Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

The Global Context for Forum Non Conveniens and for Case-Specific Exceptions to Recognition of Foreign Judgments

Professor Whytock’s comment today correctly notes in its next-to-last paragraph that “the ship of case-specific exceptions has set sail.” This statement is in response to my comments on the 2005 Uniform Foreign-Country Money Judgments Recognition Act and the 2005 ALI Proposed Federal Statute. It is important to take account not just of the national context for this discussion, but of the global context as well.

That global context includes the 2005 Hague Convention on Choice of Court Agreements. While the Convention has not yet gone into effect, Mexico has acceded to it and both the United States and the European Union have signed, thus indicating their intention to move forward with ratification and implementation. The Convention provides a parallel to the New York Arbitration Convention, by providing that courts in Contracting States shall (1) recognize and enforce exclusive choice of court agreements (Article 5); (2) defer to courts chosen in such agreements (Article 6); and (3) recognize and enforce the judgments resulting from litigation based on such agreements (Article 8). In Article 9, the Hague Convention contains a carefully constructed set of bases for non-recognition of a foreign judgment. That list includes the following:

(e) recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State.

The official report to the Convention, at paragraph 189, states that the second part of this provision “is intended to focus attention on serious procedural failings in the particular case at hand.” Thus the ship of case-specific exceptions has not only set sail in the United States, but globally as well. If it is appropriate to allow case-specific review for due process purposes when both parties have explicitly agreed to have the case heard in the court that has rendered the judgment, it seems reasonable to allow the same when one party has specifically requested (through forum non conveniens) that the case be heard in the court that has rendered the judgment.

I noted both in my Columbia Law Review Sidebar comments, and my comments on this blog yesterday, that any adjustment to U.S. law on either forum non conveniens or the recognition of foreign judgments should be accomplished only within the context of our global relationships on these issues. In this regard, unilateral liberalization of our standards for recognition of judgments could harm the U.S. position in the current efforts at the Hague Conference on Private International Law to resurrect the judgments portion of the general jurisdiction and judgments convention negotiations that occurred during the 1990’s. At the April 2012 Council on General Affairs and Policy of the Conference, an experts group was asked to continue discussion of this project. History has demonstrated that unilateral liberalization of U.S. rules on recognition and enforcement of foreign judgments places us in a very difficult negotiating position when trying to get other states to extend similar treatment to U.S. judgments.

Both the doctrine of forum non conveniens and the law of recognition and enforcement of foreign judgments are parts of a global framework of laws that deal with questions raised by the fact that jurisdiction may be available in multiple courts. Potential for forum shopping raises the possibility of parallel litigation, and states differ in their legal approach to these issues. Just as the 2005 Hague Convention provides an example of a global position on review of case-specific due process for judgments recognition purposes, Articles 21 and 22 of the 2001 Hague Interim Text for a convention on jurisdiction and judgments provide an example of a compromise between the strict civil law lis pendens approach to parallel litigation and the discretionary common law forum non conveniens approach. These should be part of the discussion of any U.S. developments in either of these two important areas of private international law.

Ron Brand
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2 responses to “The Global Context for Forum Non Conveniens and for Case-Specific Exceptions to Recognition of Foreign Judgments”

  1. Ted Folkman

    “History has demonstrated that unilateral liberalization of U.S. rules on recognition and enforcement of foreign judgments places us in a very difficult negotiating position when trying to get other states to extend similar treatment to U.S. judgments.”

    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?

    Reply
  2. Chris Whytock

    I also think Ron’s point about bargaining position is very interesting, and that it is a legitimate concern. But I do have a couple questions about this in addition to Ted’s.

    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.

    Reply

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