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?

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.

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?

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.