Friend of Letters Blogatory John Coyle has an important post up about efforts to get the United States to ratify the Convention on Choice of Court Agreements and the Judgments Convention. The United States was a prime mover in the negotiations that led to these two conventions and has signed both, but for years, US ratification has been delayed because of a fight about how to implement the Conventions. On the one hand, judgment recognition law in the United States is traditionally state law rather than federal law, and the Uniform Law Commission has pushed for a “cooperative federalism” approach to implementation, under which the conventions would be implemented in both federal law and in state law. Arbitration provides an example here, since both federal law (the Federal Arbitration Act) and state law (the Uniform Arbitration Act, or the Revised Uniform Arbitration Act) apply, though the federal law has preemptive force. As John explains, the state law folks wanted a kind of reverse preemption, in which federla law would provide that the courts would have to apply state law, as long as the state had enacted the appropriate uniform act. But as John reports, the ULC has recently abandoned its insistence on cooperative federalism, at least as to COCA, which means the State Department may now be more comfortable recommending that the Senate consent to ratification.

The situation is a little more complex with respect to the Judgments Convention, but the bottom line is that the ULC has gotten comfortable with the idea that the Convention allows litigants to seek recognition of foreign judgments under state law, which may be more liberal than federal law, as long as state law is compatible with the requirements of the Convention.

A foreigner cold well throw up his or her hands and complain that all of this is hopelessly byzantine. Fair enough! But it seems as though there is more reason to be hopeful about ratification of these important conventions than there has been in a long time. And there is no question that ratification will be in our national interest. Why? Because we are already so liberal about recognizing foreign judgments. Why not get something in return for our liberality? And I do think that American ratification would give a lot of momentum to the effort to get other countries to sign and ratify the conventions.