USA – NEW YORK Trends and Developments Contributed by: Christopher Harris and Leah Friedman, Latham & Watkins
Abroad Publications Inc ., 585 N.Y.S.2d 661, 665 (Sup. Ct. 1992) (refusing to recognise an English libel judgment on the ground that English defamation law lacked the protections for speech and press guaran - teed by the U.S. and New York Constitutions). Conflict with another judgment A court may decline recognition if the foreign judg - ment conflicts with another final and conclusive judg - ment, whether foreign or domestic. See CPLR Section 5304 (b)(4). The conflicting-judgment defence requires that the two judgments be genuinely irreconcilable, ie that compliance with one would necessarily preclude compliance with the other. When the foreign judgment conflicts with a prior U.S. judgment between the same parties on the same course of action, non-recognition is appropriate because the U.S. judgment is presump - tively entitled to full faith and credit. See Byblos Bank Eur ., S . A . v Sekerbank Turk Anonym Syrketi , 10 N.Y.3d 243, 248–49 (2008) (court properly exercised discre - tion to deny recognition of Belgian judgment that dis - regarded – and conflicted with – previously-rendered Turkish judgment); Thai - Lao Lignite ( Thail .) Co . v Gov ’ t of the Lao People ’ s Democratic Rep ., 864 F.3d 172, 181 (2d Cir. 2017) (the district court’s denial of rec - ognition was appropriate because English judgment enforcing arbitral award conflicted with Malaysian judgment annulling award). Violation of a forum-selection clause Recognition may be denied where the proceeding in the foreign court was conducted in violation of a bind - ing forum-selection clause. See CPLR Section 5304 (b)(5). This ground reflects a strong policy favour - ing the enforcement of contractual forum-selection clauses. See Hook v Casa Sys ., Inc., No 654548/2019, 2021 N.Y. Misc. LEXIS 87810, at *7 (Sup. Ct. 15 Sep. 2021) (emphasising New York’s strong policy favour - ing forum-selection clauses). To determine the validity of a forum-selection clause, New York state courts generally apply New York law, and federal courts sit - ting in New York apply federal law. When it comes to the interpretation of forum-selection clauses, New York courts apply the law chosen by the parties in their contract. See, for example, Berkley Assur . Co . v MacDonald - Miller Facility Sols ., Inc., No 19-cv-7267, 2019 U.S. Dist. LEXIS 217761, at *11–12 (S.D.N.Y. 16 Dec. 2019); USA - India Export - Import , Inc . v Coca - Cola
Refreshments USA , Inc ., No 53047/2014, 2015 N.Y. Slip Op. 50091 (U), at *11 (Sup. Ct. 30 Jan. 2015). Serious inconvenience of the foreign forum Under Article 53, a court may also decline recogni - tion of a foreign judgment if the issuing court was a “seriously inconvenient” forum for the trial of the action. See CPLR Section 5304 (b)(6). This ground only applies in cases where personal jurisdiction was “based solely on personal service”. Id. It mirrors the domestic doctrine of forum non conveniens, and applies “when the forum court believes the original action should have been dismissed by the court in the foreign country on grounds of forum non conveniens”. 2005 Act Commentary, Section 4 CMT. 10. Doubt as to the integrity of the rendering court A court may refuse recognition if the foreign judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the specific judgment at issue. See CPLR Section 5304 (b)(7). This ground was introduced by the 2005 Act (and adopted by New York in 2021). It was added to the statute to address concerns about corruption and bias in the specific underlying pro - ceeding – as distinct from the systemic due process issues that courts consider under the mandatory “lack of impartial tribunals” ground. See Trejos Hermanos Sucesores S . A . v Verizon Commc ’ ns Inc ., No 1:21- cv-08928, 2024 U.S. Dist. LEXIS 7021, *38 (S.D.N.Y. 12 Jan. 2024) (analysing allegations regarding lack of integrity in underlying Costa Rican proceedings). Procedure for Seeking Recognition and Enforcement Initiating the recognition proceeding In New York, a judgment creditor typically seeks rec - ognition by filing an original action. In other words, the judgment creditor commences a new lawsuit seek - ing a declaration that the foreign judgment is entitled to recognition and requesting that the court enter a domestic judgment in the amount specified in the for - eign judgment. Article 53 also permits recognition to be raised as a counterclaim, cross-claim, or affirma - tive defence if an action to recognise the judgment is already pending. See CPLR Section 5303 (b), (c).
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