Successful litigation turns not just on winning a judgment, but also on enforcing it. This often requires assistance from a court, and sometimes law enforcement within the court’s jurisdiction, to ensure compliance with the court’s decision. Before a US court will enforce a judgment issued by a foreign court, the US court must first recognize the judgment. To “recognize” a foreign judgment means to make it equal to any other judgment issued by a US court. A foreign judgment recognized by a US court—a domesticated judgment—has the same authority as a judgment first issued in the United States. Foreign judgments cannot be enforced in the US before they are recognized.
Although the process can be complicated, it is almost always faster and cheaper to domesticate a foreign judgment than it is to obtain a new US judgment by filing a complaint and litigating the merits de novo in a US court.
Which laws apply to recognition of foreign judgments?
Many people are surprised to hear that there are no international treaties governing U.S. court recognition and enforcement of non-US court judgments. The US is a party to multilateral conventions that apply to enforcement of foreign arbitration awards, but not foreign court judgments. Rather, recognition and enforcement is governed by individual state laws. Even if a case is brought in federal court, that court will apply relevant state law in reaching its decision.
Which judgments will be recognized?
Although the law varies state-by-state, there are major similarities among states. Most states have adopted the Uniform Foreign Money Judgments Recognition Act (UFMJRA), drafted by the National Conference on Uniform State Laws. The UFMJRA provides a standard framework for courts to recognize and enforce non-US money judgments. States that have not adopted the UFMJRA (either in its original or amended form), generally recognize foreign judgments under common law and principles of comity. Likewise, non-money judgments ordering or prohibiting a specific act may also be recognized under state laws, with similar results.
In states that have adopted the UFMJRA, a foreign judgment granting or denying recovery of money will be recognized only if the judgment is (1) final; (2) conclusive; and (3) enforceable where rendered. If these criteria are missing, the US court will not recognize the judgment. Pending appeal proceedings do not necessarily mean that a judgment is unenforceable where rendered. A US court may, however, stay the US enforcement proceeding pending the appeal.
In addition, under the UFMJRA, the court cannot recognize the foreign judgment if the foreign court (1) was not impartial; (2) did not offer due process of law; or (3) did not have personal jurisdiction over the defendant. The judgment holder must prove that each of these requirements are met.
In addition to these mandatory requirements, courts in most states have discretion to deny recognition for many other reasons. For example, the law in most states gives courts discretion to deny recognition of a foreign judgment if the judgment was obtained by fraud; if there was insufficient notice of the foreign proceedings; if the judgment goes against the state’s public policy; or if the foreign judgment runs contrary to US constitutional principles.
A few US states have also adopted a reciprocity requirement. This means that if the foreign jurisdiction that first issued the judgment would not recognize a judgment from the US state, then that US state will also not recognize a judgment from the foreign jurisdiction. Accordingly, attorneys must consult individual states’ laws as well as the laws of the foreign court that issued the judgment.
Which procedures must be followed?
Each state has its own procedural rules for enforcing a judgment. In most states, the procedure for recognizing a non-US judgment requires starting a new action in a US court to obtain jurisdiction over the US defendant or his property. Often, a summary proceeding—such as a motion for summary judgment—may commence the action, rather than a complaint.
To support the claim, the non-US judgment holder must prove that the foreign judgment is valid and authentic. To make that determination, the US court will likely require a certified copy of the judgment by the court that issued it, along with an English translation. The translation must be certified by an approved translator or consular agent.
Notice of the recognition and enforcement proceeding must be properly served on the adverse party, and the adverse party must be given an opportunity to be heard. The adverse party may contest the proceeding and generally has a set time—such as 30 days—to do so.
Once the procedural rules for starting the action are satisfied, the foreign judgment holder must prove that the final judgment rendered against the US defendant meets the state standards for recognition, as set forth above. If the foreign judgment meets the requirements to be recognized in a US court, a US court will convert the foreign judgment into a US judgment. The domesticated judgment may then be enforced in the United States.