The United States is currently facing a period of intense interest in transnational litigation. Not only has the U.S. Supreme Court become increasingly active in this field, but the American Law Institute (ALI) is also in the process of revising and drafting a number of Restatements concerning international law. The United States also recently signed The Hague Convention on Choice of Court Agreements (COCA), although the instrument has not yet been ratified.
The United States can and should reconsider U.S. law concerning the recognition and enforcement of foreign judgments immediately and unilaterally. Although this may appear to be a daunting task, reform efforts will be greatly aided by a proposed federal statute drafted by the ALI in 2006 (ALI Proposed Statute). Congress has held some initial hearings regarding recognition and enforcement of foreign judgments, which suggests that there is some interest in legislative reform. The international business community has also thrown its support behind reform efforts, based on a growing recognition that a predictable and uniform method of recognizing and enforcing foreign judgments actually works to the benefit of U.S. companies and individuals.
As positive as these measures may be, they would doubtless be facilitated by scholarly analyses demonstrating the extent of the problems relating to the recognition and enforcement of foreign judgments and the benefits of a new approach. Unfortunately, the “scholarly desert” regarding foreign judgments extends to the ALI Proposed Statute. The absence of critical commentary regarding whether and to what extent the ALI's recommendations can and will resolve existing problems is highly problematic, since Congress is unlikely to act without a sense of urgency or a proper understanding of the ramifications of the ALI Proposed Statute.
This Article fills the analytical gap by outlining the scope of the existing problems in this area of law and conducting a detailed and comprehensive evaluation of the ALI Proposed Statute. Part II provides a basic introduction to the recognition and enforcement of foreign judgments in the United States, including actions filed in both federal and state court and proceeding under both federal and state law. This section also outlines various issues relating to the preclusionary effect of foreign judgments. Next, Part III identifies the specific problems that arise under the current enforcement regime while Part IV considers whether and to what extent the ALI Proposed Statute cures these concerns. In undertaking this analysis, Part IV not only compares the ALI's proposals to existing U.S. law but also considers whether the ALI's recommendations constitute an improvement over the current enforcement regime. Part V concludes the Article by drawing together the various strands of discussion.
S.I. Strong, Recognition and Enforcement of Foreign Judgments in U.S. Courts: Problems and Possibilities, 33 Rev. Litig. 45 (2014)