On March 1, 2022, the United States became the sixth state to sign the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“Judgments Convention”).1 If ratified, the Judgments Convention will enable judgment holders to limit the “myriad substantive, procedural and practical obstacles” often encountered in enforcing judgments in foreign jurisdictions.2
Current U.S. Foreign Judgment Recognition Act
The procedure for recognition and enforcement of foreign judgments in the United States is currently regulated state by state. Substantive law in the United States on foreign judgments remains a patchwork of Uniform Acts and common law loosely derived from the United States Supreme Court’s decision in Hilton v. Guyot (1895).3 Hilton clarified that while in principle the merits of a foreign judgment should not be questioned, there are grounds for refusing recognition and enforcement of foreign judgments.
The mandatory grounds for non-recognition and non-enforcement of a foreign judgment in the United States are: (1) lack of due process in the court system of the originating state; (2) lack of jurisdiction ratione materiae of the court of origin; (3) the issuing court’s lack of personal jurisdiction over the defendant; and (4) a judgment in a defamation action the recognition or enforcement of which is prohibited by the SPEECH Act. The discretionary grounds for non-recognition and non-enforcement that a US court may invoke in its discretion include: (1) insufficient notice to the defendant; (2) procedural fraud; (3) violation of public order; (4) conflicting judgments; and (5) the broadcast court was a very awkward forum.4
Obligations of States Parties under the Convention Judgments
The Judgments Convention aims to facilitate the recognition and enforcement of foreign civil judgments between States Parties. Under the Convention, a judgment given by the judiciary of one Party would be recognized and enforced by the judiciary of another Party, unless one of the narrow grounds applies. The Convention applies to all civil and commercial judgments but excludes certain categories of judgments, such as judgments concerning family matters, defamation and privacy, intellectual property and transboundary marine pollution.
The core obligation of the Judgments Convention is codified in Article 4:
A decision rendered by a court in one Contracting State (State of origin) is recognized and enforced in another Contracting State (State addressed). . . Recognition or enforcement may only be refused on the grounds specified in this Convention [under Article 7]. There is no substantive review of the judgment in the requested State.5
This provision would replace the various grounds for non-recognition and non-enforcement provided for in current US law. Under Article 7 of the Judgments Convention, a foreign judgment may be refused recognition and enforcement only if: (1) notice to the defendant is insufficient; (2) procedural fraud; (3) a conflict with the public order of the executing State; (4) a conflict with a choice of court agreement; or (5) conflict with prior judgments rendered in litigation between the same parties.6
Only six states (including the United States) have signed the Judgments Convention, but none have ratified it. The Convention will only enter into force one year after ratification of the Convention by at least two States Parties.
Further, it is unclear whether the United States will ultimately ratify the Judgments Convention as there may be disagreement on how to implement the Convention domestically (i.e., whether it will be implemented by federal law, state law, or a combination). Notably, the Hague Convention on Choice of Court Agreements was signed by the United States in 2009, but has not yet been ratified for similar reasons.
However, if enough states sign and ratify the Judgments Convention, the benefits to US litigants will be significant as US judgment creditors will be able to recognize and enforce their judgments in state parties in a simplified and streamlined process. We anticipate that these benefits will be comparable to those enjoyed by European litigants who have long benefited from a harmonized approach to the recognition and enforcement of judgments of EU Member State courts.
1The United States joined Costa Rica, Israel, the Russian Federation, Ukraine and Uruguay as signatories.
2Sarah E. Coco, Note, The Value of a New Judgments Convention for US Litigants, 94 NYUL Rev. 1209, 1212-13 (2019).
3159 US 113, 206 (1895).
4Recognition Act 2005, § 4(b), (c); Recognition Act 1962, § 4(a), (b); Restatement (Fourth) of the Foreign Relations Act, §§ 483-484.
52019 Hague Judgments Convention, art. 4, ¶¶ 1-2.
6For a more in-depth analysis of these effects, see Diana AA Reisman, Breaking Bad: Fail-Safes to the Hague Judgments Convention, 109 THE GEORGETOWN LAW JOURNAL 229 (2021).