Professors Samuel P. Baumgartner and Christopher Whytock have an interesting new paper questioning the need for systemic, as opposed to case-specific, grounds for refusing recognition and enforcement of foreign judgments. Current US law allows courts to refuse recognition for both case-specific reasons (“this judgment was obtained by fraud”) and reasons relating to the quality of the foreign judiciary overall (“the courts of country A do not provide due process to litigants”). This is, according to Baumgartner and Whytock, a unique feature of US law. But what purpose does it serve? The authors analyze a set of a few hundred decisions–the statistical part of the paper is interesting and may be useful to courts and practitioners in contexts outside the scope of the paper–and conclude that court decisions are correlated in a statistically significant way with the quality of foreign judiciaries, measured using the WGI Rule of Law index and its Culture of Corruption index, and the CIRI judicial independence score. But the correlation is imperfect. The authors’ intuition, which I share, is that the reason the correlation is not stronger because US judges are reluctant to brand a foreign judiciary as systematically inadequate. They also suggest that the courts may not want to discourage potential litigants from “investing in an action to enforce judgments from [the] state of origin in a U.S. court.” This seems like a good intuition, but US courts are pretty good at making rules that drive business away (arbitration doctrine is an example, as, perhaps, is US pretrial discovery practice) that I wonder whether judges in practice think this way. Certainly judges in the past did (think of the struggle between the King’s Bench and Common Pleas for business).
The authors have a nuanced view on whether we should retain the systemic basis for refusing recognition in our law, though their ultimate conclusion is that it may not be necessary given the case-specific grounds in the law. I think there are perhaps some political grounds on which we should be very cautious about removing grounds for non-recognition from the law, even if the authors’ approach is correct. The overall goal is or should be for the United States to sign up for the treaty-based system of recognition and enforcement that the Hague Conference has been promoting through the Judgments Convention. (Note that although the Judgments Convention does not make systemic inadequacy of a foreign judiciary a basis for non-recognition, it does allow states to declare that the Convention will not be in force between them and particular other states, see art. 29, and in such cases, it seems to me that systemic inadequacy could continue to be a basis for nonrecognition after US ratification, at least with regard to judgments of states that are not parties to the Convention). There are a lot of hurdles to overcome, including political disinterest in the issue and the Byzantine fight about whether such treaties should be implemented in state or federal law. It seems to me that another hurdle is the worry that the United States might be obligated to enforce “bad” judgments issued by dodgy courts. This worry might take the form of worry about the courts of the US’s main geopolitical adversaries, or it might take the form of worry about the Steven Donzigers of the world, obtaining questionable, big judgments in small countries through corruption. It may well be, as the authors say, that the problems are adequately addressed through the case-specific grounds. But if we want to encourage the US to sign and ratify the Judgments Convention, it seems to me we should not do anything to feed the (perhaps unfounded) fears that the US might be required to recognize “bad” judgments. In other words, given how rarely systemic inadequacy is actually used to deny recognition, and given the politics, what’s the harm in keeping it as part of the law?