Defenses to Recognition of a Foreign Judgment
The uniform recognition act splits the objections in two. Three grounds require a court to refuse recognition outright. The rest merely permit it to refuse, and the difference between must and may decides how the whole argument is built and what evidence it needs.
The rule in short
Under the uniform recognition act, a court may not recognize a foreign money judgment where the rendering system does not provide impartial tribunals or procedures compatible with due process, or where the foreign court lacked personal or subject matter jurisdiction. A longer list of discretionary grounds covers notice, fraud, public policy, conflicting judgments, breach of a forum agreement, seriously inconvenient forum, and doubts about the integrity of the court.
A judgment creditor who establishes that the uniform act applies has done half the work. The debtor then gets a turn, and the act supplies a closed list of objections. They divide into grounds on which a court may not recognize the judgment and grounds on which it need not, and that division shapes everything about how the argument is presented.
Who has to prove what
The party seeking recognition establishes that the act applies: a money judgment, final, conclusive and enforceable where rendered, and not within an excluded category. Those requirements are described in recognition of a foreign money judgment. The party resisting recognition then carries the burden of establishing a ground for refusal.
That allocation matters in practice because most grounds require evidence about a foreign proceeding, and the debtor is usually better placed to supply it. A debtor who asserts a ground without a record of the foreign proceeding, translated and proved, generally loses on the burden rather than on the merits.
The three mandatory grounds
A court may not recognize the judgment where the rendering judicial system does not provide impartial tribunals or procedures compatible with the requirements of due process of law. Nor where the foreign court did not have personal jurisdiction over the defendant. Nor where it lacked jurisdiction over the subject matter.
The first is a judgment about a system, not about a case. Courts have been reluctant to make such findings, and have generally required evidence going to judicial independence and the structure of review, rather than the quality of the decision under challenge. The narrower discretionary ground aimed at the particular proceeding does more work in most cases.
The jurisdictional ground and the list of sufficient bases
The act does not leave personal jurisdiction to be argued from first principles. It lists bases that are sufficient, and a judgment may not be refused for want of personal jurisdiction where one of them is present: personal service in the foreign country, a voluntary appearance other than to contest jurisdiction or protect seized property, a prior agreement to submit, domicile or incorporation or principal place of business there, a business office there where the claim arose out of business done through it, or operation of a vehicle or aircraft there where the claim arose from that operation.
A court may also recognize other bases as sufficient, so the list is a floor. Where the defendant was never present, never agreed, and did nothing there, the ground has real force, and the analysis resembles personal jurisdiction over a foreign defendant run in reverse.
The public policy ground is the one most often pleaded and least often successful. It asks whether the judgment or the claim on which it is based is repugnant to the public policy of the state or of the United States. A foreign rule that allocates fees differently, permits a claim unknown here, or awards more or less than a local court would is not repugnant. Courts reserve the ground for something closer to an affront, and treat a disagreement about outcomes as the merits argument it usually is.
| Ground | Mandatory or discretionary | What must be shown | How often it succeeds |
|---|---|---|---|
| System lacks impartiality or due process | Mandatory | Evidence about the judicial system as a whole | Rarely |
| No personal jurisdiction | Mandatory | Absence of every listed sufficient basis | Regularly, where the defendant was absent |
| No subject matter jurisdiction | Mandatory | The foreign court's own limits on its competence | Occasionally |
| Insufficient notice to defend | Discretionary | What was served, how, when and where | Often, in default cases |
| Fraud depriving a fair opportunity | Discretionary | Fraud that kept the party from presenting its case | Occasionally |
| Breach of a forum or arbitration agreement | Discretionary | An agreement to resolve the dispute elsewhere | Often, where the clause is clear |
The discretionary grounds
Beyond notice, fraud and public policy, the act permits refusal where the judgment conflicts with another final and conclusive judgment, where the proceeding was contrary to an agreement under which the dispute was to be settled otherwise than by proceedings in that court, and where jurisdiction rested only on personal service and the foreign court was a seriously inconvenient forum.
Two further grounds address the specific case rather than the system: circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment, and a proceeding that was itself incompatible with the requirements of due process. These are the provisions a debtor with evidence of interference in one case actually uses. The forum agreement ground overlaps with the material discussed in forum objections and parallel proceedings abroad.
A federal overlay for defamation judgments
One category is governed by federal statute rather than by state law. A domestic court may not recognize or enforce a foreign judgment for defamation unless it determines that the foreign law provided at least as much protection for freedom of speech and press as the First Amendment and the relevant state constitution would have, or that the party would have been found liable under domestic law in any event.
The statute also requires that the foreign court's exercise of personal jurisdiction would have comported with domestic due process. A party who resists on this basis and succeeds is entitled to seek fees. The mechanics of collection, for judgments that survive all of this, are in enforcing a judgment once it is recognized, and the service question that underlies most notice objections is covered in serving process abroad under the Service Convention.
Points to carry away
- The party resisting recognition carries the burden on every ground.
- Three grounds are mandatory and the rest leave the court a discretion.
- A challenge to the whole rendering system is difficult and rarely succeeds.
- Personal jurisdiction is measured against a list of bases the act treats as sufficient.
- Public policy is a narrow ground aimed at repugnance, not disagreement.
- A separate federal statute governs foreign defamation judgments.
Questions readers ask
How is a challenge to a whole legal system proved?
With evidence about the system rather than about the case. Parties rely on reports from international bodies, findings by other courts that have examined the same system, testimony from lawyers who practice there, and documentary material on judicial independence, tenure and review. Courts set the bar high and have repeatedly declined to condemn a system on the strength of a bad outcome in one case. The narrower discretionary ground aimed at the specific proceeding is usually the stronger argument.
Does a default judgment abroad get recognized?
It can, and the fight is normally about notice rather than about the default itself. The discretionary ground asks whether the defendant received notice of the proceeding in sufficient time to enable a defense. A defendant properly served through the treaty channel who chose not to appear has no complaint. A defendant served by a method the destination country had objected to, or at an address it had abandoned, has a real one, and the certificate produced at the time usually settles which happened.
Can the losing party reargue the merits?
No, and attempts to do so indirectly are the most common reason a resistance fails. The defenses go to jurisdiction, procedure, integrity and policy, not to whether the foreign court weighed the evidence correctly or applied its own law properly. An argument that the foreign court misread a contract is not a public policy objection. The place to make that argument was the appeal in the rendering country, and a party who did not take it usually cannot revive it here.
Sources
- Cornell Legal Information Institute — 28 U.S.C. 4102, Recognition of Foreign Defamation JudgmentsThe federal bar on recognizing a foreign defamation judgment offering less speech protection.
- Cornell Legal Information Institute — 28 U.S.C. 4101, DefinitionsWhat counts as a defamation judgment and a domestic court for the federal overlay.
- Cornell Legal Information Institute — 28 U.S.C. 1738, State and Territorial Statutes and Judicial ProceedingsThe sister-state standard against which a recognized foreign judgment's effect is measured.
- Cornell Legal Information Institute — Federal Rule of Civil Procedure 44.1, Determining Foreign LawHow the rendering country's procedural law is established when its fairness is in issue.
- Cornell Legal Information Institute — Federal Rule of Civil Procedure 44, Proving an Official RecordProving the foreign record, including what the rendering court was told and when.
- HCCH — Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, full textThe treaty's own list of refusal grounds, which closely tracks the uniform act's list.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Cross-Border Litigation
Suing a Foreign State: Immunity as the Default
The Foreign Sovereign Immunities Act makes a foreign state immune from the jurisdiction of federal and state courts except as the statute itself provides, and it is the sole basis for obtaining jurisdiction over a foreign state. A foreign state includes its political subdivisions and its agencies and instrumentalities. Exceptions cover waiver, commercial activity, certain expropriations, property in the United States, some domestic torts, and arbitration.
Forum Objections and Parallel Proceedings Abroad
Forum non conveniens permits a court with jurisdiction to dismiss where an adequate alternative forum exists and the balance of private and public interest factors strongly favors trial there. An alternative forum is adequate where the defendant is amenable to process and the remedy is not so unsatisfactory as to be no remedy at all. A foreign plaintiff's choice of forum receives less deference than a domestic plaintiff's.
The Commercial Activity Exception
A foreign state loses immunity where the action is based upon commercial activity carried on in the United States, upon an act performed here in connection with commercial activity elsewhere, or upon an act outside the United States in connection with commercial activity elsewhere that causes a direct effect here. Commercial character is determined by the nature of the conduct rather than its purpose, following the market-player test in Weltover.