A Follow-Up To Professor Brand

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!

Notes:

  1. There will be cases where the US defendant will point to a radical and unforeseeable change in the foreign judiciary occurs between the time of the FNC dismissal and the foreign judgment. Doug Cassel focused on this point in his post yesterday. For reasons I gave yesterday, I think that his case is not persuasive with regard to the Chevron litigation in particular, but that’s not to say that in general, a truly unforeseeable change ought not to be taken into account.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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