Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

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4. Results: Answers
Enforcement of Foreign Judgments
Recognition and enforcement process
Is recognition of a foreign judgment a separate process from enforcement and does it have separate legal effects?
United States

Answer ... Yes. A plaintiff seeking to enforce a foreign judgment within the United States must first have the judgment recognised by a domestic court. Recognition of a foreign judgment means that “the forum court accepts the determination of legal rights and obligations made by the rendering court in the foreign country” (2005 Recognition Act § 4 cmt. 2; Midbrook Flowerbulbs Holland BV v Holland Am Bulb Farms, Inc, 874 F 3d 604, 613 and n 9 (9th Cir 2017) (see Servaas Incorporated v Republic of Iraq, 686 F Supp 2d 346 (SDNY 2010): “The question of whether the award would be enforced under New York law…and whether the judgment would be recognized…are entirely separate and distinct questions”).

Enforcement of a foreign judgment means “application of the legal procedures of the state to ensure that the judgment debtor obeys the foreign country judgment” (Millbrook Flowerbulbs, 874 F 3d at 613 n 9). A recognised judgment is generally enforceable in any US court under the Constitution’s full faith and credit clause (see Cal Civ Proc Code § 1719(a) and (b)). Once recognised, the judgment has res judicata effect (see Hurst v Socialist People’s Libyan Arab Jamahiriya, 474 F Supp 2d 19, 32–33 (DDC 2007): “Ordinarily, a federal court applies federal law on claim and issue preclusion in non-diversity cases”).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
What is the formal process for recognition and enforcement?
United States

Answer ... In most states, the judgment holder must bring an action against the debtor in a US court, obtaining jurisdiction over the debtor and/or the debtor’s property. The judgment holder may bring a plenary action or raise the matter as a counterclaim, cross-claim or affirmative defence in a pending proceeding (eg, see Tex Code Prac & Rem Ann § 36A.006: recognition can be sought as an original matter by filing an action seeking recognition, or may be raised in a pending action by counterclaim, cross-claim or affirmative defence).

Very often, the foreign judgment is recognised and enforced by filing a motion for summary judgment, without the need to first file a complaint. Under this procedure, the foreign judgment holder need only present evidence that:

  • a final foreign judgment has been issued (eg, by affidavit); and
  • the judgment was entered against the US defendant in a proceeding that meets the standards set out by the law of the state of the recognising court.

For more information about this answer please contact: Ana Reyes from Williams & Connolly
What documents are required in support of an application for recognition and enforcement?
United States

Answer ... In New York, the foreign judgment must be authenticated in accordance with an act of Congress or the statutes of New York and filed within 90 days of the date of authentication. When the holder of a foreign country judgment seeks summary relief under § 3213 of the Civil Practice Law and Rules, the holder must:

  • provide a certified copy of the actual judgment;
  • if the judgment is in a foreign language, provide a certified English translation of it;
  • unless obvious from the face of the judgment, submit the affidavit of an expert in the law of the jurisdiction that rendered the judgment establishing that the judgment is final, conclusive and enforceable in that jurisdiction;
  • if the expert’s affidavit is in a foreign language, provide a certified English translation of it; and
  • if the expert cites a particular foreign law authority, provide the court with copies of those authorities and translated copies (see Sea Trade Mar Corp v Coutsodontis, 978 NYS 2d 115, 117–18 (App Div 2013); John R Higgitt, Supplementary Practice Commentaries, CPLR § 3213, at 713–19 (Supp 2019)).

In addition, the judgment creditor must file a second affidavit:

  • stating the names and last known addresses of the judgment debtors;
  • confirming that the judgment was not obtained by default or confession of judgment; and
  • confirming that the judgment has not been stayed in whole or in part (see CPLR § 5403).

Other states have similar requirements (eg, see Fla Stat Ann § 55.604).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
What fees are payable for recognition and enforcement?
United States

Answer ... In many state courts, fees must be paid when filing an authenticated copy of the foreign country judgment or award with the court. If the creditor files an original proceeding, filing fees for new petitions or complaints are generally required. In Florida, for example, there are:

  • filing fees based on the size of the judgment;
  • recording fees based on the number of pages in each document; and
  • miscellaneous fees such as postage (eg, see Fla Stat Ann § 55.503 (requiring payment of filing fee)).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
Is the applicant required to provide security for costs?
United States

Answer ... Security for costs can be required when the court stays the domestic proceeding while an appeal is taken in the foreign court. Under § 5404(b) of the Civil Practice Law and Rules (CPLR), for instance, 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”.

Enforcing a judgment may require a bond. In New York, pursuant to CPLR § 6212(b), the plaintiff must post a bond as fixed by the court, so that “the plaintiff shall pay to the defendant all costs and damages, including reasonable attorney’s fees, which may be sustained by reason of the attachment if the defendant recovers judgment or if it is finally decided that the plaintiff was not entitled to an attachment of the defendant’s property”.

For more information about this answer please contact: Ana Reyes from Williams & Connolly
How long does it usually take to obtain a declaration of enforceability?
United States

Answer ... Each state has its own statutes and rules that establish the conditions under which a judgment can be recognised and enforced. Additionally, courts have discretion to grant additional time to allow the parties to conduct discovery or schedule adversarial hearings. In some cases, a trial may be necessary. Therefore, the time to obtain a declaration of enforceability will vary with the nature of the proceedings and the complexity of the case. Actions brought under a summary procedure in lieu of complaint are intended to be expeditious: there are no pleadings and no discovery. However, the summary action must concern an instrument for the payment of money.

For more information about this answer please contact: Ana Reyes from Williams & Connolly
Can the applicant seek injunctive relief while the process is ongoing?
United States

Answer ... If the judgment debtor has assets in the state where the court sits, the commencement of an action may enable the creditor to secure provisional remedies, including temporary injunctive relief and a pre-judgment attachment or garnishment order (eg, see CPLR § 6201(5)). Under CPLR § 6213, the attachment can be made before service occurs in a New York action, so long as service follows within a specified period of time. However, “[a]ttachment is a drastic remedy, and ‘CPLR 6201 is strictly construed in favor of those against whom it may be employed’” (Northeast United Corp v Lewis, 137 AD 3d 1387, 1388 (3d Dept 2016) (citation omitted)).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
Enforcement of Foreign Judgments