Enforcement of foreign judgments

In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.

Definition of terms

The "recognition" of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another "foreign" country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit.
In English law, there is a clear distinction between recognition of foreign judgments, and enforcement of foreign judgments. Recognition means treating the claim as having been determined in favour of one of the litigating parties. This is an acknowledgment of foreign competence and of the settling of a dispute, known as res judicata. Enforcement, by contrast, is the implementation of the judgment.
In American legal terminology, a "foreign" judgment means a judgment from another state in the United States or from a foreign country. To differentiate between the two, more precise terminology used is "foreign-country judgment" and "foreign sister-state judgment".
Once a foreign judgment is recognized, the party who was successful in the original case can then seek its enforcement in the recognizing country. If the foreign judgment is a money judgment and the debtor has assets in the recognizing jurisdiction, the judgment creditor has access to all the enforcement remedies as if the case had originated in the recognizing country, e.g. garnishment, judicial sale, etc. If some other form of judgment was obtained, e.g. affecting status, granting injunctive relief, etc., the recognizing court will make whatever orders are appropriate to make the original judgment effective.
Foreign judgments may be recognized either unilaterally or based on principles of comity, i.e. mutual deference between courts in different countries. In English courts, the basis of the enforcement of foreign judgments is not comity, but the doctrine of obligation.
Between two different States in the United States, enforcement is generally required under the Full Faith and Credit Clause of the U.S. Constitution, which compels a State to give effect to another State's judgment as if it were local. This usually requires some sort of an abbreviated application on notice, or docketing. Between one State in the United States, and a foreign country, e.g. Canada, the prevailing concept is comity. The Court in the United States, in most cases, will unilaterally enforce the foreign judgment, without proof of diplomatic reciprocity, either under judge-made law or under specific statutes.
Recognition will generally be denied if the judgment is substantively incompatible with basic legal principles in the recognizing country. For example, U.S. courts, in accordance with the Securing the Protection of our Enduring and Established Constitutional Heritage Act, are prohibited from recognizing or enforcing foreign libel judgments against any United States person unless the foreign country in which the judgement was made protects freedom of speech to at least the same degree as the United States and the foreign court's conduct of the case in which the judgement was reached respected the due process guarantees of the U.S. Constitution to the same extent as a U.S. court would have.

Exercise of jurisdiction in recognition cases

If the country that issued the judgment and the country where recognition is sought are not parties to the Hague Convention on Foreign Judgments in Civil and Commercial Matters, the Brussels regime or a similar treaty or convention providing for the routine of registration and enforcement between states, the courts of most states will accept jurisdiction to hear cases for the recognition and enforcement of judgments awarded by the courts of another state if the defendant or relevant assets are physically located within their territorial boundaries. Whether recognition will be given is determined by the lex fori, i.e. the domestic law of the court where recognition is sought, and the principles of comity. The following issues are considered:

Whether the foreign court properly accepted personal jurisdiction over the defendant;
Whether the defendant was properly served with notice of the proceedings and given a reasonable opportunity to be heard which raises general principles of natural justice and will frequently be judged by international standards ;
Whether the proceedings were tainted with fraud; and
Whether the judgment offends the public policy of the local state.

There is a general reluctance to enforce foreign judgments which involve multiple or punitive damages. In this context, it is noted that the U.S. is not a signatory to any treaty or convention on foreign judgments and there are no proposals for this position to change. When it comes to seeking the enforcement of U.S. judgments in foreign courts, many states are uncomfortable with the amount of money damages awarded by U.S. courts which consistently exceed the compensation available in those states. Further, the fact that the U.S. courts sometimes claim extraterritorial jurisdiction offends other states' conceptions of sovereignty. Consequently, it can be difficult to persuade some courts to enforce some U.S. judgments. The Hague choice of court convention provides for the recognition of judgement given by the court chosen by the parties in civil and commercial cases in all other parties to the convention. The convention has, as of 2013, not entered into force. Regarding maintenance obligations, the Hague Maintenance Convention provides for recognition of all kinds of maintenance-related judgements.

United States

If the time to appeal in the court of origin has lapsed, and the judgment has become final, the holder of a foreign judgment, decree or order may file suit before a competent court in the U.S. which will determine whether to give effect to the foreign judgment. A local version of the Uniform Foreign Money Judgments Recognition Act applies in most states, for example in California, 13 U.L.A. 149.
A judgment rendered in a "sister" state or a territory of the U.S. is also referred to as a "foreign judgment". 48 states, the District of Columbia, the Northern Mariana Islands, and the U.S. Virgin Islands have adopted the Uniform Enforcement of Foreign Judgments Act, 13 U.L.A. 261, which requires the states and the territories to give effect to the judgments of other states and territories, if an exemplified copy of the foreign judgment is registered with the clerk of a court of competent jurisdiction along with an affidavit stating certain things. The only U.S. states which have not adopted the Uniform Enforcement of Foreign Judgments Act are California and Vermont.
New York and Connecticut are two of a small minority of U.S. jurisdictions that do not simply allow a judgment creditor to file a foreign judgment from a sister state if the judgment was obtained by default or the judgment was obtained by confession. Instead, a party wishing to domesticate the foreign default judgment or foreign judgment obtained by confession must bring another action in New York "on the judgment" where the relief sought is to have the foreign judgment domesticated in New York. Moreover, a quicker "motion-action" procedure is available in New York where the owner of the foreign default judgment/judgment by confession files a summons and notice of motion for summary judgment in lieu of complaint.
When seeking to enforce a judgment in or from a state that has not adopted the Uniform Act, the holder of the judgment files a suit known as a "domestication" action. Since the Full Faith and Credit Clause of the U.S. constitution requires that states honor the judgments of other states, the domestication of a judgment from another state is generally a formality, even in the absence of the expedited procedure under the UEFJA.
To solve the problem of libel tourism, the SPEECH Act makes foreign libel judgments unenforceable in U.S. courts, unless those judgments are compliant with the U.S. First Amendment. The act was passed by the 111th United States Congress and signed into law by President Barack Obama.

Exceptions

A state may not enforce a foreign-country judgment in the following cases:

The judgment was not rendered by an impartial tribunal under procedures compatible with the requirements of due process of law;
The foreign court did not have personal jurisdiction over the defendant;
The foreign court did not have jurisdiction over the subject matter;
The defendant did not receive notice of the proceedings in sufficient time to enable him to defend;
The judgment was obtained by fraud;
The judgment is repugnant to the public policy of the state where enforcement is sought;
The judgment conflicts with another final and conclusive judgment;
The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute was to be settled;
In the case of jurisdiction based only on personal service, the foreign court was an inconvenient forum for the trial;
The judgment seeks to enforce the revenue and taxation laws of a foreign jurisdiction;
The judgment was obtained through an illegal transaction;
The judgment is not conclusive.
Canada

In order to be recognized and enforced in Canada under the common law, foreign judgments must meet three conditions.
First, foreign judgments will only be enforced in Canada if they stem from a final and conclusive decision. "Final and conclusive" refers to any judgment which can no longer be modified by the foreign court; the court must have no power to vary the judgment or to retry the issue. However, the judgment may still be appealed in the court system which issued it, and if an action is launched to enforce that judgment in Canada, the Canadian judge may issue a stay pending the outcome of the appeal. It is important to note that there is no automatic right to a stay given a pending appeal in the foreign jurisdiction, nor does the fact that a case is appealable have any bearing on its finality and thus enforceability. Factors that courts consider when contemplating a stay in this circumstance include whether the appeal was brought promptly and whether either party would suffer a loss as a result of the stay. In Quebec, however, a foreign judgment that is still subject to appeal cannot be enforced in Canada, even if it can be enforced in the foreign jurisdiction.
Second, the foreign judgment must either be a pecuniary judgment for a specified sum, or a non-monetary judgment that the enforcing court agrees to enforce. Judgments that stem from penal laws of a foreign country will not be enforced, nor will Canadian courts collect revenue or tax on behalf of foreign states.
Third, the foreign court that issued the judgment must have had jurisdictional competence over the subject matter or defendant. The foreign court's jurisdiction is not assessed by its own rules but by tests specific to Canadian recognition and enforcement. The Canadian enforcing court is not required to have a connection to the subject matter of the action or the defendant.