The case of the day is DeJoria v. Maghreb Petroleum Exploration, S.A. (5th Cir. 2015). This is the appeal of the case of the day from September 4, 2014. I won’t repeat the facts from the prior post: the question in the case was whether a Moroccan judgment should be recognized, and in particular whether Morocco provides impartial tribunals and procedures compatible with the requirements of due process of law.
The district court held that the judgment was not entitled to recognition because the Moroccan judiciary was unsatisfactory. I expressed doubts about the ruling, because the facts the court relied on to conclude that the Moroccan courts lacked independence from the executive, well, didn’t seem that bad.
The Fifth Circuit reversed. It acknowledged the evidence suggesting a lack of judicial independence but held that the evidence did not “present the entire picture.” The expert testimony and reports from the USAID and the State Department indicated that Morocco was taking steps to improve its judiciary. Because the evidence condemning Morocco’s courts was not so strong, it was improper to reject the judgment on grounds of systemic inadequacy:
The Texas Recognition Act does not require that the foreign judicial system be perfect. Instead, a judgment debtor must meet the high burden of showing that the foreign judicial system as a whole is so lacking in impartial tribunals or procedures compatible with due process so as to justify routine non-recognition of the foreign judgments. DeJoria has not met this burden. Based on the evidence in the record, we cannot agree that the Moroccan judicial system lacks sufficient independence such that fair litigation in Morocco is impossible.
The due process requirement is not intended to bar the enforcement of all judgments of any foreign legal system that does not conform its procedural doctrines to the latest twist and turn of our courts. Thus, the record here does not establish that any judgment rendered by a Moroccan court is to be disregarded as a matter of course.
The court contrasted the case of Morocco with some of the rare cases where courts have held a country’s entire judiciary insufficiency. The examples were Iran and Liberia. I won’t give the relevant details of those two systems, but suffice it to say that the Moroccan courts were not in the same league, according to the Fifth Circuit.
I think the gist of this decision is generally right—extraordinary evidence should be required before holding a country’s judiciary as a whole inadequate. This is, in part, a matter of comity. I am not sure we would want foreign courts to take too close a look at some of the less admirable aspects of our judiciary, for example, partisan judicial elections, or even some perfectly appropriate aspects of our constitutional system that could be criticized by someone looking for things to criticize. Take the following argument, intended to show the susceptibility of the judiciary to political influence:
The judges are appointed by the head of the executive branch with the consent of the upper house of the legislature and can be removed by the legislature. There is no check on the legislature’s power of removal. The legislature also controls the budget of the courts, has the power to change their rules of procedure and evidence, and even has the power to define their jurisdiction, and on occasion has enacted statutes stripping the courts of their jurisdiction in particularly contentious areas. The judges of the highest court, as well as judges of the intermediate appellate courts, must pass through a highly politicized appointment process before taking the bench.
I’m just sayin’.