Lawyers Journal

Finally a treaty for the enforcement of U.S. Court judgments abroad

Fitch is the managing partner of Sally & Fitch LLP in Boston. He is the author of  "The Enforcement of Foreign Money Judgments in Massachusetts," 81 MASS. LAW REVIEW 65 (1996). Hill is a member of the Class of 2013 of Boston College Law School and was a Summer Associate at Sally & Fitch LLP in 2012. She is a graduate of Duke University.

The litigation of international commercial disputes in U.S. courts is often disfavored for the simple reason that U.S. judgments are notoriously difficult to enforce in foreign countries.1 International arbitration is the preferred alternative to litigation because the United States, along with 145 other countries, is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (commonly referred to as the New York Convention), a treaty that provides for the recognition and enforcement of international arbitral awards.2 Within the next year, the United States is expected to begin implementing a new treaty that will eliminate major obstacles to the recognition and enforcement of certain civil judgments in foreign courts. The implementation of the treaty will give parties to international commercial agreements more flexibility in choosing their preferred method of dispute resolution.

THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS

In 2009, the United States signed the Hague Convention on Choice of Court Agreements, a treaty that establishes rules for the enforcement of judgments among the countries party to the convention.3 The convention is the first international agreement the U.S. has entered concerning the reciprocal enforcement of judgments.

The convention applies to cases in which the parties have entered an agreement designating the court(s) of one country as the exclusive forum to hear their disputes.4 The convention sets forth three fundamental rules: 1) the court chosen by the parties shall hear their case; 2) any court not chosen by the parties must decline to hear the case; and 3) the courts of other countries must recognize and enforce a judgment rendered by the parties' chosen court.5 The convention applies to "international" civil cases, meaning cases in which the parties or other elements of the dispute have a connection to more than one country.6 However, a number of civil matters, including consumer transactions, certain tort actions, employment disputes, family law matters, and intellectual property disputes, are excluded from its scope, regardless of whether they are "international" in nature.7

The convention aims to remove barriers to international trade by effectuating parties' choice of court agreements. Parties to international transactions can agree on a forum for dispute resolution and have certainty that actions brought in other courts will be dismissed. Moreover, parties can have confidence that a judgment rendered by the chosen court will be enforced in signatory countries where a defendant may have assets.

Both the U.S. and the European Union have signed the convention and are expected to implement it within the next year.8 Argentina, Australia, Canada, Costa Rica and New Zealand are also working toward ratification of the treaty.9 Mexico is the only country that has officially acceded to the treaty.10 Ideally, the U.S. and E.U. accession to the treaty will encourage even more of the U.S.'s trading partners to agree to it. It remains to be seen whether the convention will receive the nearly universal embrace of the New York Convention.

BENEFITS OF THE CONVENTION

Courts within the United States already liberally enforce foreign judgments. However, judgments rendered here frequently do not receive the same favorable treatment abroad.11 For example, in many European countries, courts will regularly refuse to enforce U.S. judgments citing lack of jurisdiction, an award of excessive damages, or a violation of the country's public policy.12 Thus, the main benefit of the convention is that it will increase the enforcement of U.S. judgments abroad. The convention creates a presumption that foreign courts will enforce judgments rendered by the parties' chosen court. Further, a court may only refuse to recognize a judgment on the bases listed in the convention, eliminating some uncertainty where laws vary from country to country and state to state.13 The convention thus adds a great deal of predictability and certainty to the process of judgment enforcement.

The convention was modeled in large part on the New York Convention. Actions to enforce international arbitral awards under that convention have had a high rate of success.14 Consequently, a large majority of international commercial agreements contain mandatory arbitration clauses.15 The implementation of the convention will make litigation a viable alternative to arbitration for dispute resolution in international transactions. There are many reasons why parties may prefer litigation for the resolution of particular kinds of potential disputes. Parties who draft agreements that provide for the resolution of disputes in courts shall now have confidence that the judgment of their chosen court will be enforceable in other signatory nations.

EFFECT ON MASSACHUSETTS LAW

The Uniform Foreign Money Judgments Recognition Act - M.G.L. c.235 §23A, (the UFMJRA), currently governs the recognition and enforcement of money judgments of foreign courts in Massachusetts. Thirty-two other states have adopted some version of the uniform recognition act.16 The UFMJRA establishes that courts will recognize foreign money judgments unless the party objecting to the recognition of the judgment can prove one of the defenses provided by the statute.17 The convention, when implemented, will preempt the UFMJRA. However, the UFMJRA will continue to apply in cases where the parties do not have a forum selection agreement or the subject matter of the case does not fall within the scope of the convention.

The convention and the UFMJRA provide similar defenses to enforcement of a foreign judgment. Both allow a court to refuse to recognize a foreign judgment if: 1) the defendant did not receive sufficient notice to enable him to defend; 2) the judgment was obtained by fraud; 3) enforcing the judgment would violate public policy; or 4) the judgment conflicts with another judgment.18 Under the UFMJRA, courts have interpreted these defenses narrowly, upholding foreign judgments unless a party's basic rights were violated.19 The same results should occur in enforcement actions brought under the convention.

Under the UFMJRA, a party may also object to the recognition of the foreign judgment on the basis of lack of jurisdiction or lack of due process.20 The jurisdiction of the foreign court is the most frequently litigated issue in enforcement actions. Conversely, in an action under the convention, a party cannot object to the foreign court's jurisdiction or failure to provide due process. Because the parties agreed that the foreign court would be the forum for the resolution of any disputes, they may not later object to its jurisdiction or procedures. However, the convention does allow the party to object that the choice of court agreement is null and void or that the party lacked capacity to enter it.21 In actions under the New York Convention, which provides similar defenses to the enforcement of arbitral awards, U.S. courts have almost always held arbitration clauses valid.22 The same result is likely for choice of court agreements governed by the convention.

Overall, the convention comports with the existing law on the enforcement of foreign judgments and arbitral awards. Therefore, courts are likely to liberally enforce foreign judgments in actions under the convention, as they have under the UFMJRA and the New York Convention. A high enforcement rate will ensure that the convention succeeds in making litigation in a designated forum a viable option for parties to international transactions.

IMPLEMENTATION OF THE CONVENTION

The implementation of the convention will occur through a combination of federal and state legislation. A new federal statute will govern actions brought in federal court and in state court actions where states have not enacted their own legislation. The federal statute does not establish federal question jurisdiction over actions brought under the convention, so federal jurisdiction will lie only where there is diversity of citizenship. The State Department has indicated its intent to propose the federal statute in Congress by January 2013.

The states can enact their own laws implementing the convention. The states may not vary the substance of the convention or the federal statute but may establish their own procedures for enforcement actions. The Uniform Law Commission has drafted a uniform state statute that harmonizes the provisions of the convention with the existing uniform state law on recognition and enforcement of foreign judgments.23 The uniform state law will be finalized and sent to the Massachusetts legislature before the next legislative session begins, in January 2013.

The Massachusetts Legislature, if it enacts the state law, must decide whether to open the Massachusetts courts to disputes that have no connection to the state.24 The convention states that the courts designated by the parties in their choice of court agreement must exercise jurisdiction over the case.25 Some parties may wish to choose a "neutral" site for litigation of their disputes.26 However, a state may declare that its courts will not exercise jurisdiction over disputes that have no connection to the state, even if the parties chose that forum.27 For example, in New York, the courts will exercise jurisdiction over a dispute that has no connection to the state only if the parties agree that New York law will apply and there is a minimum amount in controversy.28 The Massachusetts legislature could put similar restrictions on the jurisdiction of the commonwealth's courts.

Thus, there will need to be discussion within Massachusetts regarding the most advantageous approach to implementation of The Hague Convention of Choice of Court Agreements. However, any course will provide a new and more reliable procedure for the recognition and enforcement of Massachusetts judgments in foreign countries. Albeit limited by the small but growing group of its signatories, the convention will give parties entering international commercial transactions the genuine alternative of litigation over arbitration for the resolution of serious disputes that may arise between them.

JONATHAN W. FITCH practices international arbitration and business litigation at Sally & Fitch LLP in Boston. He is also an arbitrator in international arbitrations.
FAITH A. HILL, a graduate of Duke University, is a third year student at Boston College Law School and was a summer associate at Sally & Fitch LLP.
1See Linda J. Silberman, The Impact of Jurisdictional Rules and Recognition Practice on International Business Transactions: the U.S. Regime, 26 Hous. J. Int'l L. 327, 351-352 (2004).

2See Guy S. Lipe & Timothy J. Tyler, The Hague Convention on Choice of Court Agreements: Creating Room for Choice in International Cases, 33 Hous. J. Int'l L. 
1, 4-5 (2010). Full text of the New York Convention and a list of contracting states is available here (last visited July 23, 2012).

3Full Text and Status Table of the Hague Convention on Choice of Court Agreements (Hague Convention), available here (last visited July 23, 2012).

4Hague Convention, art. 3.

5Hague Convention, art. 5, 6, and 8.

6Hague Convention, art. 1.

7Hague Convention, art 2.

8Marta Pertegás, First Secretary, Hague Conference on Private International Law, Presentation at the First Gulf Judicial Seminar on Cross-Frontier Legal Co-operation in Civil and Commercial Matters: Introduction to the 2005 Choice of Court Convention (June 21, 2011), available here.

9Id.

10Id.

11Silberman, supra note 2.

12See Comm. on Foreign and Comparative Law Ass'n of the Bar of the City of New York, Survey on Foreign Recognition of U.S. Money Judgments, 4-13, (2001), available here (last visited July 20, 2012).

13Hague Convention, art. 8(1).

14See Stavrow Brekoulakisa, Enforcement of Foreign Arbitral Awards: Observations on the Efficiency of the Current System and the Gradual Development of Alternative Means of Enforcement, 19 Am. Rev. Int'l Arb. 415, 432 (2008).

15See Lipe & Tyler, supra note 3.

16Massachusetts and fourteen other states have enacted the UFMJRA.  The Uniform Law Commission promulgated an updated version of the UFMJRA in 2005, which 18 states have adopted. The commonwealth has not yet adopted 2005 Act. Full text and status of the UFMJRA is available here (last visited July 23, 2012).  Full text and status of the 2005 Act is available here (last visited July 23, 2012).

17See Mass. Gen. Laws ch. 235 § 23A (2012).

18See Hague Convention, art. 9; Mass. Gen. Laws ch. 235 § 23A, par. 3.

19See, e.g., Violeta I. Balan, Recognition and Enforcement of Foreign Judgments in the United States: The Need for Federal Legislation, 37 J. Marshall L. Rev. 229, 245 (2003) (discussing the narrowness of the public policy exception to the URMJRA); Lucien J. Dhoogeal, Auinda v. Chevron Texaco: Discretionary Grounds for the Non-Recognition of Foreign Judgments for Environmental Injury in the United States, 28 Va. Envtl. L.J. 241, 274 (2010) (discussing the narrowness of the fraud exception to the UFMJRA).

20Mass. Gen. Laws ch. 235 § 23A, par. 2.

21Hague Convention, art. 9(a).

22See May Lu, The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Analysis of the Seven Defenses to Oppose Enforcement in the United States and England, 23 Ariz. J. Int'l & Comp. L. 747, 757 (2006).

23Uniform Law Commission, Uniform Choice of Court Agreements Convention Implementation Act (Uniform Implementation Act), available here (last visited July 23, 2012).

24See Uniform Implementation Act § 10.

25Hague Convention, art. 5.

26See Lipe & Tyler, supra note 3, at 3.

27Hague Convention, art. 19.

28See Carolyn A. Dubay, International Law and Domestic Judicial Procedure: Implementing the Hague Convention on Choice of Court Agreements in the American Federal System, at 32-33, available here (2010).

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