Case of the Day: Gorsoan v. Bullock
Posted on April 6, 2021
The question in the case was whether the Florida courts should recognize and enforce a Mareva injunction, i.e., an asset-freeze injunction, entered by a court in Cyprus. The injunction was interlocutory. The Florida court enforced the Cyprus injunction on the grounds that, in general, foreign decrees should be enforced unless contrary to public policy, without undertaking the traditional analysis courts use in deciding whether to enter a preliminary injunction.
I am not sure that the ruling is correct, although I do not say that it is wrong. The court cited § 102, cmt. g of the Restatement (Second) of Conflicts of Laws, which reads:
It can therefore be assumed that a decree rendered in a foreign nation which orders or enjoins the doing of an act will be enforced in this country provided that such enforcement is necessary to effectuate the decree and will not impose an undue burden upon the American court and provided further that in the view of the American court the decree is consistent with fundamental principles of justice and of good morals.
But the blackletter rule of Section 102 makes it clear that the section is talking about judgments:
A valid judgment that orders the doing of an act other than the payment of money, or that enjoins the doing of an act, may be enforced, or be the subject of remedies, in other states.
Does the Restatement mean to include preliminary injunctions? It’s not clear from the face of the relevant section, § 92 and comments. “Judgment,” in the Restatement, “is a general term which includes not only judgments at law but also the orders, injunctions or decrees of equity courts, and the judgments of probate courts, admiralty courts and other special courts.” But does that mean permanent injunctions or decrees that come at the end of the case, or interlocutory orders? If it includes interlocutory orders, are interlocutory orders that a court issues in a purely legal action, where the words “injunction” or “decree” would not apply, also entitled to recognition and enforcement? If a US court orders a foreign litigant to turn over particular documents in discovery, could I take that order to the relevant foreign court and ask to have it enforced on comity grounds?
As I say, I am not sure what the right answer is here. All of this is not to say, by the way, that a plaintiff should not be able to get an asset freeze injunction in the United States (at least in state courts, in light of Grupo Mexicano, which freezes federal equity jurisdiction in the amber of 1789). But the question is whether the plaintiff is simply obtaining recognition of a foreign decree, or whether the plaintiff needs to make the usual showing of irreparable harm, likely success on the merits, etc.