Comparative Guides

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

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Enforcement of Foreign Judgments
5.
Court analysis and decision
5.1
Will the court review service of process in the initial proceedings?
United States

Answer ... The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention) is a multinational treaty providing specific procedures for service of process. When the foreign court sits in a nation that is a party to the convention, the US court will determine whether the foreign service of process complied with the convention’s terms (see Ackerman v Levine, 788 F 2d 830, 838 (2d Cir 1986): “As a ratified treaty, the [Hague] Convention is of course ‘the supreme law of the land’”). Service must also comply with the due process clause of the US Constitution (see Hilton v Guyot, 159 US 113, 202 (US 1895)). Where the foreign country is not a party to the Hague Convention, the US court will ask whether service complied with the foreign country’s laws and with US due process standards.

For more information about this answer please contact: Ana Reyes from Williams & Connolly
5.2
Will the court review the jurisdiction of the foreign court in the initial proceedings?
United States

Answer ... A foreign judgment is not entitled to recognition if the rendering court did not have jurisdiction under the laws of its own state (see Restatement (Third) of Foreign Relations Section 482, cmt (c)). Accordingly, factors favouring non-recognition include the following:

  • The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
  • The foreign court did not have personal jurisdiction over the defendant;
  • There was a lack of subject-matter jurisdiction; or
  • Notice of the proceedings was inadequate (see § 5304 of the Civil Practice Law and Rules (CPLR); Md Code Ann, Cts & Jud Proc § 10-704).

In determining whether there was personal jurisdiction over the defendant, some courts look to the law of the rendering court; some look to the law of the enforcing court; and some look to both the foreign jurisdiction and the United States (see Monks Own Ltd v Monastery of Christ in Desert, 168 P 3d 121 (NM 2007), examining the law of both jurisdictions. See generally, Tanya J Monestier, ‘Whose Law of Personal Jurisdiction? The Choice of Law Problem in the Recognition of Foreign Judgments’, 96 BU L Rev 1788 (2016)). In most states, the foreign judgment will not be refused recognition for lack of personal jurisdiction where, among other things:

  • the defendant was served personally in the foreign state;
  • the defendant voluntarily appeared in the proceedings; and
  • the defendant, prior to commencement of the proceedings, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved (Fla Stat Ann § 55.606).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
5.3
Will the court review the foreign judgment for compliance with applicable law and public policy?
United States

Answer ... US courts may decline to recognise a foreign judgment that is contrary to state or US public policy, which includes both substantive and procedural law (see In re Carmona, 580 BR at 712 – Mexican judgments repugnant to Texas public policy; Derr v Swarek, 766 F 3d 430, 437–38 (5th Cir 2014) – failure of German court to respect purchasers’ dismissal with prejudice of their breach of contract claims against seller violated Mississippi public policy). However, the public policy defence is narrowly construed; it “measures not simply whether the foreign judgment or cause of action is contrary to our public policy, but whether either is so offensive to our public policy as to be prejudicial to recognized standards of morality and to the general interests of the citizens” (Naoko Ohno v Yuko Yasuma, 723 F 3d 984, 1002 (9th Cir 2013) (emphasis and internal quotation marks omitted. See also SARL Louis Feraud Int’l v Viewfinder, 489 F 3d 474, 479–80 (2d Cir 2007): “The public policy inquiry rarely results in refusal to enforce a judgment unless it is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense”).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
5.4
Will the court review the merits of the foreign judgment?
United States

Answer ... Enforcement will not be denied merely because the foreign law on which the judgment or award is based differs from US law or is more favourable to judgment creditors than US law (eg, see Java Oil Ltd v Sullivan (2008) 168 Cal App 4th 1178, 1192 (Cal App 4th 2008): “The fact that a foreign judgment is based on laws different from, or in conflict with, California law is not a basis for refusing to enforce the foreign judgment”). That said, when the foreign court’s judgment conflicts with US law, a court may, in the proper circumstances, refuse to recognise the foreign judgment on public policy grounds. For example, in Telnikoff v Matusevitch, 702 A 2d 230 (Md 1997), the court refused to enforce an English libel judgment because English defamation law was “contrary… to the policy of freedom of the press underlying Maryland law” (id at 249).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
5.5
How will the court proceed if the foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties?
United States

Answer ... The Model Acts provide that “[a] foreign judgment need not be recognized if the judgment conflicts with another final and conclusive judgment” (see 1962 Model Act, § 4(b)(4); 2005 Model Act, § 4(c)(4)). Many state statutes incorporate this language (see CPLR § 5304(b); Byblos Bank Eur, SA v Sekerbank Turk Anonym Syrketi, 885 NE 2d 191 (NY 2008), affirming non-recognition of a Belgium judgment which conflicted with an earlier judgment of a Turkish court). There is no fixed rule, however, concerning which judgment gets recognised (see Restatement (Third) of Foreign Relations Law, § 482(2)(e) and cmt g (Am Law Inst 1987): “Courts are likely to recognize the later of two inconsistent foreign judgments, but under Subsection 2(e) the court may recognize the earlier judgment or neither of them”).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
5.6
Are there any other grounds on which the court may refuse to recognise and enforce the foreign judgment?
United States

Answer ... In Florida, Idaho, Maine, North Carolina, Ohio and Texas, lack of reciprocity is a discretionary ground for non-recognition (eg, see Banque Libanaise Pour Le Commerce v Khreich, 915 F 2d 1000, 1002–04 (5th Cir 1990), refusing to recognise an Abu Dhabi judgment because the Texas Recognition Act treats non-reciprocity as a discretionary ground for non-recognition; Fla Stat Ann § 55.605(2)(g)). In Georgia and Massachusetts, lack of reciprocity is a mandatory ground for non-recognition.

A court will also refuse to enforce a judgment where the parties had agreed to arbitrate, although the parties can waive such provisions (see Iraq Middle Market Development Foundation v Harmoosh, 848 F 3d 235 (4th Cir 2017)).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
5.7
Is partial recognition and enforcement possible?
United States

Answer ... Yes. As the Second Circuit observed in Ackermann v Levine, 788 F 2d 830 (2d Cir 1986), “courts are not limited to recognizing a judgment entirely or not at all. Where a foreign judgment contains discrete components, the enforcing court should [attempt] to discern the appropriate ‘extent of recognition’” (see De Fontbrune v Wofsy, No 5:13-cv-05957-EJD, 2019 WL 4345967 (ND Calf 12 September 2019) (granting partial summary judgment on some defences).

For more information about this answer please contact: Ana Reyes from Williams & Connolly
5.8
How will the court deal with cost issues (eg, interest, court costs, currency issues)?
United States

Answer ... Where damages are sustained in a foreign currency, the conversion depends on the rule used in the particular jurisdiction. Under the ‘breach-day rule’, the exchange rate is fixed on the day the foreign judgment was rendered. Under the ‘judgment-day rule’, the date of conversion is the day of the US judgment. New York appears to follow both rules, although in different situations. Under the common law, New York courts invoke the breach-day rule when damages sustained in a foreign currency are converted to US dollars. But under New York Judiciary Law § 27, the state invokes the judgment-day rule where the cause of action is based upon an obligation “denominated” in a currency other than that of the United States (see also Restatement (Third) Foreign Relations Law § 423 (1987): courts should award payment in the way that will best make the prevailing party whole).

Interest is also a matter of state law. For example, under California law, “a foreign-country money judgment entered in this state bears post-judgment interest at the California rate of 10% from the date of the judgment recognizing the foreign judgment” (Hyundai Sec, 232 Cal App 4th at 1392).

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