Document Type


Publication Date

January 2013


Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to adopt federal legislation on the question of recognizing and enforcing foreign judgments in the United States. And at the Hague Conference of Private International Law, the project – begun in the 1990s and later shelved – to enter into a world-wide convention on the recognition of foreign judgments, has just been put on the agenda for further study.

In this Article, I focus on the major obstacles U.S. judgment holders have encountered abroad as a matter of foreign recognition doctrine and to analyze the reasons underlying those obstacles. This should help lawmakers and treaty negotiators better understand what sorts of problems U.S. judgments holders are likely to encounter and why. I propose that we distinguish those obstacles on the basis both of the purpose they are meant to serve and of the way in which they have developed. Thus, I submit that the doctrinal obstacles identified pursue three distinct purposes: the protection of the sovereignty of the recognition state; the protection of other public interests of the recognition state; and the protection of the party against whom the U.S. judgment is to be used from what the recognition state views as substandard legal norms or procedural treatment. I further suggest that we separate the doctrinal obstacles encountered by U.S. judgments holders abroad into two categories on the basis of how they have developed. The first category consists of doctrines that were set in place some time ago and that apply to all judgments from jurisdictions with which the relevant country does not have a recognition treaty, including the United States. The second category consists of slight changes to existing recognition doctrine that some foreign jurisdictions have adopted specifically in reaction to litigation in the United States. This second category has come about, I argue, through the operation of four factors: power politics, domestic legal and procedural culture, the preferences of groups and individuals inside and outside the state apparatus, and relevant information asymmetries.

Publication Title

N.Y.U. Journal Int'l L. & Pol.