Conflict of Laws University of Mississippi
Supplementary materials Professor M.H. Hoffheimer
Enforcement of Judgments
Hilton v. Guyot......................................................................................................page 1
Tahan v. Hodgson.........................................................................................................9
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.]
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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.
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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.
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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.
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.
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 or that the
District of Columbia itself has such a requirement that this court is obliged to
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 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.
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
(3) the foreign country court did not have jurisdiction over the
(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
(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.
 [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.
 [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). . . .
 [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)).