New article on the US Reception of Private International Law Conventions
Posted on February 10, 2011
HT to Conflict of Laws.net for a link to a new paper by Hannah L. Buxbaum on the reception of private international law conventions, including the Hague Service, Evidence, and Apostille Conventions and the New York Convention, in the United States. The paper is available on SSRN.
The paper focuses on the ways in which the US implements these conventions in domestic law. As Buxbaum points out, the conventions are self-executing—or were thought to be self-executing before the Supreme Court’s decision in Medellín, though Buxbaum opines that Medellín should not affect this understanding. However, the US has typically enacted legislation in one form or another to provide for uniformity in their application.
Sometimes this is done via amendments to the Federal Rules of Civil Procedure (e.g., FRCP 44(a)(2), which provides for the admissibility in evidence of documents authenticated by apostille, or FRCP 4(f)(1), which provides for service of process via the Service Convention). Buxbaum points out the potential difficulty in implementing conventions via the Rules Enabling Act, since the judiciary has no role in treaty-making and since, under the Act, once a rule takes effect it supersedes any law to the contrary and “could potentially trump a pre-existing treaty obligation.”
Sometimes conventions are implemented in domestic law by statute (e.g., Chapter 2 of the FAA, which implements the New York Convention). Federal legislation, of course, provides the most uniform implementation of a treaty (more uniform than federal judicial rulemaking, since the conventions are frequently applied in the state courts), but Buxbaum notes that because of the Erie doctrine and the system of federalism in the US, much private international law has been made at the state level. For example, the judgments of foreign courts are typically enforced under the Uniform Foreign Country Money Judgments Recognition Act or a predecessor statute, as we discussed here a few days ago. On the other hand, the Hague Convention on Choice of Courts Agreement is not yet in effect, though the US has signed it. Perhaps if and when it is ratified, the federal government will act to implement it. But on yet another hand, because the Choice of Courts Convention is limited in scope to enforcement of judgments in civil or commercial matters where the parties had made a choice of court agreement, any implementing federal legislation or rules would either leave room for state law to apply to enforcement of judgments not within the scope of the Convention or else be broader than required to implement the Convention.
I think Buxbaum does go astray on one minor point, when she writes that the FAA “applies only to proceedings in federal court.” I think that under Southland Corp. v. Keating, the FAA preempts state law in the state courts to the extent inconsistent with the FAA. Just by way of a recent example, in Lloyds’ Underwriters v. Netterstrom, 17 So.3d 732 (Fla. Dist. Ct. App. 2009), a wrongful death suit where the defendant impleaded its insurer for indemnification under an insurance policy that contained an agreement to arbitrate, and where the New York Convention applied, the court held that a state law barring arbitration of the dispute was preempted by the FAA.
But with this caveat, the article is a clear and welcome outline of the US approach to reception of private international law conventions.