Tinkering with Private International Law as a Response to Alleged Human Rights Violations

Ronald A. Brand is Professor of Law at the University of Pittsburgh Law School.

Professors Christopher A. Whytock and Cassandra Burke Robertson, have provided a solid discussion of the doctrines of forum non conveniens and the recognition of foreign judgments in their Columbia Law Review article. I have commented on that article in the Columbia Law Review Sidebar. Ted Folkman has now allowed us to continue this discussion in Letters Blogatory, and I welcome that opportunity.

Whytock and Robertson suggest a sort of harmonization of the doctrine of forum non conveniens and the law on recognition of judgments by raising the standard defendants must meet to obtain a forum non conveniens dismissal and then allowing a modified estoppel argument when any resulting foreign judgment is brought back to the United States for recognition and enforcement.

I have noted in the Columbia Law Review Sidebar that the Whytock and Robertson analysis is, I believe, oversimplified. Though they engage in rigorous consideration of the two stages of private international law in the United States, there are weaknesses to their proposal.

A first weakness comes from the proposal’s inconsistency with internal reality as recognized by both the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute. In 2005, each of these institutions adopted a new text for dealing with foreign judgment recognition. NCCUSL adopted the Uniform Foreign-Country Money Judgments Recognition Act (Recognition Act) and the ALI adopted the Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute (ALI Statute). In each case, scholars, judges, and practitioners realized the need to extend the bases for denial of recognition of a foreign judgment from the former test of impartiality on a systemic basis by adding individual case-focused due process analysis as a basis for non-recognition. In the Recognition Act, Article 7 now includes the following grounds for non-recognition:

(7) the foreign-country judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the foreign-country judgment; or

(8) the specific proceeding in the foreign court leading to the foreign-country judgment was not compatible with the requirements of due process of law.

In the ALI Statute, section 5(a) requires non-recognition not only when the national judicial system from which the judgment arises fails to provide “impartial tribunals or procedures compatible with fundamental principles of fairness,” § 5(a)(i), but also when “the judgment was rendered in circumstances that raise substantial and justifiable doubt about the integrity of the rendering court with respect to the judgment in question.” § 5(a)(ii). Thus, while NCCUSL and the ALI disagree rather dramatically on the source of the rules for recognition of foreign judgments (state or federal law), they are consistent on adding a case-by-case analysis of the fairness of the proceedings in the foreign court. This is a rather substantial development in U.S. judgments recognition law, and runs counter to the Whytock and Robertson proposal. I tend to find the NCCUSL/ALI approach more appropriate on this issue.

I see a further weakness in the failure of the proposal to properly consider its context in rules of private international law outside the United States. At base, questions of forum non conveniens and foreign judgments recognition raise issues of parallel litigation. The discretionary approach of the common law forum non conveniens doctrine differs substantially from the strict lis alibi pendens approach of the civil law. While the forum non conveniens doctrine is subject to abuse, so is the lis pendens doctrine. The race to the court house created by awarding the first court seised with jurisdictional priority has defects quite obvious to any American lawyer. Nonetheless, it is the simple, predictable, and efficient rule of civil law sources such as Article 27 of the European Union’s Brussels I Regulation. If Whytock and Robertson are seeking simplicity and predictability, the lis pendens path would be both more efficient and more consistent with our global trading partners than a modified forum non conveniens/recognition of judgments proposal. Like the Whytock and Robertson proposal, however, it would come with its own defects that I have discussed elsewhere. (Ronald A. Brand, Balancing Sovereignty and Party Autonomy in Private International Law: Regression at the European Court of Justice, in Universalism, Tradition and the Individual, Liber amicorum dedicated to Professor Petar Šarčivič 35 (Johan Erauw, Vesna Tomljenovic, and Paul Volken, eds., 2006). The elevation of a first-to-file rule over the equitable principles that underly the doctrine of forum non conveniens have proved hard to swallow for the United Kingdom, and would be troublesome to most U.S. practitioners as well. Nonetheless, it would provide a simple, and rational, “fix” for any perceived imbalance between forum non conveniens and judgments recognition.

There is another way at looking at the forum non conveniens/judgments recognition paring. In cases like the Lago Agrio litigation, commentators have focused on what they perceive to be the problems of those doctrines. But one must ask if these doctrines are the real problem. The bottom line is that if we ask rational questions, we may be led to a very different focus resulting from a different definition of the problem. I suggest the following questions (that reflect my comments above), followed by my answers to each of them:

  • Should a U.S. defendant in a U.S. court that moves for dismissal based on the doctrine of forum non conveniens expect that a judgment from the resulting action filed in the more convenient forum can and should be brought back to the United States for recognition and enforcement? Yes
  • Should that defendant be entitled to due process and fair treatment in the foreign court? Yes
  • If the foreign proceedings do not satisfy U.S. standards of due process, should the defendant (now the judgment debtor) be able to challenge the resulting judgment in a U.S. court by claiming fundamental procedural unfairness? Yes
  • Will the closing of the circle in a case that begins with forum non conveniens dismissal in a U.S. court and then moves to a request for recognition and enforcement of the subsequent foreign judgment in the same action challenge U.S. and foreign legal systems by absorbing much more time and resources than would be ideal? Yes
  • Are equitable common law doctrines such as forum non conveniens, based primarily on efficiency? No

The question is how to combine and balance jurisprudential considerations of equity and efficiency, while providing what we can consider to be justice in most cases in the final result. This leads to a further set of questions and answers:

  • Has the existing system of transnational litigation reached the goal of efficient and equitable results in providing redress for serious violations of the rights of certain groups of people? No
  • Is it appropriate to liberalize existing requirements for the recognition and enforcement of a foreign judgment to make it easier to recognize and enforce a foreign judgment because that judgment resulted from foreign litigation originally dismissed in the United States on the basis of forum non conveniens? No
  • Is it appropriate to consider how the transnational judicial framework might better offer results that hold developed countries responsible for harm caused in the name of profit in developing countries? Yes

The problem may well be a more fundamental one than can be described by mere tinkering with rules of private international law. Perhaps we should first clearly define the problem and then ask whether rules of private international law are the source of the problem or simply a resulting focus for disagreement in litigation process. I would suggest that, in the Lago Agrio case, the real problem is something much different, and perhaps more fundamental, than an imbalance in rules of private international law.

9 responses to “Tinkering with Private International Law as a Response to Alleged Human Rights Violations”

  1. Ron, do you know whether either the NCCUSL or the ALI explicitly considered so-called boomerang litigations when drafting their model statutes? To the extent the intent of the model statutes matters, it seems to me significant to ask whether the drafters had two-stage proceedings (FNC dismissal followed by action for recognition and enforcement) in mind, or whether, on the contrary, they had in mind only one-stage proceedings (action for recognition and enforcement but not following FNC dismissal).

    1. Ron Brand

      Ted, the discussion was considered to be comprehensive, but I’m not sure if judgments following FNC dismissals were specifically addressed. My own position on that is that it doesn’t matter. The rules for non-recognition should apply no matter what happened before jurisdiction was lodged in the foreign court. If all we are considering is systemic due process, then the analysis may be quite similar to that applied at the FNC stage. But the rationale behind both the NCCUSL and ALI new provisions is that a defendant has a right to go beyond systemic due process and challenge specific due process issues in the particular proceeding. That analysis should be possible regardless of the history of litigation prior to filing in the foreign court.

      1. Thanks, Ron, for the clarification.

        The model statutes say what they say, but I want to push a little on the rationale of the statutes in the FNC context. I would suggest categorizing the different kinds of due process challenges as follows: (1) a party in the foreign case commits a fraud on the court or otherwise does something that has the effect of depriving the adverse party of due process; (2a) the judge in the foreign proceeding is himself corrupt or does something that deprives a party of due process, but the foreign judiciary itself is otherwise adequate; and (2b) the foreign judiciary itself is systematically inadequate. What’s the real distinction between (2a) and (2b)? Suppose the trial judge in a foreign country is corrupt. If the foreign judiciary itself is systematically adequate, why shouldn’t we count on its procedures (the local equivalents of appeals, motions to set aside a judgment, etc.) to deal with the problem, particularly where the complaining party sought to have the case heard there in the first place? If we can’t count on the foreign judiciary’s procedures to correct specific instances of fraud, then haven’t we in effect agreed that the foreign judiciary is systematically inadequate?

        1. Ron Brand

          Ted, I think if there is case-specific due process inadequacy, then the question of systemic inadequacy need not be addressed. The approach taken in 2005 by NCCUSL and the ALI assumes that inadequacy on either level may be sufficient to deny recognition and enforcement of the resulting judgment. Your analysis addresses the rationale for allowing challenge on the basis of intrinsic, but not extrinsic, fraud. If there was an opportunity in the foreign system to deal with the issue, but the party defaulted on that opportunity, then the party should generally be held to the result. The problem is that there may be good reason for that default — empirical proof that any effort to assert the matter would have been unsuccessful, or even counter-productive. As I see it, this is the problem with application of estoppel principles to boomerang litigation. A party should only be estopped from asserting something that was reasonably possible of being asserted in the foreign court. Limitations on that possibility may be either systemic or case-specific, and both should be acknowledged.

          1. Ron, I agree with you that a case of extrinsic fraud that the foreign court could not address (e.g., a false return of service leading to a default judgment) is a stronger case for allowing a US defense to recognition and enforcement than a case of intrinsic fraud. But it’s difficult (for me, at least) to think of a truly non-systematic extrinsic fraud. Take the false return of service, for example. I presume that foreign judicial systems will have mechanisms for setting aside judgments in such cases. Still, it seems to be in the interests of both fairness and economy to allow a US defendant to oppose recognition and enforcement on fraud grounds in such cases, rather than requiring her to go abroad to seek to set aside the judgment.

            Such rare cases aside, I am not sure I see the force of your point about good reasons for defaulting on an opportunity to challenge a fraud in the foreign court. Unless there is a systematic problem with the foreign judiciary (and for purposes of this discussion I think we are hypothesizing that there is not), why would a poor likelihood of success be a sufficient reason for not making the challenge?

  2. […] Brand notes that in evaluating the transnational litigation doctrines, “one must ask if these doctrines are […]

  3. […] these case-specific exceptions—not only in the post-FNC dismissal context, but in general. Professor Brand’s response to Ted Folkman’s comments touch on some of the possibilities, as do the drafters’ […]

  4. […] Brand notes that in evaluating the transnational litigation doctrines, “one must ask if these doctrines are […]

  5. […] these case-specific exceptions—not only in the post-FNC dismissal context, but in general. Professor Brand’s response to Ted Folkman’s comments touch on some of the possibilities, as do the drafters’ […]

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