American courts are frequently asked by litigants to render decisions concerning the adequacy and integrity of other countries’ judicial systems. These questions come up as a rule in one of two situations: first, when a party who has obtained a money judgment in his favor from a foreign court seeks to have that judgment recognized and enforced in a U.S. court (usually because the judgment debtor’s assets are located in the United States); second, and more common, when a defendant seeks a dismissal of a newly filed action on forum non conveniens grounds, arguing that another—foreign—court is a more appropriate venue. In both of these situations, courts are required—often reluctantly—to wade into the precarious waters of passing judgment on another country’s judiciary.
Recognition of Judgments
Recognition of foreign court money judgments is governed by state law. The law of each state provides several grounds on which its courts, as well as federal courts sitting in diversity, can refuse to recognize a foreign judgment. Some of these grounds are mandatory; others are discretionary. Among the mandatory grounds for non-recognition is if the “judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” (See e.g., CPLR 5304 [a][1]). That is, the question is whether the judicial system of the foreign state en gross suffers from a systemic failure either (a) to provide impartial tribunals, or (b) to provide procedures compatible with due process.
