Archive | May, 2012

As a humble practicing lawyer in the company of some heavy hitters from the academy, I’ve really enjoyed reading and participating in this discussion! I want to offer some follow-up to the back-and-forth I had with Professor Brand yesterday. In his response to the Whytock/Robertson article, Professor Brand noted an inconsistency between the proposal, which would have the effect of limiting the right of US defendants to challenge foreign judgments on case-specific due process grounds, as distinguished from grounds of systematic due process problems with the foreign judiciary. I agreed with Professor Brand that the statutes do make these kinds of case-specific challenges available, but I wondered whether that was really sensible. My thought was this: if we assume that there are no systematic due process problems with the foreign judiciary, then presumably the foreign judiciary itself can catch any instances of fraud or corruption that are particular to the proceeding in question. Why should an American court step in? If, on the other hand, we are saying that the foreign judiciary is incapable of dealing with instances of fraud or corruption that are particular to the proceeding in question, then aren’t we really saying that there are systematic due process problems with the foreign judiciary? In other words, what is the rationale for including case-specific bases for opposing recognition and enforcement of foreign judgments?

Chris Whytock’s response addresses this point with characteristic sophistication, though without drawing a firm conclusion. I want to inject into the discussion a point that Chris touches on but does not strongly emphasize. Whatever the strength of the arguments for or against case-specific defenses to recognition and enforcement in general, it seems to me that they become much stronger in the FNC context, because the US defendant has, by seeking dismissal, already expressed its satisfaction with the foreign judiciary. ¹ So even if, as Chris suggests, some could argue that there is some room to argue that a foreign court, though adequate as a matter of due process, is not as good as a US court in ferreting out fraud and corruption in foreign proceedings, it’s difficult for me to see why that possibility should be a live one where the US defendant has already expressed a willingness to have the foreign courts decide its case. I am not sure we need to attach the name “estoppel”, with all its doctrinal baggage, to this point in order to make it persuasive. This is another way of trying to make the point I made yesterday about a new kind of estoppel intended to deal with the basically new problem of boomerang litigations.

I want to thank each of the participants in the symposium for excellent contributions. I’m grateful for their time and effort!

Chris does a good job of detailing the tension between the traditional approach of the Ashenden analysis and the new approach of the UFCMJRA, which I referenced in my post. In particular I think he correctly describes how the new case-specific UFCMJRA grounds essentially turn the enforcing court into an appellate court on due process and “integrity” issues, whereas under the traditional approach that level of review was seen as incorporated into the larger systemic adequacy analysis and left to the foreign court’s own internal review procedures.

Chris ends his post by pleading for more information on the thinking behind why we would want to make this shift. Professor Brand takes up the subject of case-specific exceptions, but doesn’t bite at the particular question: why exactly have we suddenly decided that relying on a foreign court’s review procedures, assuming they have been designated as adequate and compatible with due process, aren’t sufficient? Foreign judicial capacity, at least writ large, has only improved over the last half century, a period when we’ve managed to live without case-specific exceptions under the original Uniform Act. So why are we adopting them now? In response to what? The Act itself has three commentary paragraphs that explain the difference, but not the underlying rationale. I’m not the scholar in the room, but I trust that if Chris hasn’t been able to find a rationale, it must not be too readily available. Which is somewhat troubling.

Professor Brand does pick up on Chris’ comment that the case-specific exceptions ship has “set sail.” I’m not sure if I find this to be a very satisfactory answer standing on its own, nor necessarily true. Professor Brand cites the wording of the public policy exception in the Hague Choice of Courts Convention to mean that the ship has “not only set sail in the United States, but globally as well” and articulates a “global position.” But in seven years, the Hague text, even though it is extraordinarily narrow relative to all judgment recognition and enforcement, has generated significant controversy and only three signatories, so I am not sure it gets to stand as a “global position” just quite yet.

More importantly, the way it subsumes case-specific exceptions into the public policy clause is revealing. While the public policy exception in the U.S. has its own limitations similar to the extrinsic requirement for the fraud exception (in particular, the rule that it must be the cause of action that is repugnant to public policy, such as libel laws in violation of the First Amendment, not just the particular result), but it has also historically played a bit of the role of the “natural justice” or “rule of law” exceptions found in other states, i.e. as a backstop against truly ghastly decisions that we all agree shouldn’t be enforced. Again we can give Judge Cardozo credit for best articulating this standard: the judgment must “violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.” Loucks at 111; see also Intercontinental Hotels Corp. v. Golden, 15 N.Y.2d 9, 13 (1964) (to violate public policy exception a judgment must be “inherently vicious, wicked or immoral, and shocking to the prevailing moral sense”); Ackermann v. Levine, 788 F.2d 830, 841 (2d Cir. 1986) (“The standard is high, and infrequently met”).

This is a core part of the traditional approach, and perhaps its provides that safety release valve to allay the fear, found throughout these posts, that U.S. courts will be forced to enforce seriously unjust and/or abhorrent judgments. While I’m not sure such a fundamentally discretionary system and our actual experience quite justifies this level of concern, I am certainly a fan of extra due process protections and am happy to have the Cardozo standard as a backstop in any and all situations. I think the question is whether our the doctrine streamlines efficiency and reflects the fundamental perspective of deference and equality found in Posner and Cardozo, or whether we streamline a frustrated litigant’s ability to re-raise issues that were or could have been decided in a decidedly adequate foreign forum.