Conflict of Laws University
of Mississippi
Supplementary materials Professor M.H.
Hoffheimer
Enforcement of Judgments
Hilton v. Guyot......................................................................................................page
1
Tahan v. Hodgson.........................................................................................................9
UFCMJRA.....................................................................................................................13
Hilton v. Guyot, 159 U.S. 113 (1895)
MR. JUSTICE GRAY, after stating the case, delivered
the opinion of the court.
These
two cases, the one at law and the other in equity, of Hilton
v. Guyot, and the case of Ritchie v. McMullen which has been under
advisement at the same time, present important questions relating to the force
and effect of foreign judgments, not hitherto adjudicated by this court, which
have been argued with great learning and ability, and which require for their
satisfactory determination a full consideration of the authorities. To avoid confusion in indicating the parties,
it will be convenient first to take the case at law of Hilton
v. Guyot.
International
law, in its widest and most comprehensive sense -- including not only questions
of right between nations, governed by what has been appropriately called the
law of nations; but also questions arising under what is usually called private
international law, or the conflict of laws, and concerning the rights of
persons within the territory and dominion of one
nation, by reason of acts, private or public, done
within the dominions of another nation -- is part of our law, and must be
ascertained and administered by the courts of justice, as often as such
questions are presented in litigation between man and man, duly submitted to
their determination.
The
most certain guide, no doubt, for the decision of such questions is a treaty or
a statute of this country. But when, as
is the case here, there is no written law upon the subject, the duty still
rests upon the judicial tribunals of ascertaining and declaring what the law
is, whenever it becomes necessary to do so, in order to determine the rights of
parties to suits regularly brought before them.
In doing this, the courts must obtain such aid as they can from judicial
decisions, from the works of jurists and commentators, and from the acts and
usages of civilized nations. [Citations omitted here and throughout.]
* * *
In
order to appreciate the weight of the various authorities cited at the bar, it
is important to distinguish different kinds of judgments. Every foreign judgment, of whatever nature,
in order to be entitled to any effect, must have been rendered by a court
having jurisdiction of the cause, and upon regular proceedings and due
notice. In alluding to different kinds
of judgments, therefore, such jurisdiction, proceedings and notice will be
assumed. It will also be assumed that they are untainted by fraud, the effect
of which will be considered later.
A
judgment in rem, adjudicating the title to a ship or other movable property
within the custody of the court, is treated as valid everywhere. As said by Chief Justice Marshall: "The
sentence of a competent court, proceeding in rem, is conclusive with respect to
the thing itself, and operates as an absolute change of the property. By such sentence, the right of the former
owner is lost, and a complete title given to the person who claims under the
decree. No court of coordinate jurisdiction can examine the sentence.
The
question, therefore, respecting its conformity to general or municipal law can
never arise, for no coordinate tribunal is capable of making the inquiry."
Williams v. Armroyd, 7 Cranch, 423, 432. The most common illustrations of this
are decrees of courts of admiralty and prize, which proceed upon principles of
international law. But the same rule
applies to judgments in rem under municipal law.
A
judgment affecting the status of persons, such as a decree confirming or dissolving
a marriage, is recognized as valid in every country, unless contrary to the
policy of its own law .
Other
judgments, not strictly in rem, under which a person has been compelled to pay
money, are so far conclusive that the justice of the payment cannot be
impeached in another country, so as to compel him to pay it again. For
instance, a judgment in foreign attachment is conclusive, as between the
parties, of the right to the property or money attached. Story on Conflict of Laws, (2d ed.) § 592 a.
And if, on the dissolution of a partnership, one partner
promises to indemnify the other against the debts of
the partnership, a judgment for such a debt, under which the latter has been
compelled to pay it, is conclusive evidence of the debt in a suit by him to
recover the amount upon the promise of indemnity. It was of such a judgment, and in such a
suit, that Lord Nottingham said: "Let the plaintiff receive back so much
of the money brought into court as may be adequate to the sum paid on the
sentence for custom, the justice whereof is not examinable here." Gold v.
Canham, (1689) 2 Swanston, 325; S.C. 1 Cas. in Ch. 311.
Other
foreign judgments which have been held conclusive of the matter adjudged were
judgments discharging obligations contracted in the foreign country between
citizens or residents thereof. Story's
Conflict of Laws, §§ 330-341; May v. Breed, 7 Cush. 15. Such was the case,
cited at the bar, of Burroughs or Burrows v. Jamineau or Jemino, Mosely, 1; S.C.
2 Stra. 733; 2 Eq. Cas. Ab. 525, pl. 7; 12 Vin. Ab. 87, pl. 9; Sel. Cas. in Ch.
69; 1 Dickens, 48.
* * *
The
extraterritorial effect of judgments in personam, at law or in equity, may
differ, according to the parties to the cause.
A judgment of that kind between two citizens or residents of the
country, and thereby subject to the jurisdiction, in which it is rendered, may
be held conclusive as between them everywhere.
So, if a foreigner invokes the jurisdiction by bringing an action
against a citizen, both may be held bound by a judgment in favor of
either. And if a citizen sues a
foreigner, and judgment is rendered in favor of the latter, both may be held
equally bound.
The
effect to which a judgment, purely executory, rendered in favor of a citizen or
resident of the country, in a suit there brought by him against a foreigner,
may be entitled in an action thereon against the latter in his own country --
as is the case now before us -- presents a more difficult question, upon which
there has been some diversity of opinion.
* * *
The law
upon this subject, as understood in the United States, at the time of their
separation from the mother country, was clearly set forth by Chief Justice
Parsons, speaking for the Supreme Judicial Court, of Massachusetts, in 1813,
and by Mr. Justice Story, in his Commentaries on the Constitution of the United
States, published in 1833. Both those
eminent jurists declared that by the law of England the general rule was that
foreign judgments were only
prima facie evidence of the matter which they
purported to decide; and that by the common law, before the American
Revolution, all the courts of the several Colonies and States were deemed
foreign to each other, and consequently judgments rendered by any one of them
were considered as foreign judgments, and their merits reexaminable in another
Colony, not only as to the jurisdiction of the court which pronounced them, but
also as to the merits of the controversy,
to the extent to which they were understood to be
reexaminable in England.And they noted that, in order to remove that
inconvenience, statutes had been passed in Massachusetts, and in some of the
other Colonies, by which judgments rendered by a court of competent
jurisdiction in a neighboring Colony could not be impeached. Bissell v. Briggs,
9 Mass. 462, 464, 465; Mass. Stat. 1773-4, c. 16, 5 Prov. Laws, 323, 369; Story
on the Constitution, (1st ed.) §§ 1301, 1302; (4th ed.) §§ 1306,
1307.
It was
because of that condition of the law, as between the American Colonies and
States, that the United States, at the very beginning of their existence as a
nation, ordained that full faith and credit should be given to the judgments of
one of the States of the Union in the courts of another of those States.
* * *
The
decisions of this court have clearly recognized that judgments of a foreign
state are prima facie evidence only, and that, but for those constitutional and
legislative provisions, judgments of a State of the Union, when sued upon in
another State, would have no greater effect.
* * *
But
neither in those cases, nor in any other, has this court hitherto been called
upon to determine how far foreign judgments may be reexamined upon their
merits, or be impeached for fraud in obtaining them.
In the
courts of the several States, it was long recognized and assumed, as undoubted
and indisputable, that by our law, as by the law of England, foreign judgments
for debts were not conclusive, but only prima facie evidence of the matter
adjudged. . .
* * *
From
this review of the authorities, it clearly appears that, at the time of the
separation of this country from England, the general rule was fully established
that foreign judgments in personam were prima facie evidence only, and not
conclusive of the merits of the controversy between the parties. But the extent and limits of the application
of that rule do not appear to have been much discussed, or defined with any
approach to exactness, in England or
America, until the matter was taken up by Chancellor Kent and by Mr. Justice
Story.
* * *
Mr.
Justice Story and Chancellor Kent, as appears by the passages above, quoted
from their commentaries, concurred in the opinion that, in a suit upon a
foreign judgment, the whole merits of the case could not, as matter of course,
be reexamined anew; but that the defendant was at liberty to impeach the
judgment, not only by showing that the court had no jurisdiction of the case,
or of the defendant, but also by showing that it was procured by fraud, or was
founded on clear mistake or irregularity, or was bad by the law of the place
where it was rendered. Story's Conflict
of Laws, §§ 607; 2 Kent Com. (6th ed.) 120.
The
word "mistake" was evidently used by Story and Kent, in this
connection, not in its wider meaning of error in judgment, whether upon the law
or upon the facts; but in the stricter sense of misapprehension or oversight,
and as equivalent to what, in Burnham v. Webster, before cited, Mr. Justice
Woodbury spoke of as "some objection to the judgment's reaching the
merits, and tending to prove that they had not been acted on;" "some
accident or mistake," or "that the court did not decide at all on the
merits." 1 Woodb. & Min. 180.
The
suggestion that a foreign judgment might be impeached for error in law of the
country in which it was rendered is hardly consistent with the statement of
Chief Justice Marshall, when, speaking of the disposition of this court to
adopt the construction given to the laws of a State by its own courts, he said:
"This course is founded on the principle, supposed to be universally recognized,
that the judicial department of every government, where such department exists,
is the appropriate organ for construing the legislative acts of that
government.
Thus,
no court in the universe, which professed to be governed by principle, would,
we presume, undertake to say, that the courts of Great Britain, or of France,
or of any other nation, had misunderstood their own statutes, and therefore
erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the
courts of the nation as the true sense of the law, and feel ourselves no more
at liberty to depart from that construction, than to depart from the words of
the statute." Elmendorfv. Taylor, (1825) 10 Wheat. 152, 159, 160.
In recent times, foreign judgments
rendered within the dominions of the
English Crown, and under the law of England, after a trial on the merits, and
no want of jurisdiction, and no fraud or mistake, being shown or offered to be
shown, have been treated as conclusive by the highest courts of New York, Maine
and Illinois. In two early cases in
Ohio, it was said that foreign judgments were conclusive, unless shown to have
been obtained by fraud. But in a later case in that State it was said that they
were only prima facie evidence of indebtedness.
Pelton v. Platner, (1844) 13 Ohio, 209, 217. In Jones v. Jamison, (1860)
15 La. Ann. 35, the decision was only that, by virtue of the statutes of
Louisiana, a foreign judgment merged the original cause of action as against
the plaintiff.
The
result of the modern decisions in England, after much diversity, not to
say vacillation of opinion, does not greatly differ
(so far as concerns the aspects in which the English courts have been called
upon to consider the subject) from the conclusions of Chancellor Kent and of
Justices Story and Woodbury.
* * *
In
view of all the authorities upon the subject, and of the trend of judicial
opinion in this country and in England, following the lead of Kent and Story,
we are satisfied that, where there has
been opportunity for a full and fair trial abroad before a court of competent
jurisdiction, conducting the trial upon regular proceedings, after due citation
or voluntary appearance of the defendant, and under a system of jurisprudence
likely to secure an impartial administration of justice between the citizens of
its own country and those of other countries, and there is nothing to show
either prejudice in the court, or in the system of laws under which it was
sitting, or fraud in procuring the judgment, or any other special reason why
the comity of this nation should not allow it full effect, the merits of the
case should not, in an action brought in this country upon the judgment, be
tried afresh, as on a new trial or an appeal, upon the mere assertion of the
party that the judgment was erroneous in law or in fact. The defendants, therefore, cannot be
permitted, upon that general ground, to contest the validity or the effect of
the judgment sued on.
But
they have sought to impeach that judgment upon several other grounds, which
require separate consideration.
It
is objected that the appearance and litigation of the defendants in the French
tribunals were not voluntary, but by legal compulsion, and therefore that the
French courts never acquired such jurisdiction over the defendants, that they
should be held bound by the judgment.
* * *
But
it is now settled in England that, while
an appearance by the defendant in a court of a foreign country, for the purpose
of protecting his property already in the possession of that court, may not be
deemed a voluntary appearance, yet an appearance solely for the purpose of
protecting other property in that country from seizure is considered as a
voluntary appearance.
* * *
It
is next objected that in those courts one of the plaintiffs was permitted to
testify not under oath, and was not subjected to cross-examination by the
opposite party, and that the defendants were, therefore, deprived of safeguards
which are by our law considered essential to secure honesty and to detect fraud
in a witness; and also that documents and papers were admitted in evidence,
with which the defendants had no connection, and which would not be admissible
under our own system of jurisprudence.
But it having been shown by the plaintiffs, and hardly denied by the
defendants, that the practice followed and the method of examining witnesses
were according to the laws of France, we are not prepared to hold that the fact
that the procedure in these respects differed from that of our own courts is,
of itself, a sufficient ground for impeaching the foreign judgment.
* * *
When
an action is brought in a court of this country, by a citizen of a foreign
country against one of our own citizens, to recover a sum of money adjudged by
a court of that country to be due from the defendant to the plaintiff, and the
foreign judgment appears to have been rendered by a competent court, having
jurisdiction of the cause and of the parties, and upon due allegations and
proofs, and opportunity to defend against them, and its proceedings are
according to the course of a civilized jurisprudence, and are stated in a clear
and formal record, the judgment is prima facie evidence, at least, of the truth
of the matter adjudged; and it should be held conclusive upon the merits tried
in the foreign court, unless some special ground is shown for impeaching the
judgment, as by showing that it was affected by fraud or prejudice, or that, by
the principles of international law, and by the comity of our own country, it
should not be given full credit and effect.
There is no doubt that both in this country,
as appears by the authorities already cited, and in England, a foreign judgment
may be impeached for fraud.
* * *
In
the case at bar, the defendants offered to prove, in much detail, that the
plaintiffs presented to the French court of first instance and to the
arbitrator appointed by that court, and upon whose report its judgment was
largely based, false and fraudulent statements and accounts against the
defendants, by which the arbitrator and
the French courts were deceived and misled, and their judgments were based upon
such false and fraudulent statements and accounts. This offer, if
satisfactorily proved, would, according to the decisions of the English Court
of Appeal in Abouloff v. Oppenheimer, Vadala v. Lawes, and Crozat v. Brogden,
above cited, be a sufficient ground for impeaching the foreign judgment, and
examining into the merits of the original claim.
But
whether those decisions can be followed in regard to foreign judgments,
consistently with our own decisions as to impeaching domestic judgments for
fraud, it is unnecessary in this case to determine, because there is a distinct
and independent ground upon which we are satisfied that the comity of our nation
does not require us to give conclusive effect to the judgments of the courts of
France; and that ground is, the want of reciprocity, on the part of France, as
to the effect to be given to the judgments of this and other foreign countries.
In
France, the Royal Ordinance of June 15, 1629, art. 121, provided as follows:
"Judgments rendered, contracts or obligations recognized, in foreign
kingdoms and sovereignties, for any
cause whatever, shall have no lien or execution in our kingdom. Thus the contracts shall stand for simple
promises; and, notwithstanding the judgments, our subjects against whom they
have been rendered may contest their rights anew before our judges."
Touillier, Droit Civil, lib. 3, tit. 3, c. 6, sect. 3, no. 77.
By
the French Code of Civil Procedure, art. 546, "Judgments rendered by
foreign tribunals, and acts acknowledged before foreign officers, shall not be
capable of execution in France, except in the manner and in the cases provided
by articles 2123 and 2128 of the Civil Code," which are as follows: By
article 2123, "A lien cannot arise from judgments rendered in a foreign
country, except so far as they have been declared executory by a French
tribunal; without
prejudice to provisions to the
contrary which may exist in public laws and treaties." By article 2128,
"Contracts entered into in a foreign country cannot give a lien upon
property in France, if there are no provisions contrary to this principle in
public laws or in treaties." Touillier, ub. sup. no. 84.
* * *
It
appears, therefore, that there is hardly a civilized nation on either
continent, which, by its general law, allows conclusive effect to an executory
foreign judgment for the recovery of money.
In France, and in a few smaller States -- Norway, Portugal, Greece,
Monaco, and Hayti -- the merits of the controversy are reviewed, as of course,
allowing to the foreign judgment, at the
most, no more effect than of being
prima facie evidence of the justice of the claim. In the great majority of the countries on the
continent of Europe -- in Belgium, Halland, Denmark, Sweden, Germany, in many
cantons of Switzerland, in Russia and Poland, in Roumania, in Austria and
Hungary, (perhaps in Italy,) and in Spain -- as well as in Egypt, in Mexico,
and in a great part of South America, the judgment rendered in a foreign
country is allowed the same effect only as the courts of that country allow to
the judgments of the country in which the judgment in question is sought to be
executed.
The
prediction of Mr. Justice Story (in § 618 of his Commentaries on the Conflict
of Laws, already cited,) has thus been fulfilled, and the rule of reciprocity
has worked itself firmly into the structure of international jurisprudence.
The
reasonable, if not the necessary, conclusion appears to us to be that judgments
rendered in France, or in any other foreign country, by the laws of which our
own judgments are reviewable upon the merits, are not entitled to full credit
and conclusive effect when sued upon in this country, but are prima facie
evidence only of the justice of the plaintiffs' claim.
In
holding such a judgment, for want of reciprocity, not to be conclusive evidence
of the merits of the claim, we do not proceed upon any theory of retaliation
upon one person by reason of injustice done to another; but upon the broad
ground that international law is founded upon mutuality and reciprocity, and
that by the principles of international law recognized in most
civilized nations, and by the comity
of our own country, which it is our judicial duty to know and to declare, the
judgment is not entitled to be considered conclusive.
* * *
If
we should hold this judgment to be conclusive, we should allow it an effect to
which, supposing the defendants' offers to be sustained by actual proof, it
would, in the absence of a special treaty, be entitled in hardly any other
country in Christendom, except the country in which it was rendered. If the judgment had been rendered in this
country, or in any other outside of the jurisdiction of France, the French
courts would not have executed or enforced it, except after examining into its
merits. The very judgment now sued on
would be held inconclusive in almost any other country than France. In England, and in the Colonies subject to
the law of England, the fraud alleged in its procurement would be a sufficient
ground for disregarding it. In the
courts of nearly every other nation, it would be subject to reexamination,
either merely because it was a foreign judgment, or because judgments of that
nation would be reexaminable in the courts of France.
DISSENT: MR. CHIEF JUSTICE FULLER,
with whom concurred MR. JUSTICE HARLAN, MR. JUSTICE BREWER, and MR. JUSTICE
JACKSON, dissenting.
The
question is whether under these circumstances, and in the absence of a treaty
or act of Congress, the judgment is reexaminable upon the merits. This question I regard as one to be
determined by the ordinary and settled rule in respect of allowing a party, who
has had an opportunity to prove his case in a competent court, to retry it on
the merits, and it seems to me that the doctrine of res judicata applicable to
domestic judgments should be applied to foreign judgments as well, and rests on
the same general ground of public policy that there should be an end of
litigation.
This
application of the doctrine is in accordance with our own jurisprudence, and it
is not necessary that we should hold it to be required by some rule of
international law.
Tahan v. Hodgson, 662 F.2d 862 (D.C.
Cir. 1981)
Wilkey, Circuit Judge:
Plaintiff
brings this action for enforcement of a default judgment entered against
defendant by an Israeli court. The
matter is before this court on cross motion for summary judgment, with the
diversity jurisdiction of this court invoked.
The district court found for the defendant; we reverse and remand for
the district court to enforce the judgment.
I. FACTUAL BACKGROUND
The
essential facts in this case are straightforward and uncontroverted. Plaintiff Chamis Tahan operates a travel
agency in Jerusalem which acted as agent for the travel agency of defendant Sir
John G. Hodgson until a dispute arose and the relationship ended. Plaintiff claimed that defendant owed him a
sum of money for past services, but defendant denied the debt. Mediation failed and plaintiff filed suit in
Israel. Plaintiff's attorney served
defendant personally in Jerusalem, but defendant refused to acknowledge service
on the grounds that the papers were drawn in Hebrew, a language he did not
read. Plaintiff's attorney later left
the complaint with defendant, who subsequently returned the papers to the
attorney's office, stating that he would submit the matter to his attorney and
defend the claims once he had received a complete translation and documentation
in English." n1 Plaintiff then obtained
default judgment against defendant in the amount of $ 54,114.40 plus
legal fees in the amount of $ 3,870.00.
It is this default judgment in Israel which plaintiff now seeks to have
enforced by the courts of the United States.
II. LEGAL ISSUES
The seminal case in the area of enforcement of
foreign judgments is Hilton v. Guyot.
* * *
Thus,
requirements for enforcement of a foreign judgment expressed in Hilton are that
there be "due citation" and that the original claim not violate
American public policy, n4 that is, in the language of the Restatement (Second)
Conflict of Laws, that it not be "repugnant to fundamental notions of what
is decent and just in the State where enforcement is sought." Hilton also established the principle of
"reciprocity," which requires a judgment rendered in a foreign nation
to be subjected by the federal courts in this country to a reexamination on the
merits if an American judgment would be given similar treatment in the foreign
nation involved [footnotes omitted here and throughout].
It
is not alleged that the Israeli court lacked competent jurisdiction, nor is the
general integrity of the Israeli judicial system questioned, nor is it alleged
that the judgment rendered in this case was fraudulent. Therefore, the legal issues raised in this
case reduce to three. First, was there
"due citation" of defendant?
That is, was there effective service of process? Second, would enforcement of this default
judgment be "repugnant to fundamental otions of what is decent and
just" in the United States? And,
third, what pplicability does the doctrine of reciprocity have to this case?
We
shall consider each of these issues in turn.
A. Effective Service of Process
In
a default judgment, it is essential that there have been effective service of
process. That requirement seems clearly to have been met here. While the
effectiveness of some forms of process is debatable, personal service is almost
always acceptable.
Even
if Defendant were unable to read Hebrew,
he should have surmised that the papers being served upon him were legal in
nature, and that he could ignore them only at his peril. . . .
He
showed bad judgment in not putting the matter in the hands of an Israeli
lawyer. It would be insulting were we to
require that the Israeli legal machinery adapt itself by translating the
official language of that country, Hebrew, into any defendant's language.
B. Public Policy
The
district court's memorandum opinion found for the defendant in the case at hand
because, it reasoned, enforcement of the Israeli default judgment would violate
American public policy in two ways.
First, it would be inconsistent with Rule 55(b)(2) of the Federal Rules
of Civil Procedure, which provides that under certain circumstances a so-called
"second" notice must be given at least three days prior to hearing
and application for entry of default.
Second, insofar as the Israeli judgment was entered against defendant
personally rather than upon defendant's corporation, it would violate American public
policy against piercing the corporate veil in the absence of "compelling
justification." n16 While these arguments are by no means unreasonable, we
believe that plaintiff should prevail here in the enforcement of the Israeli
judgment. We believe that for the
reasons outlined below, American public policy will not be violated by
enforcement of the Israeli judgment.[1]
With
respect to the fact that Israeli procedure was inconsistent with Rule 55(b)(2)
of the Federal Rules of Civil Procedure, we think that it would be a mistake to
find failure to follow the Federal Rules by a foreign nation to be ipso facto a
violation of American public policy. It would be unrealistic for the United
States to require all foreign judicial systems to adhere to the Federal Rules
of Civil Procedure. Obviously, all foreign judgments will be inconsistent to
some extent with the Federal Rules; many state court judgments are, for that
matter. Surely a more important
discrepancy than this is necessary to create a violation of public policy. We
do not find the Israeli court's failure to provide second notice three days
prior to hearing an application for entry of default to be so "repugnant
to fundamental notions of what is decent and just" that American public
policy requires non-enforcement of the subsequent judgment.[2]
With
respect to the argument that enforcement of this judgment would violate the
American policy against holding corporate officers personally liable for
corporate debts, it should be pointed out that Israel also has a policy against
lightly piercing the corporate veil. Defendant's arguments against holding him,
rather than his corporation, liable could have and should have been made in
Israel. He cannot fail to contest the
Israeli plaintiff and then declare that he would have won. Our examination of the record, moreover,
convinces us that the Israeli court's decision to pierce the corporate veil is
not "repugnant" under the facts of this case, particularly when it is
borne in mind that defendant did not present a case at all.
C. The Reciprocity Requirement
It
is unlikely that reciprocity is any longer a federally mandated requirement for
enforcement of foreign judgments[3] or that the District of Columbia
itself has such a requirement that this court is obliged to follow.
The
logical rule would seem to be that, in the absence of an action by the
legislature, the courts should refrain from creating or resurrecting a
reciprocity doctrine. The issue of how
best to respond to a foreign nation's scrutinization [sic] of an
American judgment is, after all, a political one. Moreover, notwithstanding Erie Railroad Co.
v. Tompkins, the issue seems to be national rather than state.
Even
assuming that reciprocity is required by either the federal government or the
District of Columbia, we would still enforce the Israeli judgment since Israel
in all probability would enforce a similar American judgment and thus meets the
reciprocity criterion.
III. CONCLUSION
As
commerce becomes increasingly international in character, it is essential that
businessmen recognize and respect the laws of those foreign nations in which
they do business. They cannot expect
foreign tribunals to have one set of laws for their own citizens and another,
more favorable, set for the citizens of other countries. It is also essential that American courts
recognize and respect the judgments entered by foreign courts to the greatest
extent consistent with our own ideals of justice and fair play. Unfettered trade, good will among nations,
and a vigorous and stable international-and national-economy demand no less.
We
find enforcement of the Israeli judgment to be required by these goals and
American precedent. The judgment of the
district court is accordingly Reversed and Remanded.
Uniform Foreign Country Money
Judgment Recognition Act
HATFIELD v. MARSHALL, 682 S.W.2d 340
( Tex. App. 1984):
* * *
[W]e must first look to section 5 of
the Recognition Act to determine whether a foreign country judgment may be
recognized under section 4. Section 5
[Uniform Foreign Country Money Judgment Recognition Act section 4], entitled
"grounds for nonrecognition," provides:
Sec. 5. (a) A foreign country
judgment is not conclusive if:
(1) the judgment was rendered under a system
which does not provide impartial tribunals or procedures compatible with the
requirements of due process of law;
(2) the foreign country court did not have
personal jurisdiction over the defendant; or
(3) the foreign country court did not have
jurisdiction over the subject matter.
(b) A foreign country judgment need not be recognized if:
(1) the defendant in the proceedings in the
foreign country court did not receive notice of the proceedings in sufficient
time to enable him to defend;
(2) the judgment was obtained by fraud;
(3) the cause of action on which the judgment
is based is repugnant to the public policy of this state;
(4) the judgment conflicts with another final
and conclusive judgment;
(5) the proceeding in the foreign country
court was contrary to an agreement between the parties under which the dispute
in question was to be settled otherwise than by proceedings in that court; [or]
(6) in the case of jurisdiction based only on
personal service, the foreign country court was a seriously inconvenient forum
for the trial of the action[.]
[Texas like some other states adds a
reciprocity requirement not included in the Uniform statute]:
or
(7) it is established that the foreign country in which the judgment was
rendered does not recognize judgments rendered in this state that, but for the
fact that they are rendered in Texas, conform to the definition of
"foreign country judgment" in Section 2(2) of this Act.
[1] [Footnote 17]: Note that while the public policy doctrine is not moribund,
it is in fact rarely relied upon. See
von Mehren & Trautman, Recognition of Foreign Adjudications: A Survey and a
Suggested Approach, 81 Harv.L.Rev. 1601, 1670 (1968); Paulsen & Sovern,
"Public Policy" in the Conflict of Laws, 56 Colum.L.Rev. 969, 980,
981, 1015, 1016 (1956). Only in
clear-cut cases ought it to avail defendant.
[2] [Footnote 18]: Hilton itself stands for the proposition that American
courts have been signally reluctant to deny recognition to foreign judgments by
virtue of mere difference of procedure (one plaintiff was permitted to testify
without oath and without cross-examination).
Other authority is collected in A. Ehrenzweig, A Treatise on the
Conflict of Laws § 55 (1962); Reese, The Status in This Country of Judgments Rendered
Abroad, 50 Colum.L.Rev. 783, 795 n.65 (1950), including Newton v. Hunt, 59
Misc. 633, 112 N.Y.S. 573 (Sup.Ct.1908), modified on other grounds, 134 A.D.
325, 119 N.Y.S. 3 (1909), aff'd, 201 N.Y. 599, 95 N.E. 1134 (1911) (foreign
court resorted to rule of presumptive evidence not available in
forum of
enforcement); Matter of Rutherfurd, 182 Misc. 1019, 46 N.Y.S.2d 871
(Sur.Ct.1944) (under French law, in a suit of debt the plaintiff may request
the defendant to take a "decisive oath," and whether or not the oath
is taken determines the case. Defendant
took the oath at plaintiff's request and the judgment was held conclusive as
against plaintiff's attack); Dunstan v. Higgins, 138 N.Y. 70, 75, 33 N.E. 729,
730 (1893) (to the effect that if the procedure is non-discriminatory and that
usually afforded citizens of the foreign country, it is not subject to attack).
. . .
[3] [Footnote 21]: The reciprocity
doctrine has been widely criticized and seldom invoked [citations
omitted]. It has been pointed out that
even in Hilton the doctrine was unnecessary to reach the holding and was thus
mere "magnificent dictum." Johnston v. Compagnie Generale
Transatlantique, 242 N.Y. 381, 388, 152 N.E. 121, 123 (1926). See also H. Goodrich & E. Scoles,
Conflict of Laws 208 (1964).
Moreover, the federal courts may now
be required by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.
Ed. 1188 (1938), to apply the rule of the state in which they sit as to the
measure of respect that should be accorded the judgment of a foreign nation.
See Restatement (Second) Conflict of Laws § 98, Comment e (1971). It is certainly true that some state courts,
notably those of New York, have expressly rejected the Hilton requirement of
reciprocity and extended recognition to judgments of foreign nations without
regard to any question of reciprocity. [Citations omitted.] [T]he Uniform
Foreign Money Judgments Recognition Act, 13 U.L.Ann. 417 (Master ed. 1980),
[was] approved in 1962 by the National Conference of Commissioners on Uniform
State Laws and adopted by eleven states.
New Hampshire has passed a statute requiring reciprocity with respect to
Canadian judgments (N.H.Rev.Stat.Ann. § 524:11 (Equity Supp. 1974-75)).