Enforcement of Judgments

DISCLAIMER: THE INFORMATION IN THIS CIRCULAR IS PROVIDED FOR GENERAL INFORMATION ONLY. THE DEPARTMENT OF STATE MAKES NO WARRANTY REGARDING THE ACCURACY OF THIS INFORMATION. WHILE SOME OF THE INFORMATION IS ABOUT LEGAL ISSUES, IT IS NOT LEGAL ADVICE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN ATTORNEYS.

GENERAL

There is no bilateral treaty or multilateral international convention in force between the United States and any other country on reciprocal recognition and enforcement of judgments. Although there are many reasons for the absence of such agreements, a principal stumbling block appears to be the perception of many foreign states that U.S. money judgments are excessive according to their notions of liability. Moreover, foreign countries have objected to the extraterritorial jurisdiction asserted by courts in the United States. In consequence, absent a treaty, whether the courts of a foreign country would enforce a judgment issued by a court in the United States depends upon the internal laws of the foreign country and international comity. In many foreign countries, as in most jurisdictions in the United States, the recognition and enforcement of foreign judgments is governed by local domestic law and the principles of comity, reciprocity and res judicata (that is, that the issues in question have been decided already.)i

The general principle of international law applicable in such cases is that a foreign state claims and exercises the right to examine judgments for four causes: (1) to determine if the court had jurisdiction; (2) to determine whether the defendant was properly served; (3) to determine if the proceedings were vitiated by fraud; and (4) to establish that the judgment is not contrary to the public policy of the foreign country. While procedures and documentary requirements vary widely from country to country, judgments which do not involve multiple damages or punitive damages generally may be enforced, in whole or in part, upon recognition as authoritative and final, subject to the particulars cited above, unless internal law mandates a treaty obligation.ii iii iv

If eventual enforcement of a United States judgment abroad is envisioned, you may wish to consult foreign legal counsel before you begin filing the complaint, serving process, discovery, trial, etc.v This may help ensure that the foreign requirements for enforcement are not inadvertently violated in the U.S. action. In certain foreign legal systems, a foreign judgment will not be enforced unless it satisfies not only international standards as to jurisdiction, but also internal requirements as to notice, and other requirements.vi Once a judgment has been issued by a court in the United States, formal legal proceedings usually must be initiated in the foreign country by your foreign legal counsel or American counsel licensed to practice in the foreign country.vii viii ix

PERSONAL JURISDICTION: It is fundamental that a court must have personal jurisdiction over a defendant before it can enter a valid judgment imposing a personal obligation on the defendant. Kulko v. Superior Court, 436 U.S. 84 (1978). In Pennoyer v. Neff, 95 U.S. 714 (1878) the Supreme Court set down the basic rule that a personal judgment against a nonresident defendant who was not served within the state, and who did not appear or otherwise assent to the jurisdiction of the court, is invalid. Over the years, however, the Supreme Court has substantially qualified Pennoyer to the extent that, under certain circumstances, a state court may properly acquire personal jurisdiction over a nonresident even though the defendant is not personally served within the forum state, provided the defendant has certain "minimum contacts" with the forum state "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310 (1945). See also, e.g., Hanson v. Denckla, 357 U.S. 235 (1958); Shaffer v. Heitner, 433 U.S. 186 (1977); and World-Wide Volks-Wagen Corp. v. Woodson, 444 U.S. 286 (1980). As noted above, foreign countries may find that the U.S. interpretation of this issue differs from local foreign law, rendering the U.S. judgment unenforceable abroad. For this reason, you may wish to consult local counsel in the foreign country very early in the U.S. proceeding, long before any judgment is rendered.

RETAINING A FOREIGN ATTORNEY: You may wish to consult your local counsel before proceeding with the expensive task of translating and authenticating documents for a foreign enforcement proceeding. The Department of State, Office of American Citizens Services can provide lists of attorneys in foreign countries who have expressed a willingness to represent U.S. citizens. See also our flyer "Retaining a Foreign Attorney" available on our home page on the Internet or via our automated fax service (AUTOFAX # 1027). See "Additional Information" below.

See also: Digest of U.S. Practice in International Law, Office of the Legal Adviser, Department of State, 1977, 993-994; Digest of U.S. Practice in International Law, Office of the Legal Adviser, Department of State, 1976 , 316-318; Digest of U.S. Practice in International Law, Office of the Legal Adviser, Department of State, 1975, 340-342; Whiteman, Digest of International Law, Department of State, Office of the Legal Adviser, Chapter XIV, Section 14 Volume 6, pages 225-253 (1968).

SERVICE OF PROCESS: For information about service of process abroad, obtain a copy of our flyers "Hague Service Convention" (AUTOFAX # 1051), "Inter-American Letters Rogatory Convention (Service)" (AUTOFAX # 1208), "Service of Process Abroad"(AUTOFAX # 1049), and country-specific flyers through our home page on the Internet or via our automated fax service. See "Additional Information" below.

ENFORCEMENT OF A FOREIGN JUDGMENT IN THE U.S.: Enforcement of judgments issued by foreign courts in the United States is governed by the laws of the states. Enforcement cannot be accomplished by means of a letter rogatory in the U.S. under 28 U.S.C. Sec. 1782. See the Secretary of State's circular diplomatic note of 2/3/76 to the Chiefs of Mission in Washington, D.C., Digest of United States Practice in International Law, 1976, U.S. Department of State, Office of the Legal Adviser, 306, 311 at 309 (1977). Under U.S. law, an individual seeking to enforce a foreign judgment, decree or order in this country must file suit before a competent court. The court will determine whether to give effect to the foreign judgment. As with most legal proceedings, it is necessary to retain legal counsel to conduct the suit.x xi xii xiii See also the Uniform Enforcement of Foreign Judgments Act (13 U.L.A. 261 (1986) and the Uniform Foreign Money-Judgments Recognition Act, 13 U.L.A. 149 (1986). But see, Ackermann v. Levine, 788 F. 2d 830 (2d Cir. 1986); Matter of Colorado Corp., 531 F. 2d 463 (1976); Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624 (1976).

ARBITRATION: There are a number of international agreements in force to which the U.S. is a party on the subject of enforcement of arbitral awards. Inquirers may also wish to consult one of the many treatices on the subject or contact the American Arbitration Association, 140 West 51st St., New York, N.Y. 10020-1203; 212-484-4000, 212-484-4110; fax: 212-765-4874 regarding the operation of these agreements and other issues pertaining to arbitration.xiv xv xvi xvii See, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 UST 2517; TIAS 6997; 330 UNTS 3; Inter-American Convention on International Commercial Arbitration, 14 I.L.M. 336 (1975). See also, 9 U.S.C. 201-208 (Federal Arbitration Act); Digest of United States Practice in International Law, U.S. Department of State, Office of the Legal Adviser, 1974, 761-763; Digest of United States Practice in International Law, U.S. Department of State, Office of the Legal Adviser, 1975, 895-897; Digest of United States Practice in International Law, U.S. Department of State, Office of the Legal Adviser, 1976, 791-792; Digest of United States Practice in International Law, U.S. Department of State, Office of the Legal Adviser, 1979, 1882-1885; Cumulative Digest of United States Practice in International Law, 1981-1988, Vol III, 3709-3718 (1995).

ADDITIONAL INFORMATION: Our office has available general flyers on international judicial assistance, many of which are available through our automated fax system or via our Internet Consular Affairs Home Page. These topics include country-specific information about service of process and obtaining evidence abroad.

Using the Autofax System:

* Dial (202) 647-3000 using the phone on your fax machine.

* Follow the prompt to obtain a printed index of judicial assistance topics. There are four indexes.

Travel Information - Index of Countries - Press 1
Passports and Visas - Index of Flyers - Press 2
Judicial Assistance - General and Country Specific - Press 3
Child Custody and Adoption - Index of Flyers - Press 4

* Enter the four digit code for the document desired as listed in the index.

* When the prompt identifies the document and asks if you want that document, enter Y (9) for yes or N (6) for no.

* If you want another document, enter the four digit code, using the same procedures noted in the previous step.

* When you finish selecting, press the # key on the phone keyboard and press the start button on your fax machine.

* After a brief delay of up to a minute, the documents will print automatically on your fax machine.

Using the Internet: Many of our judicial assistance flyers are also available on the Internet via the Department of State, Bureau of Consular Affairs Home Page at http://travel.state.gov/ under International Legal Assistance or through the main State Department Home Page at http://www.state.gov/ under Travel, Consular, or International Legal Assistance. See also, the Department of State, Office of the Legal Adviser for Private International Law (L/PIL) Home Page at http://his.com/~pildb/ for information regarding private international law unification. See also the Home Pages for many of our embassies which are linked to the Consular Affairs Home Page. But see, U.S. Department of Commerce, Office of Chief Counsel for International Commerce Home Page: http://www.tradecompass.com/library/legal/recog1.htm.

Treaty Databases on the Internet:

United States Department of State, Office of the Legal Adviser, Treaty Affairs, List of Treaties and Other International Agreements of the United States In Force: http://www.acda.gov/state/.

United Nations (UN): http://www.un.org/ under Databases/Treaties at http://www.un.org/Depts/Treaty/;

Council of Europe (COE): http://www.coe.fr:80/index.html under Texts/Treaties http://www.coe.fr.80/eng/legaltxt/treaties.htm;

Organization of American States (OAS): http://www.oas.org/ under Public Information/Documents/Treaties at gopher://oasunix1.oas.org:70/11/pub/english/treaties.

U.S. House of Representatives Internet Law Library Treaties and International Law: http://law.house.gov/89.htm.

SELECTED REFERENCES:

Lutz, Bibliography: Enforcement of Foreign Judgments, Part I: A Selected Bibliography of U.S. Enforcement of Judgments Rendered Abroad, 27 Int'l Law. 471, 494 (1993).

Lutz, Bibliography: Enforcement of Foreign Judgments, Part II: A Selected Bibliography of Enforcement of U.S. Judgments in Foreign Countries, 27 Int'l Law. 1029, 1060 (1993).

Questions: Additional questions may be addressed to the appropriate geographic division of the Office of American Citizens Services at 202-647-5225 or 202-647-5226..

CA/OCS/ACS 5/97

i Hilton v. Guyot, 159 U.S. 113 (1965); 47 Am Jur 2d, Judgments, Section 1214 et seq

ii Bungert, Enforcing Excessive and Punitive Damages Awards in Germany, 27 Int'l Law. 1075, 1090 (1993).

iii Nettesheim & Stahl, Recent Development, Bundesgerichtshof Rejects Enforcement of United States Punitive Damages Award, 28 Tex. Int'l L.J. 415 (1993)..

iv Waller, Under Seige: United States Judgments in Foreign Courts, 28 Tex. Int'l L.J. 427, 434 (1993).

v Waller, at 429.

vi Casad, Civil Judgment Recognition and the Integration of Multi-State Associations: A Comparative Study, 4 Hastings Int'l & Comp. L.R. 13, note 18 at 14 (1980).

vii Nanda & Pansius, Litigation of International Disputes in U.S. Courts, Sec. 12 (1992).

viii Weems, ed., Enforcement of Money Judgments Abroad, New York, Matthew Bender (1992).

ix Casad, Enforcement of Foreign Judgments, Kluwer Law Int'l (1995).

x Wright, Miller & Cooper, Federal Practice and Procedure, Sec. 4473 at 741 (1982), at 570 (1996 supp.).

xi Born & Westin, International Civil Litigation in United States Courts, 564-604 (1989).

xii Restatement (Third) Foreign Relations Law of the United States, St. Paul, Minnesota, American Law Institute, Sec. 481-486, 482(1)(b) (1987).

xiii Restatement (Second) of Conflict of Laws, St. Paul, Minnesota, American Law Institute, Sec. 98 and 104 (1971).

xiv Born, International Commercial Arbitration in the United States (1994).

xv Born & Westin, International Civil Litigation in United States Courts, 605, 646 (1989).

xvi Westin, Enforcing Foreign Commercial Judgments and Arbitral Awards in the United States, West Germany and England, 19 Law. & Pol'y Int'l Bus. 325, 338 (1987).

xvii McLaughlin & Genevro, Enforcement of Arbitral Awards Under the New York Convention -- Practice in U.S. Courts, 3 Int'l Tax & Bux. Law. 249 (1986).

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