United States of America

United States of America

Description

In the United States, every judgment of a court of another state is in some sense a ‘foreign judgment’ which cannot be enforced directly but must be made the subject of another action. Under art IV §I of the Constitution, however, plus implementing legislation adopted by the first Congress, the judgments of any court within the United States ‘shall have the same full faith and credit’ given them in every court within the United States as they may have by law or usage in the courts of the state where they are rendered. Though the sources and original intention of the Full Faith and Credit clause and the Act of 1790 are surprisingly unclear, and the defences to actions on judgments were not fully established until the middle of the present century, the tradition and practice of enforcing foreign (sister-state) judgments is by now clear and commonplace. The command of the Constitution does not, of course, apply to foreign-country judgments, but the attitude toward enforcement of judgments rendered by other jurisdictions seems to carry over to foreign-nation judgments as well, thus making the United States—without benefit of any treaties or federal statute—among the most receptive nations with regard to recognition and enforcement of foreign-country judgments. Ordinarily a final judgment issued by a foreign-country court can be recognized without any special proceedings, and can be enforced by a simple action against a judgment debtor, typically by motion for summary judgment in lieu of complaint. United States law makes no distinction between contested judgments and judgments rendered upon default; defences based on the merits of the first judgment are (with minor exceptions) excluded; defences based on the public policy of the forum, while theoretically available, are practically excluded; and even defences going to the jurisdiction of the rendering court are subject to the rules of res judicata, ie the defence is generally not available if the judgment debtor challenged the jurisdiction of the first court before that court and was unsuccessful. Foreign counsel are often surprised to learn that no federal law governs the enforcement of foreign-country judgments, and indeed that even in federal courts state rather than federal law applies to this subject. However, except with respect to certain foreign-country divorce judgments (so-called migratory or ‘suit-case’ divorces), the practice of the fifty states does not vary widely'. That practice is made up in large part of common law decisions of state courts, applicable since 1938 in federal courts as well; twenty-two states have adopted the Uniform Foreign Country Money-Judgments Recognition Act, including California, Illinois, Massachusetts, New York and Texas, but most other states apply the principles of the Uniform Act without having formally adopted it as state law. Moreover, while the drafters of the Uniform Act confined their text to money judgments, the practice extends to other judgments as well. The requirement of reciprocity, though formally accepted by the US Supreme Court in 1895, is no longer of practical importance in most states of the United States. There are several states, however, (eg Texas, Massachusetts and Georgia) which continue to insist upon the requirement. For those foreign countries, such as the Federal Republic of Germany, that require a finding of reciprocity as a condition of recognition of foreign judgments’, it would seem that the judgments of most state and federal courts in the United States (if otherwise entitled to recognition) should be found to qualify, on the basis of the recognition and enforcement practice here summarised, and spelled out in more detail in the following sections.

Source Publication

Enforcement of Foreign Judgments Worldwide

Source Editors/Authors

Charles Platto, William G. Horton

Publication Date

1993

Edition

2

United States of America

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