Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute: Proposed Final Draft (April 11, 2005)
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Description
Reporters Andreas Lowenfeld and Linda Silberman have worked for six years on proposed federal legislation concerning enforcement of foreign judgments. In the United States, the subject has largely been treated as a matter of state law, notwithstanding its substantial significance for relationships with other countries. The ALI initially asked Professors Lowenfeld and Silberman to draft implementing legislation for what was then expected to be an agreement, drafted under the auspices of the Hague Conference on Private International Law, for an international convention on Jurisdictions and Judgments. The State Department encouraged the ALI to undertake this work. When progress slowed at The Hague, the Reporters and most of their Advisers decided that the United States would benefit from a federal statute whether or not there was a convention to implement and that the ALI should draft and recommend such a statute. Some Advisers and some Institute members have disagreed with that view, believing that state jurisprudence on the subject, guided by the Uniform Act recommended by the National Conference of Commissioners on Uniform State Laws and enacted in about 30 states, has been satisfactory. However, substantial majorities of the Advisers, the ALI Council, and our interested members have continued to support the effort to recommend a federal statute. We expect to conclude work on this subject this year under the project’s new and more accurate title: Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute. The analysis is expressed in a comprehensive review of the law, largely contained in commentary and Reporters’ Notes. The proposed statute is in the tradition of ALI statutory work on tax law, on securities law, and most recently on the Federal Judicial Code. Our goal in this project is to clarify the law and to foster consideration of federal legislation to achieve national treatment of foreign judgments and the uniformity, in both federal and state courts, that should attend such treatment. Federal legislation would be an appropriate exercise of Congressional authority and, to the extent the Supreme Court continues to treat recognition and enforcement of foreign judgments as matters governed by state law, would be necessary to transform an important question, with growing international implications, from one of state law to one of national law. The constitutional basis for the legislation is set out in the Introduction to this draft. The most controversial issue in this effort has been whether to require reciprocity from countries whose judgments come before an American court for enforcement. The Reporters have done imaginative and sophisticated work to draft and explain the reciprocity requirement included in the present draft. The membership of the ALI was and probably still is divided on whether the statute should contain such a requirement, but a vote at last year’s Annual Meeting favored reciprocity. We believe that this project will have influence whether or not the recommended statute is enacted. That was true of the Institute’s Federal Securities Code and of a number of our federal income tax projects. It was also true of the ALI’s important Study of the Division of Jurisdiction Between State and Federal Courts, published in 1969. When we recommended Federal Judicial Code amendments in 2004, we said of that earlier work: “[T]he 1969 Study . . . exerted [an] enormous influence . . ., but . . . [the] Congress [was never] persuaded to adopt its recommendations on a wholesale basis.” Federal Judicial Code Revision Project, Introductory Statement at 1. We hope that at an appropriate time, the recommended federal statute will achieve Congressional approval. But whether or not it does, we think that our work will help the legal community understand these challenging issues and that it will influence the future development of the law of judgments in the international arena. The Reporters, leading scholars of both Civil Procedure and international law, have made major contribution to the Institute and legal scholarship. We thank them, the distinguished group of Advisers who assisted the Reporters, and the many ALI members who have participated in our lively discussions of this subject.
Publication Date
2005
Recommended Citation
Lowenfeld, Andreas F. and Silberman, Linda J., "Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute: Proposed Final Draft (April 11, 2005)" (2005). Faculty Books & Edited Works. 678.
https://gretchen.law.nyu.edu/fac-books-edited-works/678
