First, getting back to the FNC context specifically: To what extent, if at all, is the U.S. bargaining position likely to be compromised if U.S. courts use their discretion to allow enforcement notwithstanding case-specific exceptions in the particular sort of post-FNC dismissal situations that Cassandra and I discuss? For a few reasons, I’m not sure our proposal would have this effect. The Hague Convention (like the UFCMJRA) itself makes these exceptions discretionary, so a discretionary approach does not seem inconsistent with the global context. Moreover, I’m simply not sure that exercising this discretion to allow enforcement in the narrowly-defined post-FNC circumstances we describe constitutes unilateral liberalization that is likely to influence how other countries negotiate with the United States. And if our FNC-stage adequacy proposal is adopted, post-FNC case-specific problems in foreign proceedings would probably be less likely to arise in the first place.

Second, even though the Hague Convention allows non-enforcement if “the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State,” the ALI Statute’s drafters explicitly rejected a “specific proceeding” due process exception as inconsistent with the statute’s pro-enforcement philosophy. How did the drafters overcome the concern about being inconsistent with the global context? Was the thought that the ALI Statute is actually in this respect LESS “liberal,” and that this difference therefore doesn’t undermine the U.S. bargaining position (or even somehow strengthens it)? Or were concerns about consistency with the global context simply outweighed by the ALI Statute’s pro-enforcement policy in this particular instance? In either case, it seems that while global context is, as Ron argues, very important, it is only one factor to consider among others, and should not necessarily be decisive.

Ron, this is such an interesting observation. I think the US experience with the Hague Evidence Convention and 28 U.S.C. § 1782 bears out a similar conclusion. But it’s completely counter-intuitive. Why should it be true that unilateral US liberalization makes it harder, not easier, for other states to reciprocate? Is it the loss of bargaining leverage that you have in mind?