Thanks again to Ted Folkman for hosting this discussion, from which I’ve learned a lot.
There is much to discuss, and everyone has raised important points. However, I’ve found Professor Brand’s post particularly thought provoking as I continue to grapple with these issues—especially his comments regarding the case-specific defenses against enforcement contained in the 2005 Uniform Foreign-Country Money Judgments Recognition Act (the “UFCMJRA”) and the American Law Institute’s proposed federal statute on recognition and enforcement of foreign judgments (the “ALI Statute”). Rather than advocating a particular position, I make these comments more in the spirit of seeking a better understanding of the theory behind these case-specific exceptions—not only in the post-FNC dismissal context, but in general. Professor Brand’s response to Ted Folkman’s comments touch on some of the possibilities, as do the drafters’ comments on the UFCMJRA and the ALI Statute. I’ll use these as a point of departure.
As Professor Brand notes, the UFCMJRA and the ALI Statute both have exceptions to enforcement that apply if the judgment was obtained by extrinsic fraud or was “rendered in circumstances that raise substantial [and justifiable] doubt about the integrity of the rendering court with respect to the judgment [in question].”[efn_note]UFCMJRA § 4(c)(2), (7); ALI Statute § 5(a)(ii), (v). There are two differences: only the ALI Statute contains the language in [brackets]; and the exceptions are discretionary in the UFCMJRA and mandatory in the ALI Statute.[/efn_note] The comments to the ALI Statute clarify that the “integrity” exception is to address corruption, and “requires showing corruption in the particular case and its probable impact on the judgment in question.”[efn_note]ALI Statute, § 5 cmt. d.[/efn_note] In addition, the UFCMJRA (but not the ALI Statute) does not require enforcement if “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.”[efn_note]UFCMJRA § 4(c)(8).[/efn_note] Similarly, the 2005 Hague Convention on Choice of Court Agreemetns does not require enforcement if “the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State.”[efn_note]Hague Convention art. 9(e).[/efn_note]
To be clear, there are two distinct questions about these case-specific defenses. The first one is easy. Should a defendant be forced to comply with a foreign judgment caused by a plaintiff’s fraud, a judge’s corruption, or proceedings incompatible with due process of law? No. But the second question is more difficult. Who should decide whether there was fraud, corruption or proceedings incompatible with due process in specific trial proceedings and, if so, whether this had an impact on the judgment? The foreign judicial system or the U.S. judicial system?
It is this second question that we are dealing with. And the answer is probably “it depends.”
Although not our primary focus, Cassandra Burke Robertson and I briefly discussed and critiqued these case-specific exceptions in our article.[efn_note]Christopher A. Whytock & Cassandra Burke Robertson, Forum Non Conveniens and the Enforcement of Foreign Judgments, 111 Columbia Law Review 1444, 1502-1505 (2011). We only critiqued them in the post-FNC context.[/efn_note] In short, we suggested that if the foreign judicial system is a system that provides “impartial tribunals” and “procedures compatible with the requirements of due process of law,”[efn_note]UFCMJRA § 4(b)(1).[/efn_note] then the foreign judicial system should, through its appellate and other processes, be capable of identifying and remedying deficiencies that occur in specific trial proceedings. I reiterated this point in my original post, and Ted Folkman makes this point in his comment on Professor Brand’s post.
Outside the post-FNC context, in Society of Lloyd’s v. Ashenden, Judge Posner argued that by requiring U.S. courts to decide case-specific defenses, judgment enforcement would “require a second lawsuit … thus converting every successful multinational suit for damages into two suits.” He reasoned that defendants should not be able “to object in the collection phase of the case to the procedures employed at the merits phase, even though they were free to challenge those procedures at that phase and indeed did so.” To allow this would be “inconsistent with providing a streamlined, expeditious method for collecting money judgments rendered by courts in other jurisdictions.”[efn_note]233 F.3d 473, 477-78 (7th Cir. 2000). The Illinois legislature apparently did not consider, or was not convinced by, Judge Posner’s critique—it has since adopted legislation based on the UFCMJRA, including its new case-specific exceptions.[/efn_note]
Judge Posner’s critique of case-specific (or, as he called them, “retail”) defenses emphasizes efficiency and streamlined enforcement—but not unconditionally. His critique assumes that the defendant was “free to challenge” the proceedings in the foreign judicial system on case-specific grounds and that the judicial system indeed has impartial tribunals and procedures compatible with the requirements of due process of law; and he suggests that if these conditions are satisfied, the foreign judicial system should decide case-specific defenses and the U.S. court should defer to the foreign judicial system’s decision. From this perspective, a U.S. court enforcing a judgment in the face of a judgment debtor’s case-specific objections is not deciding that the judgment should be enforced notwithstanding fraud, corruption or lack of due process in the specific proceedings; rather, it is deferring to another judicial system’s decision about the merits of those objections because that system has impartial tribunals and procedures compatible with due process.
Although the ALI Statute contains case-specific exceptions, it does partially embrace the notion that a systemically adequate foreign judiciary should be capable of resolving case-specific problems. Most importantly, the drafters explicitly rejected the UFCMJRA’s new case-specific due process exception (which is similar to the Hague Convention’s case-specific “fundamental principles of procedural fairness” exception), arguing that “[s]uch a detailed inquiry into the foreign judgment is inconsistent with the pro-enforcement philosophy of this Act.”[efn_note]ALI Statute § 5 cmt. c.[/efn_note] In addition, the ALI Statute (like the UFCMJRA) rejects intrinsic fraud as a defense precisely because “such an assertion should have been raised in the rendering court.”[efn_note]ALI Statute § 5 cmt. g. See also UFCMJRA § 4 cmt. 7 (“[T]he assertion that intrinsic fraud has occurred should be raised and dealt with in the rendering court.”).[/efn_note]
So what is the rationale for the case-specific exceptions? Regarding extrinsic fraud, the rationale arguably is embedded in its definition—the defendant was denied an opportunity to present its case (not to mention raise case-specific exceptions) in the foreign judicial system because, for example, “the plaintiff deliberately had the initiating process served on the defendant at the wrong address, deliberately gave the defendant wrong information as to the time and place of the hearing, or obtained a default judgment against the defendant based on a forged confession of judgment.”[efn_note]UFCMJRA § 4 cmt. 7.[/efn_note] As the name suggests, this defense is about something “external” to the trial proceedings, and in this sense perhaps it is not aptly classified as “case-specific” anyway. If the defendant doesn’t learn of the proceeding until enforcement is attempted in the United States, it seems fair to allow it to object in the U.S. enforcement proceedings.
What about the case-specific integrity and due process exceptions? Is the rationale that the U.S. judicial system is simply more capable of appropriately assessing allegations of case-specific improprieties in specific foreign proceedings than the foreign judicial system itself, even if the foreign system has “impartial tribunals” and “procedures compatible with the requirements of due process of law,” and that a U.S. court therefore should not defer to it? Not only is this rationale’s factual premise likely to be uncertain in many cases; it also seems in tension with the principles of comity upon which judgment enforcement doctrine is based.
Is the rationale that a judicial system providing “impartial tribunals” and “procedures compatible with the requirements of due process of law” means something less than a judicial system that is capable of reviewing a defendant’s alleged breaches of integrity by a judge or violations of due process in specific trial proceedings? This would be somewhat counterintuitive—after all, it would seem that a judicial system that lacks this capability would not be a system with procedures compatible with the requirements of due process of law.
As Professor Brand notes, the ship of case-specific exceptions has set sail. States are increasingly adopting legislation based on the UFCMJRA. I may be hoping for more doctrinal coherence than can be expected in the messy world of transnational litigation. But I feel that we still need a better developed theory for why these exceptions are necessary in addition to the systemic due process/impartiality exception.[efn_note]And in addition to the various other exceptions contained in the UFCMJRA and the ALI Statute.[/efn_note] At a practical level, by making the rationale for these exceptions more explicit, legislators may be better able to evaluate them as they consider whether or not to adopt the UFCMJRA and the ALI Statute.
Finally, to come back to the relationship between the FNC doctrine and judgment enforcement: under the UFCMJRA and the Hague Convention, the case-specific exceptions are discretionary—if one of them applies, a court may, but is not required, to decline enforcement.[efn_note]UFCMJRA § 4(c) (“need not recognize”); Hague Convention art. 9 (recognition “may be refused”).[/efn_note] Even as the UFCMJRA spreads, and even if the Hague Convention enters into force, US courts may use this discretion to help avoid the sort of access-to-justice gap that Professor Robertson and I identify in our article. And enforcement exceptions aside, our FNC-stage proposal remains important: from the perspectives of due process, access to justice, and efficiency, a suit should not be dismissed on FNC grounds in the first place if the foreign judiciary does not satisfy the systemic due process standard or is otherwise unlikely to be able to produce an enforceable judgment.