition and Enforcement of Foreign Judgments in Florida and the Status of Florida Judgments Abroad, 31 U. FLA. L. REV. 588, 628 (1979). Foreign countries may simply refuse to enforce judgments rendered in the United States. See Ernest G. Lorenzen, The Enforcement of American Judgments Abroad, 29 YALE L.J. 188, 205 (1919). Foreign countries may, on the other hand, insist on reciprocity, but this can lead to a circulus intricabilis, especially if there is an irrebuttable presumption against the equivalence of the U.S. suit-on-a-judgment mechanism, or if there is a rebuttable presumption against U.S. reciprocity in the absence of U.S. statute or precedent. See Lorenzen, supra, at 206 (illustrating the circulus inextricabilis); ENFORCING FOREIGN JUDGMENTS IN THE UNITED STATES AND UNITED STATES JUDGMENTS ABROAD 25 (Ronald A. Brand ed., A.B.A. Sec. Int'l L. & Prac. 1992) hereinafter ENFORCING FOREIGN JUDGMENTS! (stating "there is no easy exit from this analytical circle."); RUDOLF B. SCHLESINGER ET AL., COMPARATIVE LAW 292-93 & n.14 (5th ed. 1988) (noting that courts in civil law jurisdictions have inferred absence of reciprocity in the absence of specific statutory provisions); H.C. Gutteridge, Reciprocity in Regard to Foreign Judgments, 13 BRIT. Y.B. INT'L L. 49, 53 (1932) (discussing the procedure used in civil law countries, known as exequatur, to determine wh

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