USA Law and Practice Contributed by: Jason W. Myatt, Ankita Ritwik and Charline Yim, Gibson, Dunn & Crutcher LLP
3.4 Process of Enforcing Foreign Judgments As noted above, the recognition and enforcement of foreign judgments in the United States is addressed on a state-by-state basis. In most states, a foreign judgment that is final, con - clusive and enforceable in the country where rendered can be submitted by the judgment creditor to a US state or federal court for recognition, usually under the forum state’s recognition statute. Most US states require the party seeking recognition and enforcement of a foreign judgment to file an action in a court that has an adequate basis to exercise jurisdiction over the alleged judgment debtor. While further procedural requirements vary on a state- by-state basis, most states will require the enforcing party to provide a certified English translation for a judgment in a foreign language. Once recognised, a foreign money judgment is enforceable as if it were a judgment of the state or federal court that recognised the award. Recognised foreign judgments may able be moved between US jurisdictions in the same manner as domestic judg - ments. 3.5 Costs and Time Taken to Enforce Foreign Judgments Recognition and enforcement processes vary state by state and so do the costs and time. While there are generally de minimis administrative costs, such as filing fees and other court costs, asso - ciated with the recognition and enforcement pro - cesses, the main cost faced by parties will be legal fees. The length and complexity of the recognition and enforcement process will have the greatest impact on these fees. The timing of recognition proceedings for a foreign judgment will depend on a number of factors, includ - ing: • the court where enforcement is sought; • the nature of the foreign judgment; • the time needed to complete service on the debtor; • the issuing country’s judicial system;
• the availability of non-recognition grounds; • whether and how much discovery is sought and ordered; and • whether the first instance recognition decision is appealed. Some states provide expedited judgment recogni - tion procedures, which can speed up the recognition process. Nevertheless, like many US court actions, recognition proceedings often take a year or more to complete. 3.6 Challenging Enforcement of Foreign Judgments A foreign judgment may generally be challenged by a debtor for: • mandatory grounds; • discretionary grounds; and • violation of a common law principle. Mandatory Grounds for Non-Recognition In states that follow the 1962 or 2005 Model Acts, the following mandatory grounds are available. • Lack of Impartial Tribunals – Where there was not an “impartial administration of justice between the citizens of its own country and those of other countries” in a “full and fair” trial within the foreign court, US courts cannot enforce judgment ( Hilton v Guyot , 159 U.S. 113, 202 (1895)). • Insufficient Due Process – Where the judgment was rendered in a judicial system that does not provide procedures with sufficient due process compatible with US constitutional requirements under the Fifth and Fourteenth Amendments. • Lacking Personal Jurisdiction – Where the foreign court rendering the decision did not have personal jurisdiction over the judgment debtor. • Lacking Subject Matter Jurisdiction – Where the foreign court rendering the decision did not have jurisdiction over the subject matter of the dispute. Discretionary Grounds for Non-Recognition States that have incorporated the 1962 and 2005 Model Acts into their statutory code may also recog - nise several discretionary grounds for non-recogni - tion, including the following.
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