Brand, Coffee, & Herrup: The 2019 Hague Judgments Convention

Ronald A. Brand (Univ. of Pittsburgh - Law), Michael S. Coffee (U.S. Department of Justice), & Paul Herrup (U.S. Department of Justice) have published The 2019 Hague Judgments Convention (Oxford Univ. Press 2023). Here's the abstract:

Declared a 'game-changer' by the Hague Conference Secretary General, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has introduced international obligations of unprecedented sweep and power. Now, this authoritative treatise provides the diplomatic background and the historical context for the Convention, discussing the law on judgments recognition in the absence of the Convention's ratification. After recounting the twenty-seven-year history of the negotiations leading to the Convention's conclusion, it offers an article-by-article discussion of each provision. It also considers paths not taken, advancing possible solutions to address future pressures and developments.

Stamboulakis: Comparative Recognition and Enforcement: Foreign Judgments and Awards

Drossos Stamboulakis (Monash Univ.) has published Comparative Recognition and Enforcement: Foreign Judgments and Awards (Cambridge Univ. Press 2022). Here's the abstract:

This book provides the first detailed analysis of recognition and enforcement of foreign judgments and awards in civil and commercial matters from a transnational perspective. This perspective facilitates greater understanding of the present state of recognition and enforcement and offers insight into the establishment and operation of key modern instruments. This book represents a timely contribution, as instruments harmonising and promoting recognition and enforcement are increasingly being considered and implemented internationally. Many countries have recently reiterated their commitment to improving access to justice and have indicated an intention to sign one or both of the treaties designed to harmonise and promote recognition and enforcement of civil and commercial judgments internationally: the 2005 Choice of Court Convention or the 2019 Judgments Convention. This book is an essential resource for policymakers, scholars, and intergovernmental organisations to understand the nature and origin of recognition and enforcement approaches, as well as their application, interpretation, and future directions.

Huang: Enforcing Judgments in China: Comparing the Conference Minutes of the Supreme People’s Court with the Hague 2019 Judgments Convention

Jie (Jeanne) Huang (Univ. of Sydney - Law) has posted an ASIL Insight on Enforcing Judgments in China: Comparing the Conference Minutes of the Supreme People’s Court with the Hague 2019 Judgments Convention.

Baumgartner & Whytock: Enforcement of Judgments, Systematic Calibration, and the Global Law Market

Samuel P. Baumgartner (Univ. of Akron - Law) & Christopher A. Whytock (Univ. of California, Irvine, School of Law) have posted Enforcement of Judgments, Systematic Calibration, and the Global Law Market (Theoretical Inquiries in Law, Vol. 23, no. 1, 2022). Here's the abstract:

There are important reasons for states to recognize and enforce the judgments of other states’ courts. There are also reasons that may militate against recognition or enforcement of certain foreign judgments, making it appropriate to calibrate or “fine tune” the presumption favoring recognition and enforcement so it is not applied too broadly. Most calibration principles, such as the principle that a judgment from a court lacking jurisdiction should not be recognized, are case-specific. However, one calibration principle that is, to our knowledge, unique to the law of the United States stands out: the principle of systemic calibration, according to which U.S. courts must not recognize or enforce foreign judgments “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”

In this Article, we aim to shed empirical light on how U.S.-style systemic calibration operates in practice. We find that state-of-origin indicator scores related to systemic adequacy are on average higher when U.S. courts recognize or enforce foreign judgments than when they refuse to do so. Moreover, the probability of recognition and enforcement increases as these indicator scores increase. However, in only six of the 587 opinions in our dataset did a court refuse recognition or enforcement based explicitly on the systemic inadequacy ground. Thus, while the level of systemic calibration in U.S. courts is high, it is mostly achieved implicitly. Finally, even judgments from states with low systemic adequacy scores are sometimes recognized or enforced by U.S. courts. These findings lead us to question the need for the systemic inadequacy ground for refusal and conclude that the time is ripe for reconsidering it.

Queirolo et al.: Brussels I bis Regulation and Special Rules: Opportunities to Enhance Judicial Cooperation

I. Queirolo, R. Espinosa Calabuig, G.C. Giorgini, N. Dollani, C.E. Tuo, L. Carpaneto, & S. Dominelli have published Brussels I bis Regulation and Special Rules: Opportunities to Enhance Judicial Cooperation (Aracne 2021). The book is available in open access here. Related documents can be accessed here. Here's the abstract:

This volume critically and thoroughly addresses art. 67 Brussels I bis Regulation, which determines the relationships between the Regulation and other EU law instruments governing jurisdiction or the free movement of decisions. Also tackling “indirect” relevant relationships between international civil procedure and material law, the Volume rationalizes the main criticalities examined, and offers Principles, Recommendations and Guidelines to increase capacity of practitioners to address such issues, to improve awareness of stakeholders, and to support uniform application of EU law.

Special Issue: The 2019 Hague Judgments Convention

The latest issue of Nederlands Internationaal Privaatrecht (2020, no. 1) focuses on the 2019 Hague Judgments Convention. Contents include:

• Special Issue: The 2019 Hague Judgments Convention
• Paulien van der Grinten & Noura ten Kate, Editorial: The 2019 Hague Judgments Convention
• Catherine Kessedjian, Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?
• Hans van Loon, Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters
• Prejudiciële vragen in SHAPE/Supreme: over conservatoir beslag en immuniteit. HR 21 december 2018, ECLI:NL:HR:2018:2361 en HR 22 februari 2019, ECLI:NL:HR:2019:292, NIPR 2019, 64
• Michael Wilderspin & Lenka Vysoka, The 2019 Hague Judgments Convention through European lenses

Conference: 60 years BIICL, 50 years Brussels Regime, 60 years New York Convention

On November 29, 2018, the British Institute of International and Comparative Law will host a conference on "60 years BIICL, 50 years Brussels Regime, 60 years New York Convention." The program is here. Here's the idea:

Not only BIICL celebrates a round birthday, but also the two most important regimes for cross-border cooperation in civil and commercial litigation and arbitration - the Brussels Regime (1968), to which the UK acceded 40 years ago, and the NYC (1958). Time to take stock and assess the effects and benefits of both regimes for citizens, businesses, lawyers and courts, and time to look into the post Brexit future.

Navarro: A Comparative Analysis of International Enforcement Procedures in the Chevron Case

Gabriela Cristina Braga Navarro (Goethe Univ. Frankfurt) has posted A Comparative Analysis of International Enforcement Procedures in the Chevron Case. Here's the abstract:

This article analyses comparatively the enforcement procedures of the Ecuadorian judgment in the famous Chevron case, related to environmental damages caused by oil drilling in Ecuador. Enforcement of the judgment was proposed in several American countries, such as the United States, Canada, Argentina and Brazil. The central issue is how private international law can assure the enforcement of a foreign decision related to human rights against a multinational business conglomerate. Central arguments used in the enforcement decisions concerned the legal separateness of subsidiaries and the public order exception. Some procedures are still pending final decision. The methodology used in this article involves a bibliographical and documental review, mainly of legislation and court decisions.

Call for Papers: Private International Law and Intellectual Property: Jurisdiction, Choice of Law, and Recognition and Enforcement of Judgments/Arbitral Awards

The University of New South Wales Faculty of Law has issued a call for papers for a workshop on "Private International Law and Intellectual Property: Jurisdiction, Choice of Law, and Recognition and Enforcement of Judgments/Arbitral Awards," to take place August 18, 2018. The call is here.

Stephan: Foreign Court Judgments and the United States Legal System

Paul B. Stephan (Univ. of Virginia - Law) has published Foreign Court Judgments and the United States Legal System (Brill | Nijhoff 2014). Contents include:

• Paul B. Stephan, Introduction
• George Rutherglen & James Y. Stern, Sovereignty, Territoriality, and the Enforcement of Foreign Judgments
• Pamela K. Bookman, Once and Future U.S. Litigation
• William S. Dodge, The Penal and Revenue Rules, State Law, and Federal Preemption
• Paul B. Stephan, Unjust Legal Systems and the Enforcement of Foreign Judgments
• Linda Silberman, The Need for a Federal Statutory Approach to the Recognition and Enforcement of Foreign Country Judgments
• Keith Loken, The Current U.S. Judgments Agenda
• Peter D. Trooboff, Implementing Legislation for the Hague Choice of Court Convention
• David P. Stewart, Implementing the Hague Choice of Courts Convention: The Argument in Favor of ‘Cooperative Federalism’
• Kevin L. Cope, Reconceptualizing Recognition Uniformity
• Timothy J. McEvoy, Common Law Versus Statutory Approaches to Enforcing Foreign Judgments

Burbank: Whose Regulatory Interests? Outsourcing the Treaty Function

Stephen B. Burbank (Univ. of Pennsylvania - Law) has posted Whose Regulatory Interests? Outsourcing the Treaty Function (New York University Journal of International Law and Politics, forthcoming). Here's the abstract:

In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or state flag. A related question is whether, if the uniformity we seek is to be found in state rather than federal law, we can be, and be seen by other countries to be, serious about international cooperation. I describe in some detail the sequence of events that led to the Uniform Law Commissioners (“ULC”) becoming involved in the process of drafting legislation to implement the Choice of Court Convention. I also explore reasons why the ULC has been successful in securing the lion’s share of attention for its preferred approach to implementation, which the ULC calls “cooperative federalism,” but which has come to resemble cooperative redundancy. Recounting how, and offering suggestions why, the ULC ultimately rejected a package of compromises proposed by the State Department’s Legal Adviser, even though almost all compromises were in favor of the ULC, I conclude with observations about the ULC’s ambitions in the international arena. My argument is that, if the ULC were successful in taking over the negotiation or implementation of private international law treaties, international cooperation would be if not a fortuity, then not a priority, because we would have regressed to a position of privileging not just federal but state law uniformity over international uniformity. And the state law we privileged would be anything but “indigenous.”

Symposium: Enforcement of Foreign Judgments

Later today, March 13, 2012, the Berkeley Journal of International Law will host the 2012 Stefan A. Riesenfeld Symposium. The topic is: "Enforcement of Foreign Judgments." The program is here. Here's the idea:

The enforcement of foreign judgments is an increasingly problematic issue. Recognition of foreign private judgments occurs when the courts of one country recognize a judgment issued by the courts of another. Such recognition allows the successful party in one country to pursue relief in the other without the cost of having to re-litigate the issue in the new jurisdiction. This benefit is of great value to private parties involved in international business and litigation.

The 2012 Riesenfeld Symposium will focus on the enforcement of foreign judgments and will feature two panels, one concerning foreign judgments in the context of the internet and media, and another concerning the legal disputes over judgments issued buy Latin American courts.

Whytock & Robertson: Forum Non-Conveniens and the Enforcement of Foreign Judgments

Christopher A. Whytock (Univ. of California, Irvine - Law) & Cassandra Burke Robertson (Case Western Reserve Univ. - Law) have posted Forum Non-Conveniens and the Enforcement of Foreign Judgments (Columbia Law Review, forthcoming). Here's the abstract:

When citizens of Ecuador sued Texaco, Inc. in a U.S. court seeking damages for oil contamination in the Amazon, Texaco successfully moved to dismiss the suit in favor of Ecuador based on the forum non conveniens doctrine, arguing – as that doctrine requires – that Ecuador was an adequate alternative forum and more appropriate than the United States for hearing the suit. The plaintiffs then refiled the suit in Ecuador, and a court there entered a multi-billion dollar judgment against Chevron Corporation, which had merged with Texaco. Chevron now argues that the Ecuadorian legal system suffers from deficiencies that should render the judgment unenforceable.

Recently, other defendants have also been experiencing this type of “forum shopper’s remorse.” Having obtained what they wished for – a forum non-conveniens dismissal in favor of a foreign judiciary with a supposedly more pro-defendant legal environment than the United States – they are encountering unexpectedly pro-plaintiff outcomes, including substantial judgments against them. And, like Chevron, they are then arguing that the foreign judiciary suffers from inadequacies that should preclude enforcement of a judgment obtained there by the plaintiff – an argument seemingly at odds with the earlier forum non conveniens argument that the same foreign judiciary was adequate and more appropriate.

This Article shows that under current doctrine, these seemingly inconsistent arguments are not necessarily inconsistent at all. The forum non conveniens doctrine’s foreign judicial adequacy standard is lenient, plaintiff-focused and ex ante, whereas the judgment enforcement doctrine’s standard is relatively strict, defendant-focused, and ex post. Therefore, the same foreign judiciary may be adequate for a forum non conveniens dismissal, but inadequate for purposes of enforcing an ensuing foreign judgment. The result can be a transnational access-to-justice gap: A plaintiff may be denied both court access in the United States and a remedy based on a foreign court judgment. This Article argues that this gap should be closed, and it proposes doctrinal changes to accomplish this.

Silberman: Some Judgements on Judgments: A View from America

Linda Silberman (New York Univ. - Law) has published "Some Judgements on Judgments: A View from America" (King's Law Journal, Vol. 19, No. 2, 2008). Here's the abstract:

Professor Silberman's article "Some Judgements on Judgments" offers an overview of foreign judgment recognition and enforcement in the United States and in various other countries in the context of discussion of a 2006 proposal of the American Law Institute (for which she was Co-Reporter) to craft a national federal law for the United States on the recognition and enforcement of foreign judgments. Professor Silberman explains how the ALI project, entitled "Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute", was informed by adopting a comparative perspective. National solutions, such as those in Australia, Canada, England, Germany, Italy, and Japan were important guides for the project as were regional arrangements, such as the EU Regulation adopted for Member States of the European Union. The article surveys various national laws on such issues as (1) the types of judgments entitled to recognition/enforcement, (2) the fairness of procedures (3) the role of public policy (4) the jurisdictional basis for the initial judgment and (5) the issue of reciprocity. Professor Silberman views the ALI Project as offering a model for a national law that incorporates a transnational perspective - an approach necessary to fill a vacuum left by the absence of any world-wide convention on the recognition and enforcement of foreign country judgments. Professor Silberman first presented this material as the 2006 Graveson Memorial Lecture, delivered at King's College; the article has been updated through May 2008 to take account of subsequent developments.