Introduction
Since the rise of globalization, nations have become more connected than you can imagine. Aside from industrialization, the legal field has also benefited from this phenomenon.
You are not restricted geographically from suing someone abroad who has harmed you. However, it is essential to comprehend the recognition and enforcement of foreign judgments and know how to follow up on the judgments issued in foreign litigation. In the context of law, the enforcement of foreign judgments is recognizing and enforcing in one jurisdiction judgments declared in another jurisdiction. The identification of such judgments may rely on bilateral or multilateral treaties between countries or any international agreement.
Once that foreign judgment is issued, the victorious party in the original case can pursue its enforcement overseas. Suppose the foreign judgment is related to finances. In that case, the judgment creditor can follow all the enforcement remedies as if the matter had arisen initially in the recognizing country, e.g., garnishment, judicial sale, etc.
If the judgment dealt with any other topic related to the status, granting injunctive relief, etc., the recognizing court would make appropriate orders that would be as effective as the original judgment.
Enforcement of Foreign Judgments
When it comes to enforcing a “foreign judgment,” it involves the recognition and enforcement in specific jurisdiction of judgments delivered in a country with that of a foreign country. For example, U.S. courts acknowledge the principle of full faith and credit emanated from the United States Constitution, which permits the enforcement of a judgment administered by a foreign court.
The procedure of documenting a foreign judgment for enforcement is known as domestication and is a mandatory requirement before its enforcement. This article will further deal with domestication in detail up ahead. Upon taking reasonable steps in documenting the judgment, it will be deemed fully domesticated, thereby granting it all the same privileges and enforcement rights as if it was a judgment administered by a local court.
In a situation where complete domestication has been satisfied in the local jurisdiction, enforcement action will be permitted. If the foreign country’s judgment is a monetary judgment and the judgment debtor has acquisitions or assets in the jurisdiction in which the judgment has been domesticated, the judgment creditor will have complete access to all of the functional enforcement remedies as if the case had initiated in the recognizing jurisdiction. When a non-monetary judgment is acquired, the recognizing court will enforce the original judgment through a court order.
Domestication of Foreign Judgments Issued by a Court in Another Country
Why is domestication necessary? Why not file a case in local jurisdiction rather than sue someone abroad? Before we can execute that judgment in our state or any jurisdiction other than the jurisdiction that initiated the judgment, we have to create a “domestication” action. Domestication is an integral type of legal proceeding in a relevant court in the jurisdiction where we want the judgment to be enforced. In cases of domestication action, we will request that the court give an impact on our foreign judgment.
The exact domestication process depends on the jurisdiction’s regulations where the party desires to enforce the judgment. Regulations specify the conditions that must be met, such as giving notice to other related parties, response deadlines, etc. Domesticating a judgment from a foreign country into the United States can be very complicated.
Typically, in most cases, a foreign country’s judgment will be tolerated by a United States court if the judgment is absolute, definitive, and fully enforceable in the jurisdiction of the judgment. Another requirement is that the country must have furnished both parties with the due procedure of law (adequate notice and an opportunity for hearing, legal representation, and similar rights) and had proper jurisdiction over the defendant(s) at that time. Whether the United States court will acknowledge, any foreign judgment will strictly depend on the specific details of the case in question.
Enforcement of Foreign Judgments
If there exists a judgment that was issued, this may result in the question of whether a foreign judgment is enforceable against third parties. A simple answer would be no, mainly against the entity for which it was issued. Can an international decision or decree be applied? In certain situations where a cross-border penalty is enforceable only against the ordered parties or against one of the groups identified in the prosecution against whom it is enforceable in addition to the parties to the conflict.
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Exceptions
While enforcing a foreign judgment, there may be grounds for the court not to acknowledge the judgment – grounds that defense counsel could put forward for the court’s perusal. Some available grounds for defense could be personal jurisdictional problems, lack of notice, forum non-conveniens in the originating court, etc. Now there are exceptions where a court might not enforce a foreign-country judgment:
- It was not generated by an impartial tribunal under practices compatible with the provisions of due process of law;
- That foreign court did not possess jurisdiction over the subject matter;
- That judgment is the result of fraud or deception;
- That judgment is objectionable to the public policy of the country where the enforcement is sought;
- That judgment clashes with another final and definitive judgment;
- That the proceeding in the foreign court contradicted the agreement between both the parties under which the dispute was to be resolved;
- That judgment was obtained via an unlawful transaction;
- That judgment was not conclusive.
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Conventions Governing Enforcement of Foreign Judgment
Regarding cross-border litigation, the European Union emerges as a winner.
The weapon behind this victory is the Brussels regime on jurisdiction and recognition of judgments which is the singular reference of EU regulations on transnational litigation. Even in situations of acknowledgment and enforcement of judgments from other member countries, the Brussels I Regulation is no longer the only piece of EU legislation.
However, it still holds the title of being the most significant one. Indeed, the development seems to mind in the direction of adopting European law for all transnational litigation, from complaint filing to the modalities of enforcing Judgments in cross-border cases.
The relevant rules of the European Union have changed significantly in recent years, and several reform proposals are currently being examined. Of these proposals, the most exciting aspects are those relating to what is known as the Brussels I Regulation. The main concern is the ongoing structural and conceptual changes in EU law on cross-border disputes for litigants and legal reformers in the United States.
It is a revised and updated version of the Brussels Convention of 1968. A treaty was negotiated when the European Community lacked the power to legislate in cross-border litigation and civil procedure.
The drafters of the Brussels Convention took a big step forward in the long history of negotiating recognition treaties in Europe by combining provisions on the recognition and enforcement of judgments with rules on the jurisdiction to adjudicate member state courts in transnational cases, along with provisions on parallel litigation. Another important step forward was making the relatively new European Court of Justice (ECJ) the final arbiter in interpreting the Convention.
Another essential convention is the New Hague Convention on enforcement of foreign judgments, considered revolutionary in international dispute resolution. Here the judgment must fulfill one of the jurisdictional requirements set out in Article 5 of the Convention to be suitable for enforcement or recognition. It states specific occasions in which the Contracting Nation can produce proclamations that limit its application in that country.
This particular declaration will affect the declaring nation itself and other Contracting Nations, which do not need to involve the Judgments Convention to judgments from the relevant nation regarding that specific matter. It simply delivers a straightforward way for recognition and enforcement and is subject to only limited grounds for refusal.
Conclusion
There are no difficulties with relying on foreign court decisions. But the concerned judge/s must be cautious and ensure not to give more prominent credit to case laws settled in entirely different social and economic scenarios. In this era of globalization of legislative requirements, there would be no explanation to deny judicial justice among diverse legal systems founded on similar regulations and objectives.
