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© Copyright 2017. Jenner & Block London LLP is a limited liability partnership established under the laws of the state of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Jenner & Block London LLP is affiliated with Jenner & Block LLP, which operates Jenner & Block’s offices in the United States.
Richard Ziegler
Elizabeth Edmondson
Patrick Pearsall
Laura MacDonald
Irene Ten Cate
Guide to Enforcement of Foreign Arbitral Awards and Court Judgments in the United States
Practice Series
Author Information
Richard Ziegler
Partner
New York
+1 212 891-1680
Elizabeth Edmonson
Partner
New York
+1 212 891-1606
Patrick W. Pearsall
Partner
Washington, DC
+1 202 637-6393
Laura MacDonald
Associate
New York
+1 212 891-1696
Irene Ten Cate
Associate
New York
+1 212 891-1698
TABLE OF SECTIONS Page
I. INTRODUCTION 1
§ 1 Scope Note 1
II. ENFORCEMENT OF FOREIGN ARBITRAL AWARDS 2
§ 2 Overview and Terminology 2 § 3 The New York Convention 3 § 4 Article V Defenses 4 § 5 Non-Article V Defenses 14 § 6 The Panama Convention 17 § 7 Procedure for Enforcing a Foreign Arbitral Award 19 § 8 Preliminary Relief and Interim Awards 20
III. ENFORCEMENT OF ICSID AWARDS 22
§ 9 The ICSID Convention 23 § 10 Enforcing ICSID Awards in the U.S. Courts 23
IV. ENFORCEMENT OF FOREIGN COURT JUDGMENTS 23
§ 11 Overview 26 § 12 Uniform Acts 26 § 13 Due Process Requirement 29 § 14 Reciprocity 29 § 15 Public Policy and the First Amendment 30 § 16 Procedure to Enforce Foreign Court Judgment 31 § 17 Choice of Court Convention 32
V. CONCLUDING REMARKS 34
Appendix A: Federal Arbitration Act
Appendix B: New York Convention
Appendix C: Ratification Status of the New York Convention
Appendix D: Panama Convention
Appendix E: ICSID Convention (selected provisions)
Appendix F: Uniform Foreign Money-Judgment Recognition Act
Appendix G: Uniform Foreign-Country Money Judgments Recognition Act
Appendix H: Enactment Status of the Uniform Foreign Money-Judgment Recognition Act
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I. INTRODUCTION
§ 1 Scope Note
After fighting a costly battle before a distinguished arbitral tribunal operating under the
auspices of a leading international arbitration institution, you receive the arbitration award.
Good news: your client has been awarded a substantial sum in damages! But when you reach
out to your opposing party to arrange to collect, she tells you, however politely, to get lost.
Or perhaps you sued a corporation in a court in its home jurisdiction, outside the United
States. You served the corporation with process through time-consuming channels and
otherwise complied with the jurisdiction’s procedural requirements, and after seemingly
interminable delays you actually obtain a judgment in your favor. But nobody at the defendant
company returns the emails and voice mail messages in which you inquire about the logistics
of a money transfer.
In international disputes, winning a favorable award or judgment may merely close a
chapter in the dispute resolution process. If the losing party does not comply voluntarily, you
will depend on the courts in the country where the opposing party resides or has significant
assets to convert a favorable ruling into cash. This guide provides a practical overview of the
enforcement of foreign arbitral awards and court judgments in the United States. It discusses
the law governing the enforcement process, the procedures that must be followed, potential
defenses against enforcement, and issues that may arise in enforcing orders or awards
providing for preliminary relief or interim measures.
Jenner & Block has prepared a companion guide that addresses these same issues for
the United Kingdom.
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II. ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
§ 2 Overview and Terminology
In the United States, the enforcement of foreign arbitral awards is governed principally
by the 1958 United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the “New York Convention”),1 but as explained in § 6 below, some foreign
arbitral awards are governed by the Inter-American Convention on International Commercial
Arbitration (the “Panama Convention”).2 The New York and Panama Conventions are
incorporated into United States law in, respectively, Chapters 2 and 3 of the Federal Arbitration
Act (“FAA”).3
The terms “recognition” and “enforcement” – which appear in the title of the New York
Convention – have distinct meanings but are often used interchangeably.4 To add to the
potential for confusion, the FAA uses the term “confirmation,” rather than “recognition” or
“enforcement,” to describe the process through which a court converts an arbitral award into a
court judgment.5 The judgment then enables the award-creditor to engage in “execution”—the
process of using government authority to satisfy the award/judgment by executing on the
award-debtor’s assets.6 Notably, the Restatement (Third) of the U.S. Law of International
Commercial Arbitration defines both “enforcement” and “confirmation” as “the reduction to
1 June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 28. 2 Jan. 30, 1975, 1438 U.N.T.S. 245, 14 I.L.M. 336. 3 9 U.S.C. §§ 201-208; 301-307. 4 See Nigel Blackaby et al., Redfern and Hunter on International Arbitration §11.19 (6th ed. 2015) (noting that “[t]he terms are sometimes used as though they are always inextricably linked.”). 5 Restatement (Third) of the U.S. Law of International Commercial Arbitration, Tentative Draft No. 2 §§ 1.1(l) & (z) (April 16, 2012) (hereinafter “Restatement”). As of October 2017, this Restatement (the first to address International Commercial Arbitration) was not finalized. However, the definitions section has been approved by the membership of the American Law Institute at its 2012 Annual Meeting. See https://www.ali.org/publications/show/us-law-international-commercial-arbitration/#drafts. A leading commentator explains that recognition, which means that the court has determined that an arbitral award is valid and binding after consideration of any available defenses asserted by the award-debtor, is distinct from enforcement, which goes a step further, allowing the award to be carried out in the relevant jurisdiction. That said, if an award is to be enforced it must necessarily be recognised by the enforcing court. Thus, as also recognized in the Restatement, the precise distinction is between “recognition” and “recognition and enforcement.” See, Blackaby, supra note 4, § 11.19; Restatement § 1.1(l) cmt. (observing that “[e]nforcement of an award implies ‘recognition’ of the award”); see generally Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, 863 F.3d 96, 118-121 (2d Cir. 2017) (discussing distinction between recognition and enforcement). 6 See Restatement § 1.1(m).
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judgment of an international arbitral award,” with the former term referring to foreign arbitral
awards (i.e., awards made outside the United States) and the latter term referring to domestic
arbitral awards (i.e., awards made in the United States).7 This guide adopts the terminology
used in the Restatement and generally uses the term “enforcement” to refer to “recognition
and enforcement” of a foreign arbitral award that is governed by the New York or Panama
Conventions. U.S. courts, however, often use the term “confirmation” for foreign as well as
domestic arbitral awards.
The Restatement’s definition of “international arbitral award” excludes awards governed
by the Convention on the Settlement of Investment Disputes between States and Nationals of
Other States (“ICSID Convention”).8 The process for enforcing ICSID Convention awards is
described in Part III below.
§ 3 The New York Convention
The United States acceded to the New York Convention in 1970.9 Pursuant to Article
III of the New York Convention, each Contracting State binds itself to “recognize arbitral
awards as binding and enforce them in accordance with the rules of procedure of the territory
where the award is relied upon.” The United States invoked both the “commercial reservation”
and the “reciprocity reservation” when acceding to the New York Convention.10 The
commercial reservation limits the application of the New York Convention to disputes arising
out of relationships, whether contractual or not, that are considered “commercial” under United
States law.11 Under the reciprocity reservation, the Convention applies only to awards made
in nation states that are also parties to the Convention.12 Given that more than 150 States are
7 Id. §§ 1.1(l) 8 International Centre for Settlement of Investment Disputes Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Oct. 14, 1966, 17 U.S.T. 1270, T.I.A.S. No. 6090, 575 U.N.T.S. 159. 9 Recognition and Enforcement of Foreign Arbitral Awards (1970), 21 U.S.T. 2517, T.I.A.S. No. 6997. 10 21 U.S.T. 2517, T.I.A.S. No. 6997. 11 New York Convention, Art. I(3); see also Luke Eric Peterson & Nick Gallus, International Investment Treaty Protection of Not-for-Profit Organizations, 10 Int’l J. of Not-for-Profit L. 47, 73 (2007). 12 New York Convention, Art. I(3); see also William W. Park, The Int’l Currency of Arbitral Awards, 1 Int’l Arb. 3, 12-13 (Practicing Law Institute 2008).
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currently parties to the New York Convention, the significance of the reciprocity reservation
continues to diminish.13
The law in the United States is favorable to the enforcement of foreign arbitral awards.
U.S. courts have repeatedly recognized the “general pro-enforcement bias informing the [New
York] Convention.”14 They also have acknowledged that the United States, in adopting the
Convention, aimed to “encourage the recognition and enforcement of international arbitral
awards.”15
§ 4 Article V Defenses
§ 4.1 General
In the United States, a court must enforce a foreign arbitral award unless one of the
grounds for refusal of recognition and enforcement set forth in Article V of the New York
Convention applies.16 A judgment enforcing or “confirming” an arbitral award recognizes its
13 21 U.S.T. 2517, T.I.A.S. No. 6997. 14 Parsons & Whittemore Overseas Co. v. Société Générale de L’Industrie du Papier, 508 F.2d 969, 973 (2d Cir. 1974). N.B.
This decision and many other useful decisions from numerous jurisdictions interpreting and applying the New York Convention are available free of charge at http://newyorkconvention1958.org/, a newly-launched website developed by Shearman & Sterling and Columbia Law School, in cooperation with UNCITRAL. 15 Bergessen v. Joseph Muller Corp., 710 F.2d 928, 932 (2d Cir. 1983). 16 9 U.S.C. § 207. Article V of the New York Convention sets forth the following grounds for the refusal to enforce an arbitral award:
1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country.
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validity and effectively converts the award into a court judgment, which can then be executed
on assets of the judgment-debtor in the United States.
In keeping with the Convention’s “pro-enforcement” bias, a party challenging an award
bears the burden of proving that recognition and enforcement should be denied.17 Importantly,
the FAA states that a U.S. “court shall confirm the award unless it finds one of the grounds for
refusal or deferral of recognition or enforcement of the award specified in the
. . . Convention.”18 U.S. courts construe the Article V defenses narrowly.19 They frequently
state that the enumerated grounds in Article V provide the exclusive bases for opposing
enforcement,20 although as discussed in § 5 below, courts at times depart from that limitation.
As a general matter, the Article V defenses do not permit a court to refuse to enforce an award
simply because the court disagrees with the arbitrators’ decision on the merits.21
§ 4.2 Due Process and Public Policy Defenses
In opposing enforcement of “foreign” or “non-domestic” arbitral awards, parties often
raise due process and public policy objections.22 Under Article V(1)(b) of the New York
Convention, a court may refuse enforcement of an arbitral award if “[t]he party against whom
the award is invoked was not given proper notice of the appointment of the arbitrator or of the
arbitration proceedings or was otherwise unable to present his case[.]” This provision permits
courts to apply their respective forums’ due process standards, and U.S. courts have
interpreted it as essentially incorporating the concept of due process into the Convention.23
17 See First State Ins. Co. v. Banco de Seguros Del Estado, 254 F.3d 354, 357 (1st Cir. 2001). 18 9 U.S.C. § 207. 19 Id. 20 See, e.g., Encyclopaedia Universalis S.A. v. Encyclopaedia Brittanica, Inc., 403 F.3d 85, 92 (2d Cir. 2005); Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc., 126 F.3d 15, 20 (2d Cir. 1997) (collecting cases); M&C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851 (6th Cir. 1996). 21 See Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 288 (5th Cir. 2004) (“Absent extraordinary circumstances, a confirming court is not to reconsider an arbitrator’s findings.” (quoting Europcar Italia, S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310, 315 (2d Cir. 1998))). 22 Parsons, 508 F.2d at 975; Steel Corporation of the Philippines v. International Steel Services, Inc., No. 06-386, 2008 WL 342036, at *6 (W.D. Penn. Feb. 6, 2008). 23 Parsons, 508 F.2d at 975.
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The due process requirement in the United States entails “the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’”24 To comply with due process, an arbitral
tribunal must provide the parties with “a fundamentally fair hearing,” defined as one that
provides “adequate notice, a hearing on the evidence, and an impartial decision by the
arbitrator.”25 Article V(2)(b) of the New York Convention allows courts to refuse to enforce an
arbitral award if enforcement would contravene the public policy of the country in which
enforcement is sought. In practice, both of these defenses have proven difficult to establish.
§ 4.2.1 The Due Process Defense
The best-known example of a successful challenge based on a party’s inability to
present its case is the Second Circuit’s decision in Iran Aircraft Indus. v. Avco Corp., which
involved an award from the Iran-U.S. Claims Tribunal. The claimant in that case was Avco
Corp., a U.S. corporation that had contracted to repair and replace helicopter engines and
related parts for two entities controlled by the Islamic Republic of Iran. At a pre-hearing
conference, the tribunal chair told Avco that it could submit audited accounts receivable
ledgers as proof of its loss rather than the actual invoices, which were voluminous.26 By the
time the hearing on the merits took place, the chair had been replaced. Over a dissent by the
American arbitrator – the only tribunal member who had been present at the pre-hearing
conference – the tribunal by majority denied the claimant’s claim, ruling that it was insufficiently
documented because the claimant had failed to submit the underlying invoices.27 The tribunal
awarded the Iranian state-owned entities approximately US$3.5 million on its counterclaim
against Avco, and the entities sought enforcement of the award. On appeal, the Second Circuit
held that by “misleading” the claimant, “however unwittingly,” as to the documentation required
24 Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141 (2d Cir. 1992) (citing Mathews v. Eldridge, 424 U.S. 319 (1976)). 25 Generica Ltd. v. Pharmaceutical Basics, 125 F.3d 1123, 1130 (7th Cir. 1997) (internal citations and quotation marks
omitted). 26 Id. at 143. 27 Id. at 144.
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to prove the claim, the tribunal had deprived the claimant of the right to present its case.
Consequently, the award was unenforceable under Article V(1)(b).28
Avco presented a highly unusual scenario, however, and as a practical matter due
process defenses are rarely successful. As the Seventh Circuit observed, “parties that have
chosen to remedy their disputes through arbitration rather than litigation should not expect the
same procedures they would find in the judicial arena.”29 Consequently, “[a]n arbitrator enjoys
wide latitude in conducting an arbitration hearing.”30 Courts typically reject due process
defenses if a tribunal’s restrictions did not result in the exclusion of evidence that would have
been “central or decisive” to a party’s claim or defense.31 Thus, U.S. courts have enforced
arbitral awards where the tribunal denied a party full cross examination of a witness but –
among other reasons – the tribunal did not rely on the portions of the testimony on which cross
examination was sought;32 where parties were provided unequal time to present their cases
but the complaining party did not identify how it was prejudiced;33 and where a party was
denied some of the discovery it sought but could not establish prejudice.34
Courts have been more receptive to due process defenses based on inadequate notice.
To comply with due process, notice must be “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action[.]”35 In some
instances, courts have held that notice in the language of the jurisdiction where the arbitration
28 Id. at 146. 29 Generica, 125 F.3d at 1130. 30 Id. (citing Hoteles Condado Beach v. Union De Tronquistas, 763 F.2d 34, 38 (1st Cir. 1985). 31 Karaha Bodas, 364 F.3d at 302 (internal quotation marks omitted). 32 Id. at 1130-31. 33 Gold Reserve Inc. v. Bolivarian Republic of Venezuela, 146 F. Supp. 3d 112, 128-29 (D.D.C. 2015) (appeal pending as of Oct. 19, 2017). 34 See, e.g., Karaha Bodas, 364 F.3d at 300-304; Abu Dhabi Inv. Authority v. Citigroup, Inc., No. 12 Civ. 283 (GBD), 2013 WL 789642, at *7-9 (S.D.N.Y. Mar. 4, 2013). 35 Guang Dong Light Headgear Factory Co. v. ACI Int’l, Inc., No. 03-4165-JAR, 2005 WL 1118130, at *8 (D. Kan. May 10, 2005) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). In Yukos Capital S.A.R.L. v. OAO Samaraneftegaz, 963 F. Supp. 2d 289, 297 (S.D.N.Y. 2013), however, the court rejected a due process argument where notices sent by the arbitration institution were initially sent to the respondent’s headquarters and then to a mailing address on the letterhead of a letter sent by a related entity that purported to write on behalf of the respondent.
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is seated may not be sufficient if the respondent lacked familiarity with that language.36 In
contrast, courts have rejected “participation defenses” in which parties argued that they were
prevented from participating because a party or its principal would face serious risks at the site
of the arbitration hearing. In those cases, courts reasoned that a party could participate at the
hearing through a representative, or remotely via video or teleconference.37
§ 4.2.2 The Public Policy Defense
It is even harder to successfully invoke the public policy defense. In light of the New
York Convention’s “pro-enforcement bias” and comity considerations, U.S. courts construe this
defense narrowly and limit its application to situations in which “enforcement would violate the
forum state’s most basic notions of morality and justice.”38 To qualify as a ground for non-
enforcement, public policy “must be well-defined and dominant, and is to be ascertained by
reference to the laws and legal precedents and not from general considerations of supposed
public interests.”39 One situation in which parties have invoked the public policy defense is
where compliance with an award could run afoul of restrictions on transactions with hostile
nations imposed by the U.S. government. Two decisions from the Ninth Circuit involving the
Republic of Iran, decided nearly two decades apart, illustrate the significant obstacles facing a
party that seeks to resist enforcement on that basis.
In Ministry of Defense of the Islamic Republic of Iran v. Gould, decided in 1992, the
Ninth Circuit considered the enforcement of an award from the Iran-United States Claims
Tribunal ordering a U.S. company to make certain communications equipment available to the
government of Iran.40 The company invoked a federal statute prohibiting the export of such
36 See, e.g., CEEG (Shanghai) Solar Science & Tech. Co., Ltd. v. Lumos LLC, No. 14-cv-03118-WYD-MEH, 2015 WL 3457853, at *4-5 (D. Colo. May 29, 2015); Qingdao Free Trade Zone Genius Int’l Trading Co.. v. P&S Int’l, Inc., No. 08-1292-HU, 2009 WL 2997184, at *4 (D. Ore. Sept. 16, 2009). 37 See, e.g., Research and Development Ctr. “Teploenergetika,” LLC v. EP Int’l, LLC, 182 F. Supp. 3d 556, 570 (E.D. Va. 2016); Consorcio Rive, S.A. v. Briggs of Cancun, Inc., 134 F. Supp. 2d 789, 796 (E.D. La. 2001). 38 Parsons, 508 F.2d at 974. 39 United Paperwork Int’l Union v. Misco, Inc., 484 U.S. 29, 43 (1987) (internal citations omitted). 40 969 F.2d 764 (9th Cir. 1992).
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goods to Iran, which had been determined to support international terrorist acts. In an amicus
brief, the State Department had argued that the company could comply with the award without
violating the U.S. export restrictions by transferring the equipment to Iran inside the United
States. 41 The Ninth Circuit remanded the case to the district court to consider factual and
legal issues presented by the solution proposed by the State Department.42
In 2002, the Ninth Circuit revisited the issue of U.S. export restrictions in Ministry of
Defense of the Islamic Republic of Iran v. Cubic Defense Systems, Inc.43 The dispute in that
case arose out of a contract, entered into in 1977, under which Cubic (a U.S. company) was
to sell an air combat maneuvering range to Iran. Two years later, after the Iranian Revolution,
the parties terminated the contract and agreed that the parties would settle after the company
tried to resell the equipment.44 Eventually Iran obtained an award from an ICC tribunal, and
obtained enforcement of the award from a federal district court in California. The Ninth Circuit
affirmed, rejecting Cubic’s argument that enforcement of the ICC award would violate “a
fundamental public policy against trade and financial transactions with the Islamic Republic of
Iran,” and concluding that the restrictions and sanctions on payments to Iran could not
overcome the “strong public policy in support of the recognition of foreign arbitral awards.”45
In so ruling, the court distinguished between enforcement of an arbitral award and its payment
at the execution stage, holding that the former did not implicate the public policy concerns that
might be raised by the latter especially because the sanctions regime allowed for the possibility
of obtaining approval for payments.46 This reasoning was consistent with the position of the
U.S. Government, which had submitted a brief at the court’s invitation.47 The Ninth Circuit
considered that if the U.S. Government were to deny a license to pay the award – and Cubic
41 Id. at 773. 42 Id. at 773-74. It is unclear what the district court decided on remand, as it did not publish a written decision on the issue. 43 665 F.3d 1091 (9th Cir. 2011). 44 Id. at 1094. 45 Id. at 1097-98. 46 Id. at 1098-99. 47 Id.
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would therefore commit a crime by making such a payment – Cubic could seek a stay of
execution of judgment.48
§ 4.3 Enforcement of Annulled Awards
The defense that has proven most controversial is Article V(1)(e), which provides that
“[r]ecognition and enforcement of the award may be refused” if a party demonstrates that “[t]he
award . . . has been set aside or suspended by a competent authority of the country in which,
or under the law of which, that award was made.”49 As courts and scholars have observed,
the plain language of the Convention allows, but does not require, a court to deny enforcement
or recognition of the award.50
The debate about the level of deference owed to annulments by courts at the seat of
the arbitration was set off by a 1996 decision from the district court in the District of Columbia,
In re Chromalloy Aeroservices. The court enforced an arbitral award previously vacated by a
court in Egypt, where the arbitration was seated.51 In so ruling, it reasoned that denying
enforcement would violate the United States’ public policy in favor of final and binding
arbitration of commercial disputes.52
About a decade later, the issue reached a federal appellate court, with a contrary
outcome. In TermoRio S.A. E.S.P. v. Electranta S.P., decided in 2007, the D.C. Circuit held
nullified awards may not be enforced, absent a showing that the nullification was contrary to
the “basic notions of justice to which we subscribe.”53 The D.C. Circuit declined to opine on
48 Id. at 1100. 49 New York Convention, Art. V(1)(e) (emphasis added). 50 See, e.g., Linda Silberman & Nathan Yaffe, The US Approach to Recognition and Enforcement of Awards After Set-Asides: The Impact of the Pemex Decision, 40 Fordham Int’l L.J. 799, 802 (2017) (citing cases and noting that in the United States, courts “appear[] to follow a more discretionary approach in assessing whether to enforce an annulled award,” but that “it has been difficult to identify with any precision the standard that the courts in the United States have adopted”); see also TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 936 (D.C. Cir. 2007) (holding that the New York Convention’s principle that “an arbitration award does not exist to be enforced in other Contracting States if it has been lawfully ‘set aside’ by a competent authority in the State in which the award was made,” led the court to find that the award should not be enforced). 51 939 F. Supp. 907 (D.D.C. 1996). 52 Id. at 913. 53 487 F.3d at 939.
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whether Chromalloy was correctly decided, distinguishing that case on the basis that the party
that sought nullification in Egypt had done so in express violation of a contractual
commitment.54 But the facts in TermoRio demonstrate the strength of the presumption of non-
enforceability. In that case, a Colombian court nullified a US$60 million arbitral award against
a Colombian state-owned utility on the ground that Colombian law did not then expressly
authorize arbitrations under the Rules of the International Chamber of Commerce.55 The D.C.
Circuit concluded that the New York Convention does not permit a U.S. court to “second guess
the judgment” of a court in the jurisdiction in which the award was made.56 That a U.S. court
would not have vacated the award, and that the Colombian court’s decision was plainly
inconsistent with the United States’ pro-arbitration policy, did not matter.57 Thus, TermoRio
sets a strong presumption that awards that have been annulled at the seat of the arbitration
are unenforceable.58
The Second Circuit issued the first appellate decision affirming enforcement of an
annulled arbitral award in Corporación Mexicana De Mantenimiento Integral, S. De R.L. De
C.V. v. Pemex-Exploración Y Producción.59 The case involved an arbitration in Mexico of a
contract dispute between Corporación Mexicana De Mantenimiento Integral (“COMMISA”) and
several Mexican state-owned entities that are collectively referenced as Pemex. After being
awarded damages, COMMISA obtained enforcement of the arbitral award in the Southern
54 Id. at 937. 55 Id. at 931. 56 Id. at 937. 57 Id. The D.C. Circuit did not completely foreclose the possibility of the enforcement of a nullified award, suggesting that it might be proper if the actions of the foreign court were “repugnant to fundamental notions of what is decent and just.” Id. at 939. Elaborating further, the court said that enforcement was possible if the nullification of an award “tends clearly to undermine the public interest, the public confidence in the administration of the law, or security for individual rights of personal liberty or of private property.” Id. at 938. 58 Of course, the deference is limited to decisions from courts in the jurisdiction where the arbitration is seated. In Steel Corporation of the Philippines v. International Steel Services, Inc., a federal district court in Pennsylvania refused to stay enforcement of an arbitral award made in Singapore pending the resolution of a challenge to the award in the courts of the Republic of the Philippines. The court reasoned that Singapore, as the country where the award was made, was the only country with primary jurisdiction to vacate the arbitral award. Accordingly, the proceedings in the Philippines were immaterial to whether the award could or could not be enforced in the United States. No. 06-386, 2008 WL 342036, at *4-5 (W.D. Pa. Feb. 6, 2008). 59 832 F.3d 92 (2d Cir. 2016); see also Silberman & Yaffe, supra note 50, at 799.
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District of New York.60 While appeal of that ruling was pending before the Second Circuit, a
court in Mexico, where the arbitration was seated, annulled the award on the basis that the
Mexican government could not be forced to arbitrate.61 The Second Circuit remanded with
instructions to the district court to reevaluate the case in light of the annulment in Mexico.62
On remand, the district court again enforced the award, and Pemex again appealed.63 The
Second Circuit affirmed the district court’s decision. It ruled that in exercising the discretion
granted by Article V(1)(e), district courts were “constrained by the prudential concern of
international comity.”64 The Second Circuit recognized a “public policy” exception to the comity
principle, however, for instances in which enforcement of an annulled arbitral award was
needed “to vindicate ‘fundamental notions of what is decent and just’ in the United States.”65
Concluding that the district court acted within its discretion in affirming the award, the Second
Circuit provided four reasons why the Mexican court’s annulment of the award violated public
policy: “(1) the vindication of contractual undertakings and the waiver of sovereign immunity;
(2) the repugnancy of retroactive legislation that disrupts contractual expectations; (3) the need
to ensure legal claims find a forum; and (4) the prohibition against government expropriation
without compensation.”66
In Thai-Lao Lignite (Thailand) Co., Ltd. v. Government of the Lao People’s Democratic
Republic,67 the Second Circuit addressed the situation in which a court in the seat of the
arbitration annulled an award after the prevailing party had obtained recognition in the United
States. In Thai-Lao, a corporation and its subsidiary won a favorable award against Laos in
an arbitration seated in Malaysia after the government of Laos terminated contracts granting
60 Id. 61 Id. at 99. 62 Id. at 100. 63 Id. 64 Id. at 106. 65 Id. at 107 (quoting TermoRio, 487 F.3d at 938). 66 Id. at 107. 67 864 F.3d 172 (2d Cir. 2017).
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the petitioners mining rights.68 After the petitioners obtained a judgment from the district court
of the Southern District of New York enforcing the award, a court in Malaysia granted Laos’s
request to set aside the award, even though the request was filed approximately nine months
after the deadline for a challenge had passed.69 Laos then sought relief in the district court for
the Southern District of New York under Federal Rule of Civil Procedure 60(b)(5), which
authorizes courts to “relieve a party . . . from a final judgment” if it is based on an earlier
judgment that has been reversed or vacated.” The district court granted Laos’s Rule 60(b)(5)
motion.70 The Second Circuit affirmed.
Addressing the interplay between Rule 60(b)(5) and Article V(1)(e) of the New York
Convention, the Second Circuit held that district courts should apply Rule 60(b)(5) to a motion
to vacate a judgment enforcing an arbitral award that was subsequently set aside in the primary
jurisdiction.71 The court held that in evaluating such a motion, the district court should accord
“significant weight” to the annulment of an arbitral award, but that it also “should be guided by
the full range of interests protected by Rule 60(b)” and “should consider whether the motion
was made within a reasonable time, whether the movant acted equitably, and whether vacatur
would strike an appropriate balance between serving the ends of justice and preserving the
finality of judgments, as well as the prudential concern for international comity.”72 The Second
Circuit concluded that in light of the facts presented, the district court had not exceeded its
discretion in granting Laos’s motion under Rule 60(b).73
TermoRio and Thai-Lao drive home the importance of selecting a neutral jurisdiction as
the arbitration seat, especially when state-owned entities are involved. Of course, the best –
68 Id. at 175. 69 Id. 70 Id. 71 Id. at 185. 72 Id. at 186. 73 Id. at 187-89.
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and often only – time to implement this lesson is at the time the arbitration agreement is
negotiated and drafted.
§ 5 Non-Article V Defenses
From time to time, non-Article V challenges to enforcement have met with some
success, despite the admonition of courts that the Article V list of defenses is exclusive.74 For
the most part, these additional defenses have focused on the procedural requirements of U.S.
courts. For example, U.S. courts have refused to enforce awards based on their lack of
personal jurisdiction over the defendant75 or on grounds of forum non conveniens.76
§ 5.1 Personal Jurisdiction
Parties seeking to enforce arbitral awards have argued that since personal jurisdiction
is not mentioned as an Article V defense, courts may not dismiss cases for lack of personal
jurisdiction. Courts have rejected this view, holding that “foreign corporations may invoke due
process protections to challenge the exercise of personal jurisdiction over them.”77 Foreign
states, in contrast, cannot successfully invoke personal jurisdiction as a defense because they
“are not ‘persons’ protected by the Fifth Amendment.”78 With regards to state-owned
corporations, courts will find that “[w]henever a foreign sovereign controls an instrumentality to
such a degree that a principal-agent relationship arises between them, the instrumentality
receives the same due process protection as the sovereign: none.”79
When jurisdiction is solely based on the presence of assets in a jurisdiction (i.e., quasi
in rem jurisdiction), a party seeking recognition and enforcement will want to ensure that these
74 See supra § 4.1. 75 See, e.g., GSS Grp. Ltd v. Nat’l Port Auth., 680 F.3d 805, 813 (D.C. Cir. 2012); First Inv. Corp. of Marshall Islands v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742, 748 (5th Cir. 2012), as revised (Jan. 17, 2013); Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 398 (2d Cir. 2009); Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1121 (9th Cir. 2002). 76 In re Monegasque de Reassurances S.A.M. (Monde Re) v. NAK Naftogaz of Ukraine and State of Ukraine, 311 F.3d 488, 495 (2d Cir. 2002). 77 GSS Grp., 680 F.3d at 813; see also Glencore Grain, 284 F.3d at 1121. 78 Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 96 (D.C. Cir. 2002). 79 GSS Grp., 680 F.3d at 815; see also Frontera, 582 F.3d at 400.
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assets are substantial. One district court found that quasi in rem jurisdiction was limited to the
value of the property maintained by the defendant within that court’s jurisdiction. As a result,
enforcement of the award was limited to the US$0.05 in the defendant’s bank account.80
Parties can try to attach assets while an arbitration proceeding is pending, but such procedures
are governed by state law which varies between jurisdictions and may pose significant
hurdles.81
§ 5.2 Forum Non Conveniens
Courts have also dismissed arbitration enforcement cases based on the forum non
conveniens doctrine. The threshold question in forum non conveniens cases is whether
another forum would be able to provide adequate relief.82 If an alternative forum exists, courts
must balance the relevant interests, weighing both the private83 and the public84 factors.
Finally, courts must determine how much deference to give to the plaintiff’s forum choice.85
The degree of deference accorded to the plaintiff is assessed on a “sliding scale,” taking into
account the strength of the connection between the lawsuit and the United States.86
80 CME Media Enterprises V.B. v. Zelezny, No. 01 Civ. 1733(DC), 2001 WL 1035138, at *1 (S.D.N.Y. Sept. 10, 2001) (“The Court does not have jurisdiction to confirm an award in the amount of $23.35 million; CME may enforce the award only against the assets of $0.05.”). 81 Obstacles to seeking prejudgment attachment in aid of arbitration, and initiatives to achieve greater uniformity, are addressed in Elizabeth Edmondson & Richard Ziegler, The Complications of Attaching Assets in the U.S. in Aid of an Arbitral Award, 10 Disp. Res. Int’l 71 (2016). 82 TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 303 (D.C. Cir. 2005) (“The district court need not weigh any
factors favoring dismissal, however, if no other forum to which the plaintiff may repair can grant the relief it may obtain in the forum it chose.”) 83 Monegasque De Reassurances S.A.M., 311 F.3d at 500 (“[T]he private interest factors[] pertain[] to the convenience of the litigants—‘the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’” (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947))). 84 Id. (“These [public interest] factors include the administrative difficulties associated with court congestion; the imposition of jury duty upon those whose community bears no relationship to the litigation; the local interest in resolving local disputes; and the problems implicated in the application of foreign law.” (citing Gilbert, 330 U.S. at 508-09)). 85 Id. at 498. 86 Id.
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§ 5.3 Manifest Disregard
The “manifest disregard” doctrine is a judicially-created basis for vacating or refusing
enforcement of a domestic arbitral award.87 Although it is not included in the enumerated
grounds for refusal of enforcement in the New York Convention, courts have occasionally
suggested that enforcement could properly be refused based on the arbitrators’ “manifest
disregard” of the arbitration agreement or the law.88 Parties sometimes try to dress up
“manifest disregard” objections as public policy defenses to bring them within the Article V
grounds for non-enforcement, but courts have consistently called out such attempts.89
In its 2008 decision Hall Street Associates, L.L.C. v. Mattel, Inc., which involved a
domestic arbitral award, the Supreme Court held that parties could not contractually expand
judicial review of arbitral awards because the FAA grounds for vacating or modifying awards
were “exclusive.”90 Several appellate courts considered this holding to be the death knell of
manifest disregard, but others continued to treat the doctrine as a viable basis for denying
enforcement of arbitral awards.91 In Stolt-Nielsen S.A. v. AnimalFeeds International Corp.,
decided two years after Hall Street, the Supreme Court in dicta expressly declined to rule on
the continued viability of the manifest disregard doctrine.92
87 Lander Co., Inc. v. MMP Invest., Inc., 107 F.3d 476, 480 (7th Cir. 1997). 88 See Yusuf, 126 F.3d at 20; Lander Co., Inc. v. MMP Invest., Inc., 107 F.3d 476, 480 (7th Cir. 1997). 89 See, e.g., Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255, 264 (2d Cir. 2003) (affirming rejection of manifest disregard argument recycled as a public policy defense); M&C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851 n.2 (6th Cir. 1996) (“Nor can review for a ‘manifest disregard of the law’ be pigeonholed into the ‘violation of pub lic policy’ basis for refusal to confirm an award . . .”); SEI Societa Esplosivi Industriali SpA v. L-3 Fuzing and Ordnance Systems, Inc., 843 F. Supp. 2d 509, 514 (D. Del. 2012) (rejecting public policy arguments that “simply recast [the objecting party’s] allegations of arbitrator error.”); see also Karaha Bodas, 364 F.3d at 306 (“[E]rroneous legal reasoning or misapplication of law is generally not a violation of public policy within the meaning of the New York Convention”). 90 552 U.S. 576, 585 (2008). In holding that the FAA grounds are the “exclusive” bases for vacating or modifying an arbitration award, the Court resolved a split among the federal circuit courts of appeal. The Court’s conclusion has been construed by lower courts as precluding judicially-created grounds for attacking awards, such as the “manifest disregard” doctrine. Citigroup Global Markets, Inc. v. Bacon, No. 07-20670, 2009 WL 542780, at *1 (5th Cir. Mar. 5, 2009); Crawford Group, Inc. v. Holekamp, 543 F.3d 971, 976 (8th Cir. 2008). But see Comedy Club, Inc. v. Improv West Assocs., 553 F.3d 1277, 1281 (9th Cir. 2009) (finding that manifest disregard doctrine survives Hall Street); Coffee Beanery, Ltd. v. WW, LLC, 300 Fed. Appx.
415, 418 (6th Cir. 2008) (same). 91 The Circuit split after Hall Street is summarized in Jason P. Steed, Appealing Arbitration Awards and the Circuit Split over “Manifest Disregard of the Law,” American Bar Association (May 10, 2016), http://apps.americanbar.org/litigation/committees/appellate/articles/spring2016-0516-appealing-arbitration-awards-circuit-split-manifest-disregard-law.html 92 Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 672 n.3 (2010) (“We do not decide whether ‘manifest disregard’ survives our decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 585 (2008), as an independent ground for
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Although the manifest disregard defense has garnered substantial interest from
practitioners and academics, its practical import is limited as even courts that consider it viable
recognize that the doctrine only applies in exceedingly rare circumstances.93
§ 6 The Panama Convention
While this guide focuses on the broadly applicable New York Convention, the United
States is also a party to Panama Convention. The Panama Convention was promulgated in
1975 at the Inter-American Conference on Private International Law, as part of an initiative to
combat distrust towards foreign arbitrators in Latin American courts.94 Nineteen countries in
the Americas are now parties to the Panama Convention, which applies to commercial
transactions between parties from signatory countries who have entered into agreements to
arbitrate.95 The United States ratified the Panama Convention in 1990.
Under U.S. law, if the requirements for applicability of both conventions are met, the
New York Convention controls unless “a majority of the parties to the arbitration agreement
are citizens of a State or States that have ratified or acceded to the Panama Convention” or
the parties expressly agreed otherwise.96 As a practical matter, under most circumstances
enforcement outcomes under the Panama Convention and New York Convention are the
same: The Panama Convention was modeled on the New York Convention, and the two
review or as a judicial gloss on the enumerated grounds for vacatur set forth at 9 U.S.C. § 10. AnimalFeeds characterizes that standard as requiring a showing that the arbitrators ‘knew of the relevant [legal] principle, appreciated that this principle controlled the outcome of the disputed issue, and nonetheless willfully flouted the governing law by refusing to apply it.’ Assuming, arguendo, that such a standard applies, we find it satisfied for the reasons that follow.” (citation omitted) (alteration in original)). 93 See, e.g., S.I. Strong, Navigating the Borders Between International Commercial Arbitration and U.S. Federal Courts: A Jurisprudential GPS, 2012 J. Disp. Resol. 119, 190 (2012) (“The status of manifest disregard as a matter of domestic U.S. law is less than clear, despite several recent U.S. Supreme Court pronouncements on the subject. However, even if manifest disregard survives as a viable ground for vacatur, the doctrine only applies in a very narrow range of cases where the arbitrators were cognizant of controlling legal authority and deliberately disregarded it. As a practical matter, claims of manifest disregard of law very seldom result in the setting aside of an award.”). 94 Helena Tavares Erickson, et al., Looking Back, and Ahead: The Panama Convention After 30 Years, 23 Alternatives to High Cost Litig. 184, 184 (2005). 95 The signatory countries are Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the United States, Uruguay, and Venezuela. Ratification of the Inter-American Convention on International Commercial Arbitration, Jun. 16, 1976, http://www.oas.org/juridico/english/sigs/b-35.html. 96 9 U.S.C. § 305.
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Conventions’ grounds for refusing enforcement are essentially identical.97 Courts have noted
that “[t]here is no substantive difference between the two[,]” citing Congress’ intent that the
same results would be achieved under either convention.98
Nonetheless, there are a few distinctions relevant to enforcement. First, the Panama
Convention mandates that the rules of the Inter-American Commercial Arbitration Commission
(“IACAC”) will govern the arbitration unless otherwise agreed,99 which may affect the
interpretation of the grounds for refusing enforcement. For example, enforcement may be
refused under the Panama Convention if the party opposing enforcement “was not duly notified
of the appointment of the arbitrator or of the arbitration procedure[,]” which could hinge, in part,
on whether the relevant appointment procedure in the IACAC rules was followed.100 Second,
as highlighted by a court in the Southern District of New York, the scope of application of the
two Conventions differs:
While the New York Convention limits itself to awards considered foreign in the State where their recognition and enforcement are sought, the Inter-American Convention applies more generally to awards resulting from international commercial arbitration. For example, if parties sought enforcement in the United States of an award rendered in Panama, involving only Panamanian citizens conducting a domestic transaction, the New York Convention would likely apply but the Inter-American Convention would not because of the award’s purely domestic character. Conversely, if parties sought enforcement in the United States of an award rendered in the United States involving Panamanian and American citizens conducting an international transaction, the Inter-American Convention may be invoked but the New York Convention would not apply because enforcement of the award is being sought in the same state in which the award was issued.101
97 Compare Panama Convention, Art. V with New York Convention, Art. V. Under U.S. law, the Panama Convention incorporates the New York Convention’s grounds for refusing enforcement by reference. Nicor Int’l Corp. v. El Paso Corp.,
292 F. Supp. 2d 1357, 1372 (S.D. Fla. 2003) (citing 9 U.S.C. § 302). 98 Corporacion Mexicana De Mantenimiento Integral, 832 F.3d at 105 & n.9; Energy Transp., Ltd. v. M.V. San Sebastian, 348 F. Supp. 2d 186, 198 (S.D.N.Y. 2004) (internal citations omitted). 99 Panama Convention, Art. III. 100 Id. Art. V(1)(b). 101 Energy Transp., Ltd.348 F. Supp. at 198–99 (citing John P. Bowman, The Panama Convention and Its Implementation under the Federal Arbitration Act, 11 Am. Rev. Int'l. Arb. 1, 20 (2000)).
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The FAA’s provisions apply to cases governed by the Panama Convention, unless their
terms conflict.102 This includes the defenses to enforcement of domestic arbitral awards
outlined in Chapter I of the FAA.103
§ 7 Procedure for Enforcing a Foreign Arbitral Award
The typical procedure for obtaining enforcement of a foreign arbitral award in the United
States starts with an application to a court, in the form of a motion or petition, to confirm the
arbitral award. As explained in § 2 above, “enforcement” or “confirmation” of an award implies
“recognition” of the award’s validity and converts it into a court judgment. This step is therefore
the critical prerequisite to “execution,” which involves an award-creditor’s use of the judicial
process to execute on assets of the award-debtor in the U.S. to satisfy the award.
Federal district courts have original jurisdiction over actions or proceedings falling under
the New York Convention.104 If an enforcement proceeding is commenced in the courts of a
state (e.g., New York or California) rather than in a federal court, the defendant can remove
the action to federal court.105 The action should be brought before a court that has personal
jurisdiction over the defendant or its property.106 Actions to enforce New York Convention
awards must be brought within three years of the award.107
A party seeking enforcement of an arbitral award must produce the authenticated
original award or a certified copy, as well as the signed original arbitration agreement or a
certified copy.108 If these documents are not in English, certified translations are also
required.109 Depending on the jurisdiction, additional documentation, such as affidavits,
102 See 9 U.S.C. § 307; RZS Holdings AVV v. PDVSA Petroleos S.A., 598 F. Supp. 2d 762, 765-66 (E.D. Va. 2009), aff’d sub nom. RZS Holdings AVV v. PDVSA Petroleo S.A., 383 F. App’x 281 (4th Cir. 2010). 103 Sanluis Developments v. CCP Sanluis L.L.C, 498 F. Supp. 2d 699, 706 (S.D.N.Y. 2007). 104 9 U.S.C. § 203; see also 9 U.S.C. § 302 (applying § 203 to the Panama Convention). 105 9 U.S.C. § 205. 106 See supra § 5.1. 107 9 U.S.C. § 207. The statute of limitations begins to run when the arbitrators make a decision, not when an award becomes “final” under governing law. See Transport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572, 581 (2d Cir. 1993), as amended (May 25, 1993). 108 New York Convention, Art. IV. 109 Id.
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memoranda of law, and proposed orders may be required and a hearing may be set.110 Once
these materials have been filed and served on all parties against whom enforcement is sought,
the burden shifts to any resisting party to demonstrate that one of the defenses applies.111 If
a resisting party fails to make such a showing or no party opposes the motion, the award will
be enforced.112 Upon enforcing the award, the court issues a judgment which may be executed
like any other judgment of a U.S. court.113 As a technical matter, an action to enforce an arbitral
award is a summary proceeding, which simply converts a final award into a court judgment.114
Arbitral awards are routinely enforced and thereafter executed.
§ 8 Preliminary Relief and Interim Awards
Like final arbitral awards, interim measures ordered by an arbitral tribunal are not
directly enforceable and require court intervention. U.S. courts may enforce an interim award
if it is final with respect to the matter that it addresses and if it is clear that the arbitral tribunal
intends for it to be immediately enforceable.115 It is the substance of the tribunal’s decision,
rather than the label used, that is determinative.116
Some courts have required that a party seeking to enforce an interim award make a
showing of “immediate need for relief.” For example, in Hall Steel Co. v. Metalloyd Ltd., a
district court in the Eastern District of Michigan denied enforcement of an interim award of legal
costs made in a London arbitration on the basis that the award was not yet final or binding.117
The court stated that an interim award could not be enforced unless (1) it finally and definitely
110 Susan Wiens & Roger Haydock, Confirming Arbitration Awards: Taking the Mystery Out of a Summary Proceeding 33
William Mitchell L. Rev. 1293, 1305-06 (2007). 111 Jiangsu Changlong Chemicals, Co. v. Burlington Bio-Med. & Sci. Corp., 399 F. Supp. 2d 165, 168 (E.D.N.Y. 2005). 112 See Montauk Oil Transp. Corp. v. Steamship Mut. Underwriting Ass'n (Bermuda) Ltd., No. 90 CIV. 3792 (DNE), 1995 WL
361303, at *1-2 (S.D.N.Y. Jun. 16, 1995), aff'd, 79 F.3d 295 (2d Cir. 1996). 113 Wiens & Haydock, supra note 110. 114 Jiangsu Changlong Chemicals, 399 F. Supp. 2d at 168. 115Publicis Communication v. True North Communications, Inc., 206 F.3d 725, 728-29 (7th Cir. 2000). 116 Id. 117 492 F. Supp. 2d 715, 720-21 (E.D. Mich. 2007). The legal costs the party seeking enforcement wanted were the costs of defending a previous U.S. suit to determine whether the matter was arbitrable. Id. at 716.
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disposed of a separate, independent claim and (2) there was an immediate need for relief.118
“Immediate need,” the court explained, occurred in situations where the status quo had to be
preserved to ensure that the final award would be capable of meaningful enforcement.119
Because the court saw no such need in the case before it, it denied enforcement of the interim
award of costs.120
Other courts, however, have not required such a showing. In Hyosung (America) Inc.
v. Tranax Technologies Inc., a district court in the Northern District of California expressly
declined to adopt an “immediate need” requirement. 121 The court enforced a partial award
that “finally and conclusively” settled a distinct claim and was not subject to set-off.122 Similarly,
in Publicis v. True North, the Seventh Circuit affirmed the enforcement of an interim order
directing one of the parties to an arbitration to produce certain tax records.123 Rejecting the
argument that only “awards” and not “orders” could be final and enforceable, the court
concluded that, regardless of the label attached to the arbitration panel’s decision, it was a
final resolution of one issue the parties had asked the arbitrators to resolve.124 This conclusion
was not changed by the fact that other issues might still be pending before the arbitral panel.125
Accordingly, the order was enforceable and the district court had properly entered an order
directing the party to produce its tax returns.126
118 Id. at 719. 119 Id. at 719-20. 120 Id. at 720. 121 No. C 10-0793 VRW, 2010 WL 1853764, at *3-4 (N.D. Cal. May 6, 2010). 122 Id. at *4. 123 206 F.3d at 727. 124 Id. at 729. 125 Id. 126 Id. at 731.
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III. ENFORCEMENT OF ICSID AWARDS
§ 9 The ICSID Convention
Investor-state arbitrations conducted under the rules of the World Bank’s International
Centre for Settlement of Investment Disputes (“ICSID”) are subject to a separate set of
recognition and enforcement rules and procedures. The ICSID Convention sets forth limited
grounds on which parties may challenge awards exclusively through internal ICSID review
proceedings. These grounds include the tribunal’s failure to decide a question in the award
(within 45 days of the award); disagreement between the parties on how to interpret the award
(any time post-award); and discovery of a previously unknown “fact of such a nature as
decisively to affect the award” (within 90 days of discovery of the new fact and in any event
within three years of the award).127 Such applications will be heard, if possible, by the tribunal
that rendered the award. 128 A party may also apply for a full or partial annulment of an award
on the following grounds (within 120 days of the date of the award):
(1) The tribunal was not properly constituted;
(2) The tribunal manifestly exceeded its powers;
(3) Corruption on the part of a member of the tribunal;
(4) A serious departure from a fundamental rule of procedure; or
(5) The award fails to state the reasons on which it is based.129
Upon registration of an annulment application, ICSID appoints a three-member panel
(which cannot include members of the tribunal that rendered the award) that is to act as an ad
hoc committee on the application for annulment. 130 A party may seek to stay enforcement of
127 ICSID Convention, Arts. 49-51 Oct. 14, 1966. 128 Id. Art. 51(3). 129 Id. Art. 52(1). If the ground for annulment is corruption, the application for annulment must be made within 120 days of discovery of the corruption or in any event no later than three years from the date of the award. Id. Art. 52(2). 130 Id. Art. 52(3).
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an award pending the annulment committee’s decision, as well as when applying for revision
or interpretation of an award.131
The ICSID Convention permits member states’ courts only the limited role of
recognizing an award and “enforc[ing] the pecuniary obligations imposed by [an] award[,]”132
so member states’ courts are limited to simply examining and verifying an award’s authenticity
and enforcing the obligations it imposes.133 The ICSID Convention does not specify the
procedures by which member states’ courts should effectuate their role, but it specifies that
“[e]xecution of the award shall be governed by the laws concerning the execution of judgments
in force in the State in whose territories such execution is sought[,]” including laws pertaining
to sovereign immunity.134
§ 10 Enforcing ICSID Awards in the U.S. Courts
While other foreign arbitral awards must be converted into a court judgment as a
prerequisite for execution, ICSID awards are akin to court judgments. Section 1650a, which
implements the ICSID Convention into U.S. law, provides that an ICSID award “shall be
enforced and shall be given the same full faith and credit as if the award were a final judgment
of a court” in the United States, that the Federal Arbitration Act does not apply, and that U.S
district courts have jurisdiction over ICSID award enforcement matters.135 It does not prescribe
the procedure to be followed by U.S. district courts, and until recently, there was disagreement
on the correct procedure for recognizing ICSID awards. Specifically, in Mobil Cerro Negro,
Ltd. v. Bolivarian Republic of Venezuela a court in the Southern District of New York had held
that it could use the summary ex parte procedures that apply to recognition of judgments of
sister-state courts.136 Under this summary procedure, a district court could recognize an ICSID
131 Id. Arts. 50(2), 51(4), 52(5). 132 Id. Arts. 53-54. 133 See Mobil Cerro Negro, 863 F.3d at 102. 134 See ICSID Convention Arts. 54(3), 55. 135 22 U.S.C. § 1650a. 136 87 F. Supp. 3d 573 (S.D.N.Y. Feb. 13, 2015).
24
award without providing the award-debtor an opportunity to be heard and without requiring
service on the award-debtor. A district court in the District of Columbia, on the other hand, had
held that award-creditors had to comply with the requirements of the Foreign Sovereign
Immunities Act of 1976, 28 U.S.C. § 1605 (“FSIA”), which governs United States courts’
jurisdiction over actions against foreign sovereigns, and requires a more involved plenary
proceeding.137
On appeal from the Mobil Cerro Negro decision, the Second Circuit sought the U.S.
Government’s views on the interpretation of the applicable statutes in light of the ICSID
Convention.138 In July 2017, to the disappointment of award-creditors, the Second Circuit
adopted the U.S. Government’s position that the FSIA provides the sole basis for subject
matter jurisdiction in cases brought to enforce ICSID awards, and that the more onerous and
time-consuming procedures of this statute must be followed in such cases.139 This decision
brought the Second Circuit into alignment with the decision from the court in the District of
Columbia.
The FSIA provides that federal courts have authority to exercise personal jurisdiction
over a foreign sovereign when two conditions are met: (1) one of the FSIA’s exceptions from
jurisdictional immunity applies, and (2) the sovereign is served with process meeting the FSIA’s
requirements.140 The first condition is straightforward: the FSIA provides for an exception to
sovereign immunity for enforcement of international arbitral awards against foreign
sovereigns.141 With respect to the second condition, the FSIA’s service requirements are set
forth in 28 U.S.C. § 1608. An award-creditor must also meet the FSIA’s venue requirements
137 Micula v. Romania, 104 F. Supp. 3d 42 (D.D.C. May 18, 2015). 138 Memorandum Brief for U.S. Dep’t of State as Amicus Curiae, Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, No. 15-707, Dkt. 87 (2d Cir. March 30, 2016). 139 Mobil Cerro Negro, 863 F.3d at 117. The ex parte summary proceeding approach relied on the premise that 22 U.S.C. § 1650a, which implements the ICSID Convention, provided its own independent grant of subject matter jurisdiction for ICSID enforcement proceedings. Id. at 117-118. 140 Mobil Cerro Negro, 863 F.3d at 104 (citing 28 U.S.C. §§ 1604 & 1330(b)). 141 28 U.S.C. § 1605(a)(1) and (6); see Mobil Cerro Negro, 863 F.3d at 102.
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set forth in 28 U.S.C. § 1391(f), which provides that venue is proper for a civil action against a
sovereign in the U.S. District Court for the District of Columbia or “in any judicial district in
which a substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated[.]”
The Second Circuit clarified that a plenary proceeding should give the sovereign an
opportunity to appear and file responsive pleadings on cognizable defenses such as
jurisdiction and venue, but not on any substantive award defenses.142 The award-creditor
should commence an action under Federal Rule of Civil Procedure 3 by filing a complaint
describing the award, establishing venue, and providing a copy of the award.143 After the
complaint is served on the sovereign, the award-creditor may file a motion for judgment on the
pleadings or a motion for summary judgment.144 The court observed that the requirement of
a “‘plenary’” rather than a “‘summary’” proceeding does not imply “a proceeding in which the
court must entertain all manner of substantive defenses, or even defenses cognizable under
the [FAA].”145 Thus, litigation seeking enforcement of an ICSID award need not be
“protracted.”146
142 Mobil Cerro Negro, 863 F.3d at 117-118. 143 Id. 144 Id. 145 Id. at 117. 146 Id.
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IV. ENFORCEMENT OF FOREIGN COURT JUDGMENTS
§ 11 Overview
The enforcement of foreign court judgments in the United States depends upon
principles of comity and the laws of the various U.S. states.147 In 2005, the American Law
Institute proposed a federal statute that would govern the recognition of foreign judgments
nationwide, but the only relevant federal law currently in force is a provision to discourage libel
tourism.148 Federal courts hearing cases involving the enforcement of foreign judgments apply
the law of the state in which they are physically situated.149 The United States is not a party
to any international treaties for the enforcement of foreign court judgments, although in 2009
it signed (but still has not ratified) the Hague Convention on Choice of Court Agreements.150
§ 12 Uniform Acts
The Uniform Foreign Money-Judgments Recognition Act (“UFMJRA”),151 and its
updated version, the Uniform Foreign-Country Money Judgments Recognition Act
(“UFCMJRA”), provide for the enforcement of foreign-country judgments in state courts in the
United States.152 The former was promulgated in 1962, and the latter in 2005. Thirty-six U.S.
states and territories have enacted one of these two uniform acts.153
147 See Ronald A. Brand, Federal Judicial Center International Litigation Guide: Recognition and Enforcement of Foreign Judgments, 74 U. Pitt. L. Rev. 491, 494 (2013). 148 See Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH Act), Pub. L. 111-223 (Aug. 10, 2010), codified at 28 U.S.C. §§ 4101–4105 (2012). The SPEECH Act is discussed in Section 15, infra. The ALI’s proposal would establish uniform standards for the enforcement of a broad array of foreign judgments, including some forms of injunctions, declaratory relief, and penalties. S.I. Strong, Recognition and Enforcement of Foreign Judgments in U.S. Court: Problems and Possibilities, 33 Rev. Litig. 45, 92–96 (2014). 149 Yahoo! Inc. v. La Ligue Contre Le Racisme L’Antisemitisme, 433 F.3d 1199, 1213 (9th Cir. 2006). 150 Hague Conference on Private International Law, Status Table: Convention of 30 June 2005 on Choice of Court Agreements
(June 2, 2016), https://www.hcch.net/en/instruments/conventions/status-table/?cid=98. 151 Uniform Foreign Money-Judgments Recognition Act, Uniform Law Commission (1963). 152 Uniform Foreign-Country Money Judgments Recognition Act, Uniform Law Commission (2005). 153 The UFCMJRA has been enacted in Alabama, Arizona, California, Colorado, Delaware, the District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Michigan, Minnesota, Montana, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Texas, Virginia, and Washington. It has been introduced in Massachusetts and New Jersey. Uniform Law Commission, Legislative Fact Sheet: Foreign-Country Money Judgments Recognition Act, http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Foreign-Country%20Money%20Judgments%20Recognition%20Act. The UFMJRA remains in force in Alaska, Connecticut, Florida, Maine, Maryland, Massachusetts, Missouri, New Jersey, New York, Ohio, Pennsylvania, and the U.S. Virgin Islands. Uniform Law Commission, Legislative Fact Sheet: Uniform Foreign Money-Judgments Recognition Act, http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Foreign%20Money%20Judgments%20Recognition%20Act.
27
As a general matter, the uniform acts apply to judgments of any foreign state granting
or denying recovery of a sum of money that is final and conclusive and enforceable where
rendered.154 They exclude judgments for taxes, a fine or other penalty, or a judgment for
support in matrimonial or family law matters.155 Foreign judgments meeting the requirements
of the uniform acts are enforceable in the states that have adopted the statutes “in the same
manner as the judgment of a sister state which is entitled to full faith and credit.”156
The uniform acts provide mandatory and discretionary grounds for the non-recognition
of foreign court judgments. The mandatory grounds for non-recognition include:
(1) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
(2) The foreign court did not have personal jurisdiction over the defendant; or
(3) The foreign court did not have jurisdiction over the subject matter.157
Further, courts have discretion to refuse to enforce judgment if:
(1) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him or her to defend;
(2) The judgment was obtained by fraud;
(3) The cause of action on which the judgment is based is repugnant to the public policy of the enforcing state;
(4) The judgment conflicts with another final and conclusive judgment;
(5) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or
154 UFMJRA § 2; UFCMJRA § 3(a). 155 UFMJRA § 1; UFCMJRA § 3(b). 156 UFMJRA § 3; accord UFCMJRA § 7. 157 UFMJRA § 4; UFCMJRA § 4(b).
28
(6) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.158
The 2005 version of the uniform act, the UFCMJRA, was designed to address perceived
gaps and ambiguities in the UFMJRA.159 In particular, the UFCMJRA added a section setting
out the procedure for seeking recognition of a foreign judgment; clarified that the party seeking
recognition of a judgment bears the burden of showing that it is subject to the act, while the
party objecting to recognition bears the burden of establishing a particular ground for non-
recognition; and imposed a fifteen-year statute of limitations on judgments that have no statute
of limitations in their country of origin.160
In states that have not enacted one of the uniform acts, or for judgments not within the
scope of the statute (e.g., non-money judgments), a party may seek recognition and
enforcement under common law principles of comity.161 The United States Supreme Court
has described comity as “neither a matter of absolute obligation . . . nor of mere courtesy and
good will,” but rather “the recognition which one nation allows within its territory to the
legislative, executive or judicial acts of another nation, having due regard both to international
duty and convenience, and to the rights of its own citizens or of other persons who are under
the protections of its laws.”162 Each state looks to its own common law to determine what the
principles of comity require, and there have accordingly been varying approaches to
enforcement in the U.S. states not governed by the uniform acts.163
158 UFMJRA § 4; UFCMJRA § 4(c). 159 Melinda Luthin, U.S. Enforcement of Money Judgments & the Need for Reform, 14 U.C. Davis J. of Int’l L. & Pol’y 111, 137
(2007). 160 UFCMJRA §§ 6, 3(c), 4(d), 9; Uniform Law Commission, Foreign-Country Money Judgments Recognition Act Summary, http://www.uniformlaws.org/ActSummary.aspx?title=Foreign-Country%20Money%20Judgments%20Recognition%20Act. 161 Hilton v. Guyot, 159 U.S. 113, 164 (1895). 162 Id. at 163-64. 163 Luthin, supra note 159, at 116-17.
29
§ 13 Due Process Requirement
Under the UFMJRA and the UFCMJRA, a court must deny recognition and enforcement
of a foreign judgment if it is the product of a judicial system that does not have impartial
tribunals or procedures compatible with due process.164 This rule does not require the foreign
legal system producing a judgment to be identical to the U.S. system; the foreign system need
only be compatible in that it offers basic fairness.165 Essentially, the legal system of the country
that rendered the judgment must afford litigants notice and an opportunity to be heard.166 A
party seeking to avoid enforcement must show that the rendering country’s judicial system as
a whole—as opposed to just the procedures applied in that party’s case—failed to provide due
process.167 A U.S. court will deny recognition in case of “outrageous departures from our own
notions of civilized jurisprudence.”168 For example, the U.S. Court of Appeals for the Ninth
Circuit denied recognition of default judgments entered in an Iranian court, finding that the
record demonstrated trials in that country to be non-public, highly political, corrupt, and lacking
in judicial independence.169 This result, however, is uncommon.
§ 14 Reciprocity
The UFMJRA and the UFCMJRA do not include reciprocity requirements, though a
minority of states have imposed reciprocity requirements when adopting the acts.170
Massachusetts, for example, continues to make reciprocity a mandatory prerequisite to
enforcement, while Georgia eliminated the requirement when it replaced the UFMJRA with the
164 UFMJRA § 4; UFCMJRA § 4(b)(1). 165 Society of Lloyd’s v. Reinhart, 402 F.3d 982, 995 (10th Cir. 2005) (“slight differences between England’s and New Mexico’s laws do not trigger the public policy exception”). 166 Int’l Transactions, Ltd. v. Embotelladora Agral Regiomontana, SA de CV, 347 F.3d 589, 594 (5th Cir. 2003). 167 Society of Lloyd’s v. Turner, 303 F.3d 325, 330 (5th Cir. 2002) (The UFMJRA requires that “foreign judgment[s] be rendered only under a system that provides impartial tribunals and procedures compatible with due process of law”) (emphasis in
original) (internal quotation marks omitted). 168 British Midland Airways Ltd. v. Int’l Travel, Inc., 497 F.2d 869, 871 (9th Cir. 1974) (internal quotation marks omitted). 169 Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1412-13 (9th Cir. 1995). 170 UFCMJRA, Prefatory Note. A 2012 report for the Federal Judicial Center states that “seven of the states that have enacted the 1962 Recognition Act and one that has enacted the 2005 Recognition Act have included reciprocity as a ground for recognition.” Ronald A. Brand, Recognition and Enforcement of Foreign Judgments at 11, Federal Judicial Center International Litigation Guide (April 2012), https://www.fjc.gov/sites/default/files/2012/BrandEnforce.pdf.
30
UFCMJRA in 2015.171 Some states, including Florida, Maine, Ohio, and Texas, include lack of
reciprocity as a discretionary ground for refusing to recognize a foreign judgment.172 States
that require reciprocity ask that their courts check whether the foreign country in which a
judgment was rendered would enforce a U.S. judgment in return.173
§ 15 Public Policy and the First Amendment
The UFMJRA and UFCMJRA also allow U.S. courts to deny enforcement where the
cause of action on which a judgment is based is repugnant to the public policy of the enforcing
state.174 Mere differences between the laws of the issuing country and those of the enforcing
state are not sufficient to justify denial of recognition. For example, the grant of attorneys’ fees
and costs in a foreign judgment does not offend public policy simply because the fees and
costs would not be awarded in the U.S.175 Nor do the differences between how United States
and English courts view contract law create a public policy difference sufficient to allow a U.S.
court to refuse enforcement of an English judgment.176 It is only where a fundamental U.S.
policy is incompatible with the very cause of action on which the foreign judgment is based
that enforcement may be denied.177
This situation has frequently arisen in cases involving freedom of speech, such as Sarl
Louis Feraud Intern. v. Viewfinder, Inc., in which the Second Circuit held that a French
judgment for theft of intellectual property could not be enforced if it was inconsistent with the
defendant’s First Amendment Rights and remanded for further evidentiary findings and
171 Mass. Gen. Laws Ann. ch. 235, § 23A (West 2016); 2015 Ga. Act No. 167 (SB 65) enacted May 6, 2015. 172 Fla. Stat. Ann. §55.605(2)(g) (2016); Me. Rev. Stat. Ann. tit. 14, § 8505(2)(G) (West 2016); Ohio Rev. Code Ann. § 2329.92 (West 2016); 2017 Tex. Sess. Law Serv. Ch. 390 (S.B. 944) (West). In Royal Bank of Canada v. Trentham Corp., the Fifth Circuit instructed a district court in Texas to consider whether Canadian courts would enforce a U.S. judgment obtained through default in deciding whether to enforce a Canadian default judgment. 665 F.2d 515, 518–19 (5th Cir. 1981). 173 See Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 359 n.6 (10th Cir. 1996). 174 UFMJRA § 4; UFCMJRA § 4(c)(3). 175 Compania Radiodifusora Fronteriza v. Spann, 41 F. Supp. 907, 909 (N.D. Tex. 1941) (“The class of a suit, and its complexion, is not to be taken as determinative of its objectionableness so as to require a domestic court to deny recovery on a foreign judgment granting such recovery”). 176 Society of Lloyd’s v. Siemon-Netto, 457 F.3d 94, 100 (D.C. Cir. 2006). 177 See Bachchan v. India Abroad Pubs., Inc., 585 N.Y.S.2d 661 (N.Y. Sup. Ct. 1992) (refusing to enforce English libel judgment repugnant to the free-speech guarantees of the federal and New York constitutions).
31
analysis on that issue.178 In 2010, Congress passed the SPEECH Act, which made explicit
the unenforceability of foreign-court judgments contrary to the First Amendment.179 The
SPEECH Act prohibits state and federal courts from enforcing foreign defamation judgments
that would violate the First Amendment or similar constitutional or statutory provisions of the
state in which the enforcing court sits.180 The party seeking enforcement bears the burden to
show that the foreign judgment does not offend state and federal free-speech protections, and
“that the foreign court’s exercise of personal jurisdiction comported with the due process
requirements that are imposed on domestic courts by the Constitution of the United States.”181
§ 16 Procedure to Enforce Foreign Court Judgments
There are two basic procedural approaches to the enforcement of foreign court
judgments in the United States. The first, employed by states like New York and California,
requires the party seeking enforcement to initiate a legal action in a domestic court.182 This is
the procedure specified by the UFCMJRA.183 It involves the filing of a complaint, counterclaim,
cross-claim, or affirmative defense (or, in some states, a motion for summary judgment in lieu
of a complaint), which the judgment debtor will be required to answer within the standard time
limits specified by that state’s code of civil procedure.184 Given the limited number of defenses
available under the UFMJRA and the UFCMJRA, however, the new action will invariably be a
summary proceeding and result in a domestic judgment in favor of the party seeking
enforcement.
178 489 F.3d 474, 483-84 (2d Cir. 2007). 179 Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH Act), Pub. L. 111-223 (Aug. 10, 2010), codified at 28 U.S.C. §§ 4101–4105 (2012). 180 28 U.S.C. § 4102(a)(1). 181 Id. at 4102(a)(2), (b)(2). 182 See, e.g., Cal. Civ. Proc. Code § 1718; N.Y. C.P.L.R. § 5303. 183 UFCMJRA § 6. 184 Id.
32
The second procedure, followed in New Jersey, allows a party to seek enforcement by
registering an authenticated copy of the foreign judgment with the clerk of the court.185 Upon
registration, notice of the judgment is sent to the judgment debtor, who then has a chance to
respond and seek a stay of execution on the enforcement.186 Briefing on the motion for stay
will likely encompass the defenses to enforcement contained in the uniform acts.187 If the
judgment debtor fails to obtain the stay, the registered foreign judgment is to be treated in the
same manner as a judgment of any domestic court within the state and subjected to the use
of the same enforcement tools.188 Whichever procedural approach a state employs, the
substantive issues are likely to be the same.
§ 17 Choice of Court Convention
The Hague Convention on Choice of Court Agreements was concluded in 2005.189 The
United States signed the Convention on January 19, 2009, but has yet to ratify it.190 The
Choice of Court Convention entered into force in 2015, and its current parties are Mexico,
Singapore, and the European Union (except Denmark).191 Ukraine has also signed but not yet
ratified the Convention, and other countries are reportedly interested in joining.192
The Choice of Court Convention applies to international civil or commercial cases where
there is an exclusive choice of court agreement (i.e., forum selection clause).193 Where the
Convention applies, it provides in essence: (1) the court chosen by the parties in an exclusive
choice of court agreement has jurisdiction over a case brought before it; (2) if the parties have
185 See, e.g., N.J. Stat. § 2A:49A-27. This statute applies to the enforcement of judgments from both courts in other U.S. states and courts in other nations. See Enron Exploration & Prod. BV v. Clapp, 874 A.2d 561, 565 (N.J. Super. Ct. App. Div.
2005). 186 See, e.g., N.J. Stat. § 2A:49A-29. 187 See, e.g., id. . 188 See, e.g., id. at§ 2A:49A-27. 189 Hague Conference on Private International Law, Convention on Choice of Court Agreements, Jun. 30, 2005, 44 I.L.M.
1294, https://www.hcch.net/en/instruments/conventions/full-text/?cid=98. [Hereinafter “Convention on Choice of Court Agreements”]. 190 Id. 191 Id. 192 Ivan Shiu et al., New Life for the Hague Choice of Court Convention, Law360.com (Sept. 22, 2016), https://www.law360.com/articles/839457/new-life-for-hague-choice-of-court-convention. 193 Convention on Choice of Court Agreements, Art. 1.
33
entered into an exclusive choice of court agreement, a court not chosen does not have
jurisdiction and must suspend or dismiss the case; and (3) a judgment entered by the chosen
court must be recognized and enforced by the courts of other States that are parties to the
Convention.194 A judgment resulting from a choice of court agreement must be recognized
and enforced in other Contracting States provided that it would also be enforceable in the State
where it was entered.195 The Convention permits a court to refuse enforcement if:
The agreement is null and void under the law of the State of the chosen court;
A party lacked the capacity to conclude the agreement;
The defendant did not receive adequate notice of the underlying proceedings;
The judgment was obtained by fraud;
Enforcement would be “manifestly incompatible” with the public policy of the State in which the enforcement request is made; or
The judgment is inconsistent with an earlier judgment given in another State between the same parties.196
Recognition or enforcement of a judgment may also be refused to the extent that the judgment awards exemplary or punitive damages.197
194 Id. at Arts. 5–6 & 8. 195 Id. at Art. 8. 196 Id. at Art. 9. 197 Id. at Art. 11.
34
V. CONCLUDING REMARKS
In the United States, it is generally easier to enforce a foreign arbitral award than a
foreign court judgment. The New York Convention provides for a procedurally simple
mechanism and limits the available defenses. By contrast, the United States is not a party (at
least not yet) to any multilateral, regional, or bilateral agreements with foreign states for the
enforcement of foreign court judgments. While the Uniform Laws in effect in the United States
and principles of comity allow for the enforcement of foreign court judgments, the range of
potential defenses is substantially greater. For example, a party may challenge a judgment,
but not an arbitral award, on the grounds that it conflicts with another judgment or was obtained
in a seriously inconvenient forum.198 As for the Choice of Court Convention, even if it is ratified
by the United States, it will likely take many years, if ever, for the Convention to attain the level
of global acceptance of the New York Convention. Of course, the efficacy of the Choice of
Court Convention remains to be demonstrated.
198 UFMJRA § 4.
APPENDIX A
T. 9, Refs & Annos, 9 USCA Refs & Annos
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration
9 U.S.C.A. Refs & AnnosCurrentness
ENACTMENT OF TITLE 9<Positive Law; Citation. This title has been made positive law by section 1 of Act July 30, 1947, c. 392, § 1, 61Stat. 674, which provided in part that: “title 9 of the United States Code, entitled ‘Arbitration’, is codified andenacted into positive law and may be cited as ‘9 U.S.C. § ___’.”>
<Repeals. Section 2 of Act July 30, 1947, c. 392, 61 Stat. 669, provided in part: “The sections or parts thereofof the Statutes at Large covering provisions codified in this Act, insofar as such provisions appear in title 9,United States Code and supplements thereto, as shown by the appended table, are hereby repealed: Provided,That any rights or liabilities now existing under such repeal sections or parts thereof shall not be affected bysuch repeal.”>
9 U.S.C.A. Refs & Annos, 9 USCA Refs & AnnosCurrent through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
T. 9, Disp Table, 9 USCA Disp Table
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration
9 U.S.C.A. Disp TableCurrentness
TABLEShowing where former sections of Title 9 and the laws from which such former sections were derived, havebeen incorporated in revised Title 9.
Title 9
Revised Statutes
Title 9
Former Sections
Statutes at Large
New Sections
1.............................................
Feb. 12, 1925, c. 213, § 1, 43 Stat. 883...............................
............................................. 1
2.............................................
Feb. 12, 1925, c. 213, § 2, 43 Stat. 883...............................
............................................. 2
3.............................................
Feb. 12, 1925, c. 213, § 3, 43 Stat. 883...............................
............................................. 3
4.............................................
Feb. 12, 1925, c. 213, § 4, 43 Stat. 883...............................
............................................. 4
5.............................................
Feb. 12, 1925, c. 213, § 5, 43 Stat. 884...............................
............................................. 5
6.............................................
Feb. 12, 1925, c. 213, § 6, 43 Stat. 884...............................
............................................. 6
7.............................................
Feb. 12, 1925, c. 213, § 7, 43 Stat. 884...............................
............................................. 7
8.............................................
Feb. 12, 1925, c. 213, § 8, 43 Stat. 884...............................
............................................. 8
9.............................................
Feb. 12, 1925, c. 213, § 9, 43 Stat. 885...............................
............................................. 9
10...........................................
Feb. 12, 1925, c. 213, § 10, 43 Stat. 885.............................
........................................... 10
11...........................................
Feb. 12, 1925, c. 213, § 11, 43 Stat. 885.............................
........................................... 11
12...........................................
Feb. 12, 1925, c. 213, § 12, 43 Stat. 885.............................
........................................... 12
13...........................................
Feb. 12, 1925, c. 213, § 13, 43 Stat. 886.............................
........................................... 13
14...........................................
Feb. 12, 1925, c. 213, § 14, 43 Stat. 886.............................
........................................Rep.
15...........................................
Feb. 12, 1925, c. 213, § 15, 43 Stat. 886.............................
........................................... 14
9 U.S.C.A. Disp Table, 9 USCA Disp TableCurrent through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
T. 9, Ch. 1, Refs & Annos, 9 USCA Ch. 1, Refs & Annos
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration
Chapter 1. General Provisions
9 U.S.C.A. Ch. 1, Refs & AnnosCurrentness
9 U.S.C.A. Ch. 1, Refs & Annos, 9 USCA Ch. 1, Refs & AnnosCurrent through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 1. “Maritime transactions” and “commerce” defined; exceptions to..., 9 USCA § 1
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 1
§ 1. “Maritime transactions” and “commerce” defined; exceptions to operation of title
Currentness
“Maritime transactions”, as herein defined, means charter parties, bills of lading of water carriers, agreements relatingto wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters in foreign commerce which,if the subject of controversy, would be embraced within admiralty jurisdiction; “commerce”, as herein defined, meanscommerce among the several States or with foreign nations, or in any Territory of the United States or in the District ofColumbia, or between any such Territory and another, or between any such Territory and any State or foreign nation,or between the District of Columbia and any State or Territory or foreign nation, but nothing herein contained shallapply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign orinterstate commerce.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 670.)
Notes of Decisions (275)
9 U.S.C.A. § 1, 9 USCA § 1Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 2. Validity, irrevocability, and enforcement of agreements to arbitrate, 9 USCA § 2
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment
Unconstitutional or PreemptedLimitation Recognized by Courville v. Allied Professionals Ins. Co., La.App. 1 Cir., June 05, 2015
KeyCite Yellow Flag - Negative TreatmentProposed Legislation
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 2
§ 2. Validity, irrevocability, and enforcement of agreements to arbitrate
Currentness
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settleby arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the wholeor any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such acontract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law orin equity for the revocation of any contract.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 670.)
Notes of Decisions (3350)
9 U.S.C.A. § 2, 9 USCA § 2Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 3. Stay of proceedings where issue therein referable to arbitration, 9 USCA § 3
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 3
§ 3. Stay of proceedings where issue therein referable to arbitration
Currentness
If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitrationunder an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied thatthe issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on applicationof one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of theagreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 670.)
Notes of Decisions (851)
9 U.S.C.A. § 3, 9 USCA § 3Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 4. Failure to arbitrate under agreement; petition to United States..., 9 USCA § 4
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 4
§ 4. Failure to arbitrate under agreement; petition to United States court having jurisdictionfor order to compel arbitration; notice and service thereof; hearing and determination
Currentness
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement forarbitration may petition any United States district court which, save for such agreement, would have jurisdiction undertitle 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties,for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days' notice inwriting of such application shall be served upon the party in default. Service thereof shall be made in the manner providedby the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making ofthe agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directingthe parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, undersuch agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If themaking of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shallproceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matterin dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, theparty alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of application,demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues toa jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose. Ifthe jury find that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder,the proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in writing and that thereis a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with thearbitration in accordance with the terms thereof.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 671; Sept. 3, 1954, c. 1263, § 19, 68 Stat. 1233.)
Notes of Decisions (1200)
9 U.S.C.A. § 4, 9 USCA § 4Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 5. Appointment of arbitrators or umpire, 9 USCA § 5
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 5
§ 5. Appointment of arbitrators or umpire
Currentness
If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire,such method shall be followed; but if no method be provided therein, or if a method be provided and any party theretoshall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitratoror arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the courtshall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under thesaid agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwiseprovided in the agreement the arbitration shall be by a single arbitrator.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 671.)
Notes of Decisions (114)
9 U.S.C.A. § 5, 9 USCA § 5Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 6. Application heard as motion, 9 USCA § 6
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 6
§ 6. Application heard as motion
Currentness
Any application to the court hereunder shall be made and heard in the manner provided by law for the making andhearing of motions, except as otherwise herein expressly provided.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 671.)
Notes of Decisions (15)
9 U.S.C.A. § 6, 9 USCA § 6Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 7. Witnesses before arbitrators; fees; compelling attendance, 9 USCA § 7
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 7
§ 7. Witnesses before arbitrators; fees; compelling attendance
Currentness
The arbitrators selected either as prescribed in this title or otherwise, or a majority of them, may summon in writingany person to attend before them or any of them as a witness and in a proper case to bring with him or them any book,record, document, or paper which may be deemed material as evidence in the case. The fees for such attendance shallbe the same as the fees of witnesses before masters of the United States courts. Said summons shall issue in the name ofthe arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, andshall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before thecourt; if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition theUnited States district court for the district in which such arbitrators, or a majority of them, are sitting may compel theattendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contemptin the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusalto attend in the courts of the United States.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 672; Oct. 31, 1951, c. 655, § 14, 65 Stat. 715.)
Notes of Decisions (48)
9 U.S.C.A. § 7, 9 USCA § 7Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 8. Proceedings begun by libel in admiralty and seizure of vessel or property, 9 USCA § 8
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 8
§ 8. Proceedings begun by libel in admiralty and seizure of vessel or property
Currentness
If the basis of jurisdiction be a cause of action otherwise justiciable in admiralty, then, notwithstanding anything hereinto the contrary, the party claiming to be aggrieved may begin his proceeding hereunder by libel and seizure of the vesselor other property of the other party according to the usual course of admiralty proceedings, and the court shall thenhave jurisdiction to direct the parties to proceed with the arbitration and shall retain jurisdiction to enter its decree uponthe award.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 672.)
Notes of Decisions (65)
9 U.S.C.A. § 8, 9 USCA § 8Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 9. Award of arbitrators; confirmation; jurisdiction; procedure, 9 USCA § 9
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment
Unconstitutional or PreemptedLimitation Recognized by Hancor, Inc. v. R & R Engineering Products, Inc., D.Puerto Rico, Aug. 02, 2005
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 9
§ 9. Award of arbitrators; confirmation; jurisdiction; procedure
Currentness
If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuantto the arbitration, and shall specify the court, then at any time within one year after the award is made any party to thearbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grantsuch an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If nocourt is specified in the agreement of the parties, then such application may be made to the United States court in andfor the district within which such award was made. Notice of the application shall be served upon the adverse party, andthereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. If theadverse party is a resident of the district within which the award was made, such service shall be made upon the adverseparty or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverseparty shall be a nonresident, then the notice of the application shall be served by the marshal of any district within whichthe adverse party may be found in like manner as other process of the court.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 672.)
Notes of Decisions (460)
9 U.S.C.A. § 9, 9 USCA § 9Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 10. Same; vacation; grounds; rehearing, 9 USCA § 10
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 10
§ 10. Same; vacation; grounds; rehearing
Effective: May 7, 2002Currentness
(a) In any of the following cases the United States court in and for the district wherein the award was made may makean order vacating the award upon the application of any party to the arbitration--
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown,or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which therights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definiteaward upon the subject matter submitted was not made.
(b) If an award is vacated and the time within which the agreement required the award to be made has not expired, thecourt may, in its discretion, direct a rehearing by the arbitrators.
(c) The United States district court for the district wherein an award was made that was issued pursuant to section 580of title 5 may make an order vacating the award upon the application of a person, other than a party to the arbitration,who is adversely affected or aggrieved by the award, if the use of arbitration or the award is clearly inconsistent withthe factors set forth in section 572 of title 5.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 672; Pub.L. 101-552, § 5, Nov. 15, 1990, 104 Stat. 2745; Pub.L. 102-354, § 5(b)(4), Aug.26, 1992, 106 Stat. 946; Pub.L. 107-169, § 1, May 7, 2002, 116 Stat. 132.)
Notes of Decisions (1682)
§ 10. Same; vacation; grounds; rehearing, 9 USCA § 10
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 2
9 U.S.C.A. § 10, 9 USCA § 10Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 11. Same; modification or correction; grounds; order, 9 USCA § 11
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 11
§ 11. Same; modification or correction; grounds; order
Currentness
In either of the following cases the United States court in and for the district wherein the award was made may make anorder modifying or correcting the award upon the application of any party to the arbitration--
(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description ofany person, thing, or property referred to in the award.
(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the meritsof the decision upon the matter submitted.
(c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 673.)
Notes of Decisions (86)
9 U.S.C.A. § 11, 9 USCA § 11Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 12. Notice of motions to vacate or modify; service; stay of proceedings, 9 USCA § 12
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 12
§ 12. Notice of motions to vacate or modify; service; stay of proceedings
Currentness
Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney withinthree months after the award is filed or delivered. If the adverse party is a resident of the district within which the awardwas made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice ofmotion in an action in the same court. If the adverse party shall be a nonresident then the notice of the application shallbe served by the marshal of any district within which the adverse party may be found in like manner as other processof the court. For the purposes of the motion any judge who might make an order to stay the proceedings in an actionbrought in the same court may make an order, to be served with the notice of motion, staying the proceedings of theadverse party to enforce the award.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 673.)
Notes of Decisions (95)
9 U.S.C.A. § 12, 9 USCA § 12Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 13. Papers filed with order on motions; judgment; docketing; force..., 9 USCA § 13
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 13
§ 13. Papers filed with order on motions; judgment; docketing; force and effect; enforcement
Currentness
The party moving for an order confirming, modifying, or correcting an award shall, at the time such order is filed withthe clerk for the entry of judgment thereon, also file the following papers with the clerk:
(a) The agreement; the selection or appointment, if any, of an additional arbitrator or umpire; and each written extensionof the time, if any, within which to make the award.
(b) The award.
(c) Each notice, affidavit, or other paper used upon an application to confirm, modify, or correct the award, and a copyof each order of the court upon such an application.
The judgment shall be docketed as if it was rendered in an action.
The judgment so entered shall have the same force and effect, in all respects, as, and be subject to all the provisions oflaw relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court inwhich it is entered.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 673.)
Notes of Decisions (16)
9 U.S.C.A. § 13, 9 USCA § 13Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 14. Contracts not affected, 9 USCA § 14
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 14
§ 14. Contracts not affected
Currentness
This title shall not apply to contracts made prior to January 1, 1926.
CREDIT(S)
(July 30, 1947, c. 392, 61 Stat. 674.)
Notes of Decisions (2)
9 U.S.C.A. § 14, 9 USCA § 14Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 15. Inapplicability of the Act of State doctrine, 9 USCA § 15
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 15
§ 15. Inapplicability of the Act of State doctrine
Currentness
Enforcement of arbitral agreements, confirmation of arbitral awards, and execution upon judgments based on ordersconfirming such awards shall not be refused on the basis of the Act of State doctrine.
CREDIT(S)
(Added Pub.L. 100-669, § 1, Nov. 16, 1988, 102 Stat. 3969.)
Notes of Decisions (1)
9 U.S.C.A. § 15, 9 USCA § 15Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 16. Appeals, 9 USCA § 16
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 1. General Provisions (Refs & Annos)
9 U.S.C.A. § 16
§ 16. Appeals
Currentness
(a) An appeal may be taken from--
(1) an order--
(A) refusing a stay of any action under section 3 of this title,
(B) denying a petition under section 4 of this title to order arbitration to proceed,
(C) denying an application under section 206 of this title to compel arbitration,
(D) confirming or denying confirmation of an award or partial award, or
(E) modifying, correcting, or vacating an award;
(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject tothis title; or
(3) a final decision with respect to an arbitration that is subject to this title.
(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order--
(1) granting a stay of any action under section 3 of this title;
(2) directing arbitration to proceed under section 4 of this title;
(3) compelling arbitration under section 206 of this title; or
(4) refusing to enjoin an arbitration that is subject to this title.
§ 16. Appeals, 9 USCA § 16
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 2
CREDIT(S)
(Added Pub.L. 100-702, Title X, § 1019(a), Nov. 19, 1988, 102 Stat. 4670, § 15; renumbered § 16, Pub.L. 101-650, TitleIII, § 325(a)(1), Dec. 1, 1990, 104 Stat. 5120.)
Notes of Decisions (209)
9 U.S.C.A. § 16, 9 USCA § 16Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
T. 9, Ch. 2, Refs & Annos, 9 USCA Ch. 2, Refs & Annos
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration
Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards
9 U.S.C.A. Ch. 2, Refs & AnnosCurrentness
9 U.S.C.A. Ch. 2, Refs & Annos, 9 USCA Ch. 2, Refs & AnnosCurrent through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 201. Enforcement of Convention, 9 USCA § 201
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Refs & Annos)
9 U.S.C.A. § 201
§ 201. Enforcement of Convention
Currentness
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforcedin United States courts in accordance with this chapter.
CREDIT(S)
(Added Pub.L. 91-368, § 1, July 31, 1970, 84 Stat. 692.)
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
The above referenced treaty will no longer be updated.
Notes of Decisions (200)
9 U.S.C.A. § 201, 9 USCA § 201Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 202. Agreement or award falling under the Convention, 9 USCA § 202
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment
Unconstitutional or PreemptedLimitation Recognized by Scott v. Louisville Bedding Co., Ky.App., July 12, 2013
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Refs & Annos)
9 U.S.C.A. § 202
§ 202. Agreement or award falling under the Convention
Currentness
An arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which isconsidered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls underthe Convention. An agreement or award arising out of such a relationship which is entirely between citizens of theUnited States shall be deemed not to fall under the Convention unless that relationship involves property located abroad,envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states.For the purpose of this section a corporation is a citizen of the United States if it is incorporated or has its principalplace of business in the United States.
CREDIT(S)
(Added Pub.L. 91-368, § 1, July 31, 1970, 84 Stat. 692.)
Notes of Decisions (144)
9 U.S.C.A. § 202, 9 USCA § 202Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 203. Jurisdiction; amount in controversy, 9 USCA § 203
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Refs & Annos)
9 U.S.C.A. § 203
§ 203. Jurisdiction; amount in controversy
Currentness
An action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the UnitedStates. The district courts of the United States (including the courts enumerated in section 460 of title 28) shall haveoriginal jurisdiction over such an action or proceeding, regardless of the amount in controversy.
CREDIT(S)
(Added Pub.L. 91-368, § 1, July 31, 1970, 84 Stat. 692.)
Notes of Decisions (35)
9 U.S.C.A. § 203, 9 USCA § 203Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 204. Venue, 9 USCA § 204
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Refs & Annos)
9 U.S.C.A. § 204
§ 204. Venue
Currentness
An action or proceeding over which the district courts have jurisdiction pursuant to section 203 of this title may bebrought in any such court in which save for the arbitration agreement an action or proceeding with respect to thecontroversy between the parties could be brought, or in such court for the district and division which embraces the placedesignated in the agreement as the place of arbitration if such place is within the United States.
CREDIT(S)
(Added Pub.L. 91-368, § 1, July 31, 1970, 84 Stat. 692.)
Notes of Decisions (11)
9 U.S.C.A. § 204, 9 USCA § 204Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 205. Removal of cases from State courts, 9 USCA § 205
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Refs & Annos)
9 U.S.C.A. § 205
§ 205. Removal of cases from State courts
Currentness
Where the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or awardfalling under the Convention, the defendant or the defendants may, at any time before the trial thereof, remove suchaction or proceeding to the district court of the United States for the district and division embracing the place where theaction or proceeding is pending. The procedure for removal of causes otherwise provided by law shall apply, except thatthe ground for removal provided in this section need not appear on the face of the complaint but may be shown in thepetition for removal. For the purposes of Chapter 1 of this title any action or proceeding removed under this sectionshall be deemed to have been brought in the district court to which it is removed.
CREDIT(S)
(Added Pub.L. 91-368, § 1, July 31, 1970, 84 Stat. 692.)
Notes of Decisions (49)
9 U.S.C.A. § 205, 9 USCA § 205Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 206. Order to compel arbitration; appointment of arbitrators, 9 USCA § 206
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Refs & Annos)
9 U.S.C.A. § 206
§ 206. Order to compel arbitration; appointment of arbitrators
Currentness
A court having jurisdiction under this chapter may direct that arbitration be held in accordance with the agreement atany place therein provided for, whether that place is within or without the United States. Such court may also appointarbitrators in accordance with the provisions of the agreement.
CREDIT(S)
(Added Pub.L. 91-368, § 1, July 31, 1970, 84 Stat. 693.)
Notes of Decisions (43)
9 U.S.C.A. § 206, 9 USCA § 206Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 207. Award of arbitrators; confirmation; jurisdiction; proceeding, 9 USCA § 207
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Refs & Annos)
9 U.S.C.A. § 207
§ 207. Award of arbitrators; confirmation; jurisdiction; proceeding
Currentness
Within three years after an arbitral award falling under the Convention is made, any party to the arbitration may applyto any court having jurisdiction under this chapter for an order confirming the award as against any other party to thearbitration. The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognitionor enforcement of the award specified in the said Convention.
CREDIT(S)
(Added Pub.L. 91-368, § 1, July 31, 1970, 84 Stat. 693.)
Notes of Decisions (215)
9 U.S.C.A. § 207, 9 USCA § 207Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 208. Chapter 1; residual application, 9 USCA § 208
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Refs & Annos)
9 U.S.C.A. § 208
§ 208. Chapter 1; residual application
Currentness
Chapter 1 applies to actions and proceedings brought under this chapter to the extent that chapter is not in conflict withthis chapter or the Convention as ratified by the United States.
CREDIT(S)
(Added Pub.L. 91-368, § 1, July 31, 1970, 84 Stat. 693.)
Notes of Decisions (6)
9 U.S.C.A. § 208, 9 USCA § 208Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
T. 9, Ch. 3, Refs & Annos, 9 USCA Ch. 3, Refs & Annos
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration
Chapter 3. Inter-American Convention on International Commercial Arbitration
9 U.S.C.A. Ch. 3, Refs & AnnosCurrentness
9 U.S.C.A. Ch. 3, Refs & Annos, 9 USCA Ch. 3, Refs & AnnosCurrent through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 301. Enforcement of Convention, 9 USCA § 301
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 3. Inter-American Convention on International Commercial Arbitration (Refs & Annos)
9 U.S.C.A. § 301
§ 301. Enforcement of Convention
Currentness
The Inter-American Convention on International Commercial Arbitration of January 30, 1975, shall be enforced inUnited States courts in accordance with this chapter.
CREDIT(S)
(Added Pub.L. 101-369, § 1, Aug. 15, 1990, 104 Stat. 448.)
INTER-AMERICAN CONVENTION ON INTERNATIONAL COMMERCIAL ARBITRATION
The above referenced treaty will no longer be updated.
Notes of Decisions (12)
9 U.S.C.A. § 301, 9 USCA § 301Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 302. Incorporation by reference, 9 USCA § 302
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 3. Inter-American Convention on International Commercial Arbitration (Refs & Annos)
9 U.S.C.A. § 302
§ 302. Incorporation by reference
Currentness
Sections 202, 203, 204, 205, and 207 of this title shall apply to this chapter as if specifically set forth herein, except thatfor the purposes of this chapter “the Convention” shall mean the Inter-American Convention.
CREDIT(S)
(Added Pub.L. 101-369, § 1, Aug. 15, 1990, 104 Stat. 448.)
Notes of Decisions (1)
9 U.S.C.A. § 302, 9 USCA § 302Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 303. Order to compel arbitration; appointment of arbitrators; locale, 9 USCA § 303
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 3. Inter-American Convention on International Commercial Arbitration (Refs & Annos)
9 U.S.C.A. § 303
§ 303. Order to compel arbitration; appointment of arbitrators; locale
Currentness
(a) A court having jurisdiction under this chapter may direct that arbitration be held in accordance with the agreementat any place therein provided for, whether that place is within or without the United States. The court may also appointarbitrators in accordance with the provisions of the agreement.
(b) In the event the agreement does not make provision for the place of arbitration or the appointment of arbitrators,the court shall direct that the arbitration shall be held and the arbitrators be appointed in accordance with Article 3 ofthe Inter-American Convention.
CREDIT(S)
(Added Pub.L. 101-369, § 1, Aug. 15, 1990, 104 Stat. 448.)
9 U.S.C.A. § 303, 9 USCA § 303Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 304. Recognition and enforcement of foreign arbitral decisions..., 9 USCA § 304
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 3. Inter-American Convention on International Commercial Arbitration (Refs & Annos)
9 U.S.C.A. § 304
§ 304. Recognition and enforcement of foreign arbitral decisions and awards; reciprocity
Currentness
Arbitral decisions or awards made in the territory of a foreign State shall, on the basis of reciprocity, be recognized andenforced under this chapter only if that State has ratified or acceded to the Inter-American Convention.
CREDIT(S)
(Added Pub.L. 101-369, § 1, Aug. 15, 1990, 104 Stat. 449.)
Notes of Decisions (7)
9 U.S.C.A. § 304, 9 USCA § 304Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 305. Relationship between the Inter-American Convention and the..., 9 USCA § 305
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 3. Inter-American Convention on International Commercial Arbitration (Refs & Annos)
9 U.S.C.A. § 305
§ 305. Relationship between the Inter-American Convention and the Conventionon the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958
Currentness
When the requirements for application of both the Inter-American Convention and the Convention on the Recognitionand Enforcement of Foreign Arbitral Awards of June 10, 1958, are met, determination as to which Convention appliesshall, unless otherwise expressly agreed, be made as follows:
(1) If a majority of the parties to the arbitration agreement are citizens of a State or States that have ratified or accededto the Inter-American Convention and are member States of the Organization of American States, the Inter-AmericanConvention shall apply.
(2) In all other cases the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10,1958, shall apply.
CREDIT(S)
(Added Pub.L. 101-369, § 1, Aug. 15, 1990, 104 Stat. 449.)
Notes of Decisions (11)
9 U.S.C.A. § 305, 9 USCA § 305Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 306. Applicable rules of Inter-American Commercial Arbitration..., 9 USCA § 306
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 3. Inter-American Convention on International Commercial Arbitration (Refs & Annos)
9 U.S.C.A. § 306
§ 306. Applicable rules of Inter-American Commercial Arbitration Commission
Currentness
(a) For the purposes of this chapter the rules of procedure of the Inter-American Commercial Arbitration Commissionreferred to in Article 3 of the Inter-American Convention shall, subject to subsection (b) of this section, be those rulesas promulgated by the Commission on July 1, 1988.
(b) In the event the rules of procedure of the Inter-American Commercial Arbitration Commission are modified oramended in accordance with the procedures for amendment of the rules of that Commission, the Secretary of State,by regulation in accordance with section 553 of title 5, consistent with the aims and purposes of this Convention, mayprescribe that such modifications or amendments shall be effective for purposes of this chapter.
CREDIT(S)
(Added Pub.L. 101-369, § 1, Aug. 15, 1990, 104 Stat. 449.)
9 U.S.C.A. § 306, 9 USCA § 306Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 307. Chapter 1; residual application, 9 USCA § 307
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
United States Code AnnotatedTitle 9. Arbitration (Refs & Annos)
Chapter 3. Inter-American Convention on International Commercial Arbitration (Refs & Annos)
9 U.S.C.A. § 307
§ 307. Chapter 1; residual application
Currentness
Chapter 1 applies to actions and proceedings brought under this chapter to the extent chapter 1 is not in conflict withthis chapter or the Inter-American Convention as ratified by the United States.
CREDIT(S)
(Added Pub.L. 101-369, § 1, Aug. 15, 1990, 104 Stat. 449.)
Notes of Decisions (5)
9 U.S.C.A. § 307, 9 USCA § 307Current through P.L. 115-61. Also includes P.L. 115-63 to 115-68. Title 26 current through P.L. 115-68.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX B
APPENDIX C
A/CN.9/909
V.17-02564 14/29
State Signature
Ratification, Accession(*),
Approval(†),
Acceptance(‡)
or Succession(§) Entry into Force
United Kingdom of Great
Britain and Northern
Ireland
17 March 2015
United States of America 17 March 2015
Parties: 3
K. Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (New York, 1958)
State Signature
Ratification,
Accession(*), Approval(†),
Acceptance(‡) or Succession(§) Entry into force
Afghanistana,c
30 November 2004(*)
28 February 2005
Albania 27 June 2001(*)
25 September 2001
Algeriaa,c
7 February 1989(*)
8 May 1989
Andorra 19 June 2015 17 September 2015
Angola 6 March 2017 4 June 2017
Antigua and Barbudaa,c
2 February 1989(*)
3 May 1989
Argentinaa,c
26 August 1958 14 March 1989 12 June 1989
Armeniaa,c
29 December 1997(*)
29 March 1998
Australia 26 March 1975(*)
24 June 1975
Austria 2 May 1961(*)
31 July 1961
Azerbaijan 29 February 2000(*)
29 May 2000
Bahamas 20 December 2006(*)
20 March 2007
Bahraina,c
6 April 1988(*)
5 July 1988
Bangladesh 6 May 1992(*)
4 August 1992
Barbadosa,c
16 March 1993(*)
14 June 1993
Belarusb 29 December 1958 15 November 1960 13 February 1961
Belgiuma 10 June 1958 18 August 1975 16 November 1975
Benin 16 May 1974(*)
14 August 1974
Bhutana,c
25 September 2014(*)
24 December 2014
Bolivia (Plurinational
State of)
28 April 1995(*)
27 July 1995
Bosnia and Herzegovinaa,c,i
1 September 1993(§)
6 March 1992
Botswanaa,c
20 December 1971(*)
19 March 1972
Brazil 7 June 2002(*)
5 September 2002
Brunei Darussalama 25 July 1996
(*) 23 October 1996
Bulgariaa,b
17 December 1958 10 October 1961 8 January 1962
Burkina Faso 23 March 1987(*)
21 June 1987
Burundic 23 June 2014
(*) 21 September 2014
Cambodia 5 January 1960(*)
4 April 1960
Cameroon 19 February 1988(*)
19 May 1988
Canadad 12 May 1986
(*) 10 August 1986
Central African Republica,c
15 October 1962(*)
13 January 1963
A/CN.9/909
15/29 V.17-02564
State Signature
Ratification,
Accession(*), Approval(†),
Acceptance(‡) or Succession(§) Entry into force
Chile 4 September 1975(*)
3 December 1975
Chinaa,c,h
22 January 1987(*)
22 April 1987
Colombia 25 September 1979(*)
24 December 1979
Comoros 28 April 2015 27 July 2015
Cook Islands 12 January 2009(*)
12 April 2009
Costa Rica 10 June 1958 26 October 1987 24 January 1988
Côte d’Ivoire 1 February 1991(*)
2 May 1991
Croatiaa,c,i
26 July 1993(§)
8 October 1991
Cubaa,c
30 December 1974(*)
30 March 1975
Cyprusa,c
29 December 1980(*)
29 March 1981
Czechiaa,b
30 September 1993(§)
1 January 1993
Democratic Republic of
the Congo
5 November 2014(*)
3 February 2015
Denmarka,c,f
22 December 1972(*)
22 March 1973
Djiboutia,c
14 June 1983(§)
27 June 1977
Dominica 28 October 1988(*)
26 January 1989
Dominican Republic 11 April 2002(*)
10 July 2002
Ecuadora,c
17 December 1958 3 January 1962 3 April 1962
Egypt 9 March 1959(*)
7 June 1959
El Salvador 10 June 1958 26 February 1998 27 May 1998
Estonia 30 August 1993(*)
28 November 1993
Fiji 27 September 2010(*)
26 December 2010
Finland 29 December 1958 19 January 1962 19 April 1962
Francea 25 November 1958 26 June 1959 24 September 1959
Gabon 15 December 2006(*)
15 March 2007
Georgia 2 June 1994(*)
31 August 1994
Germany 10 June 1958 30 June 1961 28 September 1961
Ghana 9 April 1968(*)
8 July 1968
Greecea,c
16 July 1962(*)
14 October 1962
Guatemalaa,c
21 March 1984(*)
19 June 1984
Guinea 23 January 1991(*)
23 April 1991
Guyana 25 September 2014(*)
24 December 2014
Haiti 5 December 1983(*)
4 March 1984
Holy Seea,c
14 May 1975(*)
12 August 1975
Honduras 3 October 2000(*)
1 January 2001
Hungarya,c
5 March 1962(*)
3 June 1962
Iceland 24 January 2002(*)
24 April 2002
Indiaa,c
10 June 1958 13 July 1960 11 October 1960
Indonesiaa,c
7 October 1981(*)
5 January 1982
Iran (Islamic
Republic of)a,c
15 October 2001(*)
13 January 2002
Irelanda 12 May 1981
(*) 10 August 1981
Israel 10 June 1958 5 January 1959 7 June 1959
A/CN.9/909
V.17-02564 16/29
State Signature
Ratification,
Accession(*), Approval(†),
Acceptance(‡) or Succession(§) Entry into force
Italy 31 January 1969(*)
1 May 1969
Jamaicaa,c
10 July 2002(*)
8 October 2002
Japana 20 June 1961
(*) 18 September 1961
Jordan 10 June 1958 15 November 1979 13 February 1980
Kazakhstan 20 November 1995(*)
18 February 1996
Kenyaa 10 February 1989
(*) 11 May 1989
Kuwaita 28 April 1978
(*) 27 July 1978
Kyrgyzstan 18 December 1996(*)
18 March 1997
Lao People’s Democratic
Republic
17 June 1998(*)
15 September 1998
Latvia 14 April 1992(*)
13 July 1992
Lebanona 11 August 1998
(*) 9 November 1998
Lesotho 13 June 1989(*)
11 September 1989
Liberia 16 September 2005(*)
15 December 2005
Liechtensteina 7 July 2011
(*) 5 October 2011
Lithuaniab 14 March 1995
(*) 12 June 1995
Luxembourga 11 November 1958 9 September 1983 8 December 1983
Madagascara,c
16 July 1962(*)
14 October 1962
Malaysiaa,c
5 November 1985(*)
3 February 1986
Mali 8 September 1994(*)
7 December 1994
Maltaa,i
22 June 2000(*)
20 September 2000
Marshall Islands 21 December 2006(*)
21 March 2007
Mauritania 30 January 1997(*)
30 April 1997
Mauritius 19 June 1996(*)
17 September 1996
Mexico 14 April 1971(*)
13 July 1971
Monacoa,c
31 December 1958 2 June 1982 31 August 1982
Mongoliaa,c
24 October 1994(*)
22 January 1995
Montenegroa,c,i
23 October 2006(§)
3 June 2006
Moroccoa 12 February 1959
(*) 7 June 1959
Mozambiquea 11 June 1998
(*) 9 September 1998
Myanmar 16 April 2013(*)
15 July 2013
Nepala,c
4 March 1998(*)
2 June 1998
Netherlandsa,e
10 June 1958 24 April 1964 23 July 1964
New Zealanda 6 January 1983
(*) 6 April 1983
Nicaragua 24 September 2003(*)
23 December 2003
Niger 14 October 1964(*)
12 January 1965
Nigeriaa,c
17 March 1970(*)
15 June 1970
Norwaya,j
14 March 1961(*)
12 June 1961
Oman 25 February 1999(*)
26 May 1999
Pakistana 30 December 1958 14 July 2005 12 October 2005
Panama 10 October 1984(*)
8 January 1985
Paraguay 8 October 1997(*)
6 January 1998
Peru 7 July 1988(*)
5 October 1988
A/CN.9/909
17/29 V.17-02564
State Signature
Ratification,
Accession(*), Approval(†),
Acceptance(‡) or Succession(§) Entry into force
Philippinesa,c
10 June 1958 6 July 1967 4 October 1967
Polanda,c
10 June 1958 3 October 1961 1 January 1962
Portugala 18 October 1994
(*) 16 January 1995
Qatar 30 December 2002(*)
30 March 2003
Republic of Koreaa,c
8 February 1973(*)
9 May 1973
Republic of Moldovaa,i
18 September 1998(*)
17 December 1998
Romaniaa,b,c
13 September 1961(*)
12 December 1961
Russian Federationb 29 December 1958 24 August 1960 22 November 1960
Rwanda 31 October 2008 29 January 2009
Saint Vincent and the
Grenadinesa,c
12 September 2000(*)
11 December 2000
San Marino 17 May 1979(*)
15 August 1979
Sao Tome and Principe 20 November 2012(*)
18 February 2013
Saudi Arabiaa 19 April 1994
(*) 18 July 1994
Senegal 17 October 1994(*)
15 January 1995
Serbiaa,c,i
12 March 2001(§)
27 April 1992
Singaporea 21 August 1986
(*) 19 November 1986
Slovakiaa,b
28 May 1993(§)
1 January 1993
Sloveniai 6 July 1992
(§) 25 June 1991
South Africa 3 May 1976(*)
1 August 1976
Spain 12 May 1977(*)
10 August 1977
Sri Lanka 30 December 1958 9 April 1962 8 July 1962
State of Palestine 2 January 2015(*)
2 April 2015
Sweden 23 December 1958 28 January 1972 27 April 1972
Switzerland 29 December 1958 1 June 1965 30 August 1965
Syrian Arab Republic 9 March 1959(*)
7 June 1959
Tajikistana,i,j
14 August 2012(*)
12 November 2012
Thailand 21 December 1959(*)
20 March 1960
The former Yugoslav
Republic of Macedoniac,i
10 March 1994(§)
17 November 1991
Trinidad and Tobagoa,c
14 February 1966(*)
15 May 1966
Tunisiaa,c
17 July 1967(*)
15 October 1967
Turkeya,c
2 July 1992(*)
30 September 1992
Ugandaa 12 February 1992
(*) 12 May 1992
Ukraineb 29 December 1958 10 October 1960 8 January 1961
United Arab Emirates 21 August 2006(*)
19 November 2006
United Kingdom of Great
Britain and Northern
Irelanda,g
24 September 1975(*)
23 December 1975
United Republic of
Tanzaniaa
13 October 1964(*)
11 January 1965
United States of Americaa,c
30 September 1970(*)
29 December 1970
Uruguay 30 March 1983(*)
28 June 1983
Uzbekistan 7 February 1996(*)
7 May 1996
A/CN.9/909
V.17-02564 18/29
State Signature
Ratification,
Accession(*), Approval(†),
Acceptance(‡) or Succession(§) Entry into force
Venezuela (Bolivarian
Republic of)a,c
8 February 1995(*)
9 May 1995
Viet Nama,b,c
12 September 1995(*)
11 December 1995
Zambia 14 March 2002(*)
12 June 2002
Zimbabwe 29 September 1994(*)
28 December 1994
Parties: 157
Declarations or other notifications pursuant to article I(3) and article X(1)
a This State will apply the Convention only to recognition and enforcement of awards made in the territory of
another contracting State.
b With regard to awards made in the territory of non-contracting States, this State will apply the Convention
only to the extent to which those States grant reciprocal treatment.
c This State will apply the Convention only to differences arising out of legal relationships , whether contractual
or not, that are considered commercial under the national law.
d Canada declared that it would apply the Convention only to differences arising out of legal relationships,
whether contractual or not, that were considered commercial under the laws of Canada, except in the case of
the Province of Quebec, where the law did not provide for such limitation.
e On 24 April 1964, the Netherlands declared that the Convention shall apply to the Netherlands Antilles.
f On 10 February 1976, Denmark declared that the Convention shall apply to the Faroe Islands and Greenland.
g On 24 February 2014, the United Kingdom submitted a notification to extend territorial application of the
Convention to the British Virgin Islands. For the following terri tories, the United Kingdom has submitted
notifications extending territorial application and declaring that the Convention shall apply only to the
recognition and enforcement of awards made in the territory of another Contracting State: Gibraltar (24
September 1975), Isle of Man (22 February 1979), Bermuda (14 November 1979), Cayman Islands (26
November 1980), Guernsey (19 April 1985), Bailiwick of Jersey (28 May 2002).
h Upon resumption of sovereignty over Hong Kong on 1 July 1997, the Government of China extended the
territorial application of the Convention to Hong Kong, Special Administrative Region of China, subject to the
statement originally made by China upon accession to the Convention. On 19 July 2005, China declared that
the Convention shall apply to the Macao Special Administrative Region of China, subject to the statement
originally made by China upon accession to the Convention.
Reservations or other notifications
i This State formulated a reservation with regards to retroactive application of the Convention.
j This State formulated a reservation with regards to the application of the Convention in cases concerning
immovable property.
II. Enactments of model laws28
A. UNCITRAL Model Law on International Commercial Arbitration
(1985), with amendments as adopted in 2006
8. Legislation based on the Model Law has been adopted in 74 States in a total of
105 jurisdictions:
Armenia (2006); Australia (2010a,c
), in Australian Capital Territory (2017a), New
South Wales (2010a), Northern Territory (2011
a), Queensland (2013
a), South
Australia (2011a), Tasmania (2011
a), Victoria (2011
a), and Western Australia
__________________
28
Since States enacting legislation based upon a model law have the flexibility to depart from the
text, these lists are only indicative of the enactments that were made known to the UNCITRAL
Secretariat. The legislation of each State should be considered in order to identify the exact
nature of any possible deviation from the model in the legislative text that was adopted. The year
of enactment provided in this note is the year the legislation was passed by the relevant
legislative body, as indicated to the UNCITRAL Secretariat; it does not address the date of entry
into force of that piece of legislation, the procedures for which vary from State to State, and
could result in entry into force some time after enactment. In addition, there may be subsequent
amending or repealing legislation that has not been made known to the UNCITRAL Secretariat.
APPENDIX D
No. 24384
MULTILATERAL
Inter-American Convention on international commercial arbitration. Concluded at Panama City on 30 January 1975
Authentic texts: Spanish, English, Portuguese and French.Registered by the Organization of American States on 23 October 1986.
MULTILATERAL
Convention interam ricaine sur l'arbitrage commercial international. Conclue Panama le 30 janvier 1975
Textes authentiques : espagnol, anglais, portugais et français. Enregistrée par l'Organisation des États américains le 23 octobre 1986.
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1986 United Nations — Treaty Series • Nations Unies — Recueil des Traités_____249
INTER-AMERICAN CONVENTION 1 ON INTERNATIONAL COM MERCIAL ARBITRATION
The Governments of the Member States of the Organization of American States, desirous of concluding a convention on international commercial arbitration, have agreed as follows:
Article 1. An agreement in which the parties undertake to submit to arbitral decision any differences that may arise or have arisen between them with respect to a commercial transaction is valid. The agreement shall be set forth in an instrument signed by the parties, or in the form of an exchange of letters, telegrams, or telex communications.
Article 2. Arbitrators shall be appointed in the manner agreed upon by the parties. Their appointment may be delegated to a third party, whether a natural or juridical person.
Arbitrators may be nationals or foreigners.Article 3. In the absence of an express agreement between the parties, the
arbitration shall be conducted in accordance with the rules of procedure of the Inter-American Commercial Arbitration Commission.
Article 4. An arbitral decision or award that is not appealable under the applicable law or procedural rules shall have the force of a final judicial judgment. Its execution or recognition may be ordered in the same manner as that of decisions handed down by national or foreign ordinary courts, in accordance with the procedural laws of the country where it is to be executed and the provisions of international treaties.
' Came into force on 16 June 1976, i.e., the thirtieth day following the date of deposit with the General Secretariat of the Organization of American States of the second instrument of ratification, in accordance with article 10:
Date of deposit of the instrument
State of ratification Chile.................................................................. 17 May 1976Panama ............................................................... 17 December 1975
Subsequently, the Convention came into force for the following States on the thirtieth day after deposit of their instruments of ratification or accession with the General Secretariat of the Organization of American States, in accordance with article 10:
Date of deposit of the instrument
State of ratification Paraguay .............................................................. 15 December 1976
(With effect from 14 January 1977.) Uruguay............................................................... 25 April 1977
(With effect from 25 May 1977.) Costa Rica............................................................. 20 January 1978
(With effect from 19 February 1978.) Mexico................................................................ 27 March 1978
(With effect from 26 April 1978.) Honduras.............................................................. 22 March 1979
(With effect from 21 April 1979.) El Salvador............................................................ 11 August 1980
(With effect from 10 September 1980.) Venezuela ............................................................. 16 May 1985
(With effect from 15 June 1985.) Guatemala............................................................. 20 August 1986
(With effect from 19 September 1986.)
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Articles. 1. The recognition and execution of the decision may be refused, at the request of the party against which it is made, only if such party is able to prove to the competent authority of the State in which recognition and execution are requested:a. That the parties to the agreement were subject to some incapacity under
the applicable law or that the agreement is not valid under the law to which the parties have submitted it, or, if such law is not specified, under the law of the State in which the decision was made; or
b. That the party against which the arbitral decision has been made was not duly notified of the appointment of the arbitrator or of the arbitration procedure to be followed, or was unable, for any other reason, to present his defense; or
c. That the decision concerns a dispute not envisaged in the agreement between the parties to submit to arbitration; nevertheless, if the provisions of the decision that refer to issues submitted to arbitration can be separated from those not submitted to arbitration, the former may be recognized and executed; or
d. That the constitution of the arbitral tribunal or the arbitration procedure has not been carried out in accordance with the terms of the agreement signed by the parties or, in the absence of such agreement, that the constitution of the arbitral tribunal or the arbitration procedure has not been carried out in accordance with the law of the State where the arbitration took place; or
e. That the decision is not yet binding on the parties or has been annulled or suspended by a competent authority of the State in which, or according to the law of which, the decision has been made.
2. The recognition and execution of an arbitral decision may also be refused if the competent authority of the State in which the recognition and execution is requested finds:a. That the subject of the dispute cannot be settled by arbitration under the law of
that State; orb. That the recognition or execution of the decision would be contrary to the
public policy (ordre public) of that State.Article 6. If the competent authority mentioned in Article 5.l.e has been
requested to annul or suspend the arbitral decision, the authority before which such decision is invoked may, if it deems it appropriate, postpone a decision on the execution of the arbitral decision and, at the request of the party requesting execution, may also instruct the other party to provide appropriate guaranties.
Article 7. This Convention shall be open for signature by the Member States of the Organization of American States.
Article 8. This Convention is subject to ratification. The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States.
Article 9. This Convention shall remain open for accession by any other State. The instruments of accession shall be deposited with the General Secretariat of the Organization of American States.
Article 10. This Convention shall enter into force on the thirtieth day following the date of deposit of the second instrument of ratification.
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1986 United Nations — Treaty Series • Nations Unies — Recueil des Traités 251
For each State ratifying or acceding to the Convention after the deposit of the second instrument of ratification, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
Article 11. If a State Party has two or more territorial units in which different systems of law apply in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them.
Such declaration may be modified by subsequent declarations, which shall expressly indicate the territorial unit or units to which the Convention applies. Such subsequent declarations shall be transmitted to the General Secretariat of the Organization of American States, and shall become effective thirty days after the date of their receipt.
Article 12. This Convention shall remain in force indefinitely, but any of the States Parties may denounce it. The instrument of denunciation shall be deposited with the General Secretariat of the Organization of American States. After one year from the date of deposit of the instrument of denunciation, the Convention shall no longer be in effect for the denouncing State, but shall remain in effect for the other States Parties.
Article 13. The original instrument of this Convention, the English, French, Portuguese and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American States. The Secretariat shall notify the Member States of the Organization of American States and the States that have acceded to the Convention of the signatures, deposits of instruments of ratification, accession, and denunciation as well as of reservations, if any. It shall also transmit the declarations referred to in Article 11 of this Convention.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly author ized thereto by their respective Governments, have signed this Convention.
DONE at Panama City, Republic of Panama, this thirtieth day of January one thousand nine hundred and seventy-five.
[For the signature pages, see p. 258 of this volume.]
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258 United Nations — Treaty Series • Nations Unies — Recueil des Traités 1986
For Haiti: For Haiti: Pelo Haiti: Pour Haïti
Por Perû: For Peru: Pelo Peru: Pour le Pérou
Por Trinidad y Tobago: For Trinidad and Tobago: Por Trinidad e Tobago: Pour la Trinité-et-Tobago
Por Uruguay: For Uruguay: Pelo Uruguai: Pour l'Uruguay
Por Bolivia: For Bolivia: Pela Bolivia: Pour la Bolivie
Por Honduras: For Honduras: Por Honduras: Pour le Honduras
[Signed — Signé]EDISON GONZALEZ LAPEYRE 30 de enero de 1975'
[Signed — Signé]FERNANDO SALAZAR PAREDES 2 de agosto de 19832
[Signed — Signé]CARLOS ROBERTO REINA 30 de enero de 1975'
1 30 January 1975 — 30 janvier 1975.2 2 August 1983 — 2 août 1983.Vol. 1438, 1-24384
1986 United Nations — Treaty Series • Nations Unies — Recueil des Traités 259
Por los Estados Unidos de America: For thé United States of America: Pelos Estados Unidos da America: Pour les Etats-Unis d'Amérique :
[Signed — Signé]GALE W. MCÛEE June 9, 1978[Signed — Signé]CHARLES R. NORBERG June 9, 1978
Por Barbados: For Barbados: Por Barbados: Pour la Barbade :
Por la Repûblica Argentina: For thé Argentine Republic: Pela Repûblica Argentina: Pour la République Argentine
Por Costa Rica: For Costa Rica: Por Costa Rica: Pour le Costa Rica :
Por Nicaragua: For Nicaragua: Por Nicaragua: Pour le Nicaragua
[Signed — Signé]GONZALO ORTfZ MARTÏN30 de enero 1975'
[Signed — Signé]DIEGO SIRERA HERRERO 30 de enero 1975'
Por Ecuador: For Ecuador: Pelo Equador: Pour l'Equateur
[Signed — Signé]HUMBERTO GARCÎA ORTÎZ 30/75 enero '
1 30 January 1975 — 30 janvier 1975.
Vol. 1438, 1-24384
260 United Nations — Treaty Series • Nations Unies — Recueil des Traités 1986
Por Guatemala: For Guatemala: Pela Guatemala: Pour le Guatemala
Por Jamaica: For Jamaica: Pela Jamaica: Pour la Jamaïque
Por Brasil: For Brazil: Pelo Brasil: Pour le Brésil
Por Panama: For Panama: Pelo Panama: Pour Panama
[Signed — Signé]FRANCISCO VILLAGRAN KRAMER 30 de enero 1975'
[Signed — Signé]HAROLDO TEIXEIRA VALLADAO Panama, 30/1/75[Signed — Signé]GERALDO EULALIO DO NASCIMENTO E SILVA
[Signed — Signé]JUAN MATERNO VASQUEZ 30/1/75
Por Paraguay: For Paraguay: Pelo Paraguai: Pour le Paraguay
Ad referendum [Signed — Signé]MIGUEL SOLANO LÔPEZ 26 de agosto de 19752
1 30 January 1975 — 30 janvier 1975.2 26 August 1975 — 26 août 1975.
Vol. 1438, 1-24384
1986 United Nations — Treaty Series • Nations Unies — Recueil des Traités 261
Por Venezuela: For Venezuela: Pela Venezuela: Pour le Venezuela
[Signed — Signé]GONZALO PARRA ARANGUREN30/1/75
Por la Repûblica Dominicana: For the Dominican Republic: Pela Repûblica Dominicana: Pour la République Dominicaine
Por El Salvador: For El Salvador: Por El Salvador: Pour Le Salvador
Por Mexico: For Mexico: Pelo Mexico: Pour le Mexique
Por Chile: For Chile: Pelo Chile: Pour le Chili
[Signed — Signé]KEMIL DIPP GÔMEZ Abril 18, 1977'
[Signed — Signé]FRANCISCO BERTRAND GALINDO 30 de enero de 19752
[Signed — Signé]RAFAËL DE LA COLINA 27 de octubre de 19773
[Signed — Signé]RAFAËL EYZAGUIRRE ECHEVARRÎA 3 de enero de 19752
1 18 April 1977 — 18 avril 1977.2 30 January 1975 — 30 janvier 1975.3 27 October 1977 — 27 octobre 1977.
Vol. 1438,1-24384
262 United Nations — Treaty Series • Nations Unies — Recueil des Traités_____1986
For Colombia: For Colombia: Pela Colombia: Pour la Colombie :
[Signed — Signé]MARCO GERARDO MONROY CABRA 30 de enero de 1975'
1 30 January 1975 — 30 janvier 1975.
Vol. 1438, 1-24384
APPENDIX E
the Tribunal which rendered the award, shall be of the same nationalityas any such member, shall be a national of the State party to the disputeor of the State whose national is a party to the dispute, shall have beendesignated to the Panel of Arbitrators by either of those States, or shallhave acted as a conciliator in the same dispute. The Committee shallhave the authority to annul the award or any part thereof on any of thegrounds set forth in paragraph (1).
(4) The provisions of Articles 41-45, 48, 49, 53 and 54, and ofChapters VI and VII shall apply mutatis mutandis to proceedings beforethe Committee.
(5) The Committee may, if it considers that the circumstances sorequire, stay enforcement of the award pending its decision. If the appli-cant requests a stay of enforcement of the award in his application,enforcement shall be stayed provisionally until the Committee rules onsuch request.
(6) If the award is annulled the dispute shall, at the request ofeither party, be submitted to a new Tribunal constituted in accordancewith Section 2 of this Chapter.
Section 6Recognition and Enforcement
of the Award
Article 53
(1) The award shall be binding on the parties and shall not be sub-ject to any appeal or to any other remedy except those provided for inthis Convention. Each party shall abide by and comply with the termsof the award except to the extent that enforcement shall have beenstayed pursuant to the relevant provisions of this Convention.
(2) For the purposes of this Section,“award” shall include any deci-sion interpreting, revising or annulling such award pursuant to Articles50, 51 or 52.
Article 54
(1) Each Contracting State shall recognize an award rendered pur-suant to this Convention as binding and enforce the pecuniary obliga-tions imposed by that award within its territories as if it were a finaljudgment of a court in that State. A Contracting State with a federalconstitution may enforce such an award in or through its federal courtsand may provide that such courts shall treat the award as if it were afinal judgment of the courts of a constituent state.
27
Conv
enti
on
(2) A party seeking recognition or enforcement in the territories ofa Contracting State shall furnish to a competent court or other author-ity which such State shall have designated for this purpose a copy of theaward certified by the Secretary-General. Each Contracting State shallnotify the Secretary-General of the designation of the competent courtor other authority for this purpose and of any subsequent change insuch designation.
(3) Execution of the award shall be governed by the laws concern-ing the execution of judgments in force in the State in whose territoriessuch execution is sought.
Article 55
Nothing in Article 54 shall be construed as derogating from the lawin force in any Contracting State relating to immunity of that State orof any foreign State from execution.
Chapter VReplacement and Disqualification
of Conciliators and Arbitrators
Article 56
(1) After a Commission or a Tribunal has been constituted andproceedings have begun, its composition shall remain unchanged; pro-vided, however, that if a conciliator or an arbitrator should die, becomeincapacitated, or resign, the resulting vacancy shall be filled in accor-dance with the provisions of Section 2 of Chapter III or Section 2 ofChapter IV.
(2) A member of a Commission or Tribunal shall continue to servein that capacity notwithstanding that he shall have ceased to be amember of the Panel.
(3) If a conciliator or arbitrator appointed by a party shall haveresigned without the consent of the Commission or Tribunal of whichhe was a member, the Chairman shall appoint a person from the appro-priate Panel to fill the resulting vacancy.
Article 57
A party may propose to a Commission or Tribunal the disqualifica-tion of any of its members on account of any fact indicating a manifestlack of the qualities required by paragraph (1) of Article 14. A party toarbitration proceedings may, in addition, propose the disqualification
28
Convention
APPENDIX F
UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT (2005) *
NATIONAL CONFERENCE OF COMMISSIONERSON UNIFORM STATE LAWS
MEETING IN ITS ONE-HUNDRED-AND-FOURTEENTH YEARPITTSBURGH, PENNSYLVANIA
JULY 22 - 29, 2005
UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT (2005)
WITHOUT PREFATORY NOTE OR COMMENTS
Copyright © 2005
By
National Conference of Commissioners
on Uniform State Laws
* The following text is subject to revision by the Committee on Style of the National Conference of
Commissioners on Uniform State Laws.
ABOUT NCCUSL
The National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its114 year, provides states with non-partisan, well-conceived and well-drafted legislation thatth
brings clarity and stability to critical areas of state statutory law.
Conference members must be lawyers, qualified to practice law. They are practicing lawyers,judges, legislators and legislative staff and law professors, who have been appointed by stategovernments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands toresearch, draft and promote enactment of uniform state laws in areas of state law whereuniformity is desirable and practical.
• NCCUSL strengthens the federal system by providing rules and procedures that areconsistent from state to state but that also reflect the diverse experience of the states.
• NCCUSL statutes are representative of state experience, because the organization is madeup of representatives from each state, appointed by state government.
• NCCUSL keeps state law up-to-date by addressing important and timely legal issues.
• NCCUSL’s efforts reduce the need for individuals and businesses to deal with differentlaws as they move and do business in different states.
• NCCUSL’s work facilitates economic development and provides a legal platform forforeign entities to deal with U.S. citizens and businesses.
• NCCUSL Commissioners donate thousands of hours of their time and legal and draftingexpertise every year as a public service, and receive no salary or compensation for theirwork.
• NCCUSL’s deliberative and uniquely open drafting process draws on the expertise ofcommissioners, but also utilizes input from legal experts, and advisors and observersrepresenting the views of other legal organizations or interests that will be subject to theproposed laws.
• NCCUSL is a state-supported organization that represents true value for the states,providing services that most states could not otherwise afford or duplicate.
UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT (2005)
The Committee acting for the National Conference of Commissioners on Uniform StateLaws in preparing the Uniform Foreign-Country Money Judgments Recognition Act (2005) is asfollows:
ROBERT H. CORNELL, 573 Arkansas, San Francisco, CA 94107, ChairK. KING BURNETT, P.O. Box 910, Salisbury, MD 21803-0910JOHN P. BURTON, P.O. Box 1357, 315 Paseo de Peralta, Santa Fe, NM 87501JOHN A. CHANIN, 5901 Mount Eagle Dr., Apt. 1115, Alexandria, VA 22303, Enactment Plan
CoordinatorFRANK W. DAYKIN, 2180 Thomas Jefferson Dr., Reno, NV 89509W. MICHAEL DUNN, P.O. Box 3701, 1000 Elm St., Manchester, NH 03105HENRY DEEB GABRIEL, JR., Loyola University School of Law, 526 Pine St., New Orleans,
LA 70118CURTIS R. REITZ, University of Pennsylvania School of Law, 3400 Chestnut St., Philadelphia,
PA 19104H. KATHLEEN PATCHEL, Indiana University, School of Law, 530 W. New York St.,
Indianapolis, IN 46202-3225, National Conference Reporter
EX OFFICIOFRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Rd., Room 3056,
Norman, OK 73019, PresidentREX BLACKBURN, 1673 W. Shoreline Dr., Suite 200, P.O. Box 7808, Boise, ID 83707,
Division Chair
AMERICAN BAR ASSOCIATION ADVISORELIZABETH M. BOHN, 777 Brickell Ave., Ste. 500, Miami, FL 33131-2803, American Bar
Association Advisor
EXECUTIVE DIRECTORWILLIAM H. HENNING, University of Alabama School of Law, Box 870382, Tuscaloosa, AL
35487-0382, Executive Director
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERSON UNIFORM STATE LAWS
211 E. Ontario Street, Suite 1300Chicago, Illinois 60611
312/915-0195www.nccusl.org
UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT (2005)
TABLE OF CONTENTS
SECTION 1. SHORT TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5SECTION 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5SECTION 3. APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5SECTION 4. STANDARDS FOR RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6SECTION 5. PERSONAL JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7SECTION 6. PROCEDURE FOR RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8SECTION 7. EFFECT OF RECOGNITION OF FOREIGN-COUNTRY JUDGMENT
UNDER THIS [ACT] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9SECTION 8. STAY OF PROCEEDINGS PENDING APPEAL OF FOREIGN-COUNTRY
JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9SECTION 9. STATUTE OF LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9SECTION 10. SAVING CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10SECTION 11. UNIFORMITY OF INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10SECTION 12. REPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10SECTION 13. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5
UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT (2005)
SECTION 1. SHORT TITLE. This [act] may be cited as the [Uniform Foreign-
Country Money Judgments Recognition Act of 2005].
SECTION 2. DEFINITIONS. In this [act]:
(a) “Foreign country” means a government other than
(i) the United States;
(ii) a state, district, commonwealth, territory or insular possession of the
United States; or
(iii) any other government with regard to which the decision in this state
as to whether to recognize the judgments of that government’s courts is initially subject to
determination under the Full Faith and Credit Clause of the United States Constitution.
(b) “Foreign-country judgment” means a judgment of a court of a foreign country.
SECTION 3. APPLICATION.
(a) Except as otherwise provided in subsection (b), this [act] applies to a foreign-
country judgment to the extent that the foreign-country judgment
(1) grants or denies recovery of a sum of money; and
(2) under the law of the foreign country where rendered, is final,
conclusive, and enforceable.
(b) This [act] does not apply to a foreign-country judgment, even if the foreign-
country judgment grants or denies recovery of a sum of money, to the extent that the foreign-
country judgment is
6
(1) a judgment for taxes;
(2) a fine or other penalty; or
(3) a judgment for divorce, support, or maintenance, or other judgment
rendered in connection with domestic relations.
(c) The party seeking recognition of a foreign-country judgment has the burden of
establishing that this [act] applies to the foreign-country judgment.
SECTION 4. STANDARDS FOR RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT.
(a) Except as otherwise provided in subsections (b) and (c), a court of this state
shall recognize a foreign-country judgment to which this [act] applies.
(b) A court of this state may not recognize a foreign-country judgment if:
(1) the foreign-country judgment was rendered under a judicial system
that does not provide impartial tribunals or procedures compatible with the requirements of due
process of law;
(2) the foreign court did not have personal jurisdiction over the defendant;
or
(3) the foreign court did not have jurisdiction over the subject matter.
(c) A court of this state need not recognize a foreign-country judgment if:
(1) the defendant in the proceeding in the foreign court did not receive
notice of the proceeding in sufficient time to enable the defendant to defend;
(2) the foreign-country judgment was obtained by fraud that deprived the
losing party of an adequate opportunity to present its case;
7
(3) the foreign-country judgment or the [cause of action] [claim for relief]
on which the foreign-country judgment is based is repugnant to the public policy of this state or
of the United States;
(4) the foreign-country judgment conflicts with another final and
conclusive judgment;
(5) the proceeding in the foreign court was contrary to an agreement
between the parties under which the dispute in question was to be determined otherwise than by
proceedings in that foreign court;
(6) in the case of jurisdiction based only on personal service, the foreign
court was a seriously inconvenient forum for the trial of the action;
(7) the foreign-country judgment was rendered in circumstances that raise
substantial doubt about the integrity of the rendering court with respect to the foreign-country
judgment; or
(8) the specific proceeding in the foreign court leading to the foreign-
country judgment was not compatible with the requirements of due process of law.
(d) The party resisting recognition of the foreign-country judgment has the
burden of establishing that one of the grounds for non-recognition stated in subsection (b) or (c)
exists.
SECTION 5. PERSONAL JURISDICTION.
(a) A foreign-country judgment may not be refused recognition for lack of
personal jurisdiction if:
(1) the defendant was served with process personally in the foreign
8
country;
(2) the defendant voluntarily appeared in the proceeding, other than for
the purpose of protecting property seized or threatened with seizure in the proceeding or of
contesting the jurisdiction of the court over the defendant;
(3) the defendant, before the commencement of the proceeding, had
agreed to submit to the jurisdiction of the foreign court with respect to the subject matter
involved;
(4) the defendant was domiciled in the foreign country when the
proceeding was instituted or was a corporation or other form of business organization that had its
principal place of business in, or was organized under the laws of, the foreign country;
(5) the defendant had a business office in the foreign country and the
proceeding in the foreign court involved a [cause of action] [claim for relief] arising out of
business done by the defendant through that office in the foreign country; or
(6) the defendant operated a motor vehicle or airplane in the foreign
country and the proceeding involved a [cause of action] [claim for relief] arising out of that
operation.
(b) The list of bases for personal jurisdiction in subsection (a) is not exclusive,
and the courts of this state may recognize other bases of personal jurisdiction as sufficient to
support a foreign-country judgment.
SECTION 6. PROCEDURE FOR RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT.
(a) If recognition of a foreign-country judgment is sought as an original matter,
9
the issue of recognition shall be raised by filing an action seeking recognition of the foreign-
country judgment.
(b) If recognition of a foreign-country judgment is sought in a pending action, the
issue of recognition may be raised by counterclaim, cross-claim or affirmative defense.
SECTION 7. EFFECT OF RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT UNDER THIS [ACT]. If the court in a proceeding under Section 6 finds that the
foreign-country judgment is entitled to recognition under this [act] then, to the extent that the
foreign-country judgment grants or denies recovery of a sum of money, the foreign-country
judgment is:
(a) conclusive between the parties to the same extent as the judgment of a sister
state entitled to full faith and credit in this state would be conclusive; and
(b) enforceable in the same manner and to the same extent as a judgment
rendered in this state.
SECTION 8. STAY OF PROCEEDINGS PENDING APPEAL OF FOREIGN-
COUNTRY JUDGMENT. If a party establishes that an appeal from a foreign-country
judgment is pending or will be taken, the court may stay any proceedings with regard to the
foreign-country judgment until the appeal is concluded, the time for appeal expires, or the party
appealing has had sufficient time to prosecute the appeal and has failed to do so.
SECTION 9. STATUTE OF LIMITATIONS. An action to recognize a foreign-
country judgment must be commenced within the earlier of the time during which the foreign-
country judgment is effective in the foreign country or 15 years from the date that the foreign-
country judgment became effective in the foreign country.
10
SECTION 10. SAVING CLAUSE. This [act] does not prevent the recognition under
principles of comity or otherwise of a foreign-country judgment not within the scope of this [act].
SECTION 11. UNIFORMITY OF INTERPRETATION. In applying and construing
this uniform act, consideration must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
SECTION 12. REPEAL. The following [acts] are repealed:
(a) Uniform Foreign Money-Judgments Recognition Act of 1962;
(b) .
SECTION 13. EFFECTIVE DATE.
(a) This [act] takes effect … .
(b) This [act] applies to all actions commenced on or after the effective date of
this [act] in which the issue of recognition of a foreign-country judgment is raised.
APPENDIX G
UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTSRECOGNITION ACT
drafted by the
NATIONAL CONFERENCE OF COMMISSIONERSON UNIFORM STATE LAWS
and by it
APPROVED AND RECOMMENDED FOR ENACTMENTIN ALL THE STATES
at its
ANNUAL CONFERENCEMEETING IN ITS ONE-HUNDRED-AND-FOURTEENTH YEAR
PITTSBURGH, PENNSYLVANIA
July 21-28, 2005
WITH PREFATORY NOTE AND COMMENTS
Copyright ©2005
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
February 10, 2006
ABOUT NCCUSL
The National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its114 year, provides states with non-partisan, well-conceived and well-drafted legislation thatth
brings clarity and stability to critical areas of state statutory law.
Conference members must be lawyers, qualified to practice law. They are practicing lawyers,judges, legislators and legislative staff and law professors, who have been appointed by stategovernments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands toresearch, draft and promote enactment of uniform state laws in areas of state law whereuniformity is desirable and practical.
• NCCUSL strengthens the federal system by providing rules and procedures that areconsistent from state to state but that also reflect the diverse experience of the states.
• NCCUSL statutes are representative of state experience, because the organization is madeup of representatives from each state, appointed by state government.
• NCCUSL keeps state law up-to-date by addressing important and timely legal issues.
• NCCUSL’s efforts reduce the need for individuals and businesses to deal with differentlaws as they move and do business in different states.
• NCCUSL’s work facilitates economic development and provides a legal platform forforeign entities to deal with U.S. citizens and businesses.
• NCCUSL Commissioners donate thousands of hours of their time and legal and draftingexpertise every year as a public service, and receive no salary or compensation for theirwork.
• NCCUSL’s deliberative and uniquely open drafting process draws on the expertise ofcommissioners, but also utilizes input from legal experts, and advisors and observersrepresenting the views of other legal organizations or interests that will be subject to theproposed laws.
• NCCUSL is a state-supported organization that represents true value for the states,providing services that most states could not otherwise afford or duplicate.
UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT
The Committee appointed by and representing the National Conference of Commissioners onUniform State Laws in preparing this Uniform Foreign-Country Money Judgments RecognitionAct consists of the following individuals:
ROBERT H. CORNELL, 573 Arkansas, San Francisco, CA 94107, ChairK. KING BURNETT, P.O. Box 910, Salisbury, MD 21803-0910JOHN P. BURTON, P.O. Box 1357, 315 Paseo de Peralta, Santa Fe, NM 87501JOHN A. CHANIN, 5901 Mount Eagle Dr., Apt. 1115, Alexandria, VA 22303, Enactment Plan
CoordinatorFRANK W. DAYKIN, 2180 Thomas Jefferson Dr., Reno, NV 89509W. MICHAEL DUNN, P.O. Box 3701, 1000 Elm St., Manchester, NH 03105HENRY DEEB GABRIEL, JR., Loyola University School of Law, 526 Pine St., New Orleans,
LA 70118CURTIS R. REITZ, University of Pennsylvania School of Law, 3400 Chestnut St., Philadelphia,
PA 19104H. KATHLEEN PATCHEL, Indiana University, School of Law, 530 W. New York St.,
Indianapolis, IN 46202-3225, National Conference Reporter
EX OFFICIOFRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Rd., Room 3056,
Norman, OK 73019, PresidentREX BLACKBURN, 1673 W. Shoreline Dr., Suite 200, P.O. Box 7808, Boise, ID 83707,
Division Chair
AMERICAN BAR ASSOCIATION ADVISORELIZABETH M. BOHN, 777 Brickell Ave., Ste. 500, Miami, FL 33131-2803, American Bar
Association Advisor
EXECUTIVE DIRECTORWILLIAM H. HENNING, University of Alabama School of Law, Box 870382, Tuscaloosa, AL
35487-0382, Executive Director
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERSON UNIFORM STATE LAWS
211 E. Ontario Street, Suite 1300Chicago, Illinois 60611
312/915-0195www.nccusl.org
UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT
TABLE OF CONTENTS
PREFATORY NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1SECTION 1. SHORT TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2SECTION 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2SECTION 3. APPLICABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4SECTION 4. STANDARDS FOR RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8SECTION 5. PERSONAL JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14SECTION 6. PROCEDURE FOR RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16SECTION 7. EFFECT OF RECOGNITION OF FOREIGN-COUNTRY JUDGMENT . . . . . . 18SECTION 8. STAY OF PROCEEDINGS PENDING APPEAL OF FOREIGN-COUNTRY
JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19SECTION 9. STATUTE OF LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20SECTION 10. UNIFORMITY OF INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21SECTION 11. SAVING CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21SECTION 12. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21SECTION 13. REPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1
UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT
PREFATORY NOTE
This Act is a revision of the Uniform Foreign Money-Judgments Recognition Act of1962. That Act codified the most prevalent common law rules with regard to the recognition ofmoney judgments rendered in other countries. The hope was that codification by a state of itsrules on the recognition of foreign-country money judgments, by satisfying reciprocity concernsof foreign courts, would make it more likely that money judgments rendered in that state wouldbe recognized in other countries. Towards this end, the Act sets out the circumstances in whichthe courts in states that have adopted the Act must recognize foreign-country money judgments. It delineates a minimum of foreign-country judgments that must be recognized by the courts ofadopting states, leaving those courts free to recognize other foreign-country judgments notcovered by the Act under principles of comity or otherwise. Since its promulgation over fortyyears ago, the 1962 Act has been adopted in a majority of the states and has been in large partsuccessful in carrying out it purpose of establishing uniform and clear standards under whichstate courts will enforce the foreign-country money judgments that come within its scope.
This Act continues the basic policies and approach of the 1962 Act. Its purpose is not todepart from the basic rules or approach of the 1962 Act, which have withstood well the test oftime, but rather to update the 1962 Act, to clarify its provisions, and to correct problems createdby the interpretation of the provisions of that Act by the courts over the years since itspromulgation. Among the more significant issues that have arisen under the 1962 Act which areaddressed in this Revised Act are (1) the need to update and clarify the definitions section; (2) theneed to reorganize and clarify the scope provisions, and to allocate the burden of proof withregard to establishing application of the Act; (3) the need to set out the procedure by whichrecognition of a foreign-country money judgment under the Act must be sought; (4) the need toclarify and, to a limited extent, expand upon the grounds for denying recognition in light ofdiffering interpretations of those provisions in the current case law; (5) the need to expresslyallocate the burden of proof with regard to the grounds for denying recognition; and (6) the needto establish a statute of limitations for recognition actions.
In the course of drafting this Act, the drafters revisited the decision made in the 1962 Actnot to require reciprocity as a condition to recognition of the foreign-country money judgmentscovered by the Act. After much discussion, the drafters decided that the approach of the 1962Act continues to be the wisest course with regard to this issue. While recognition of U.S.judgments continues to be problematic in a number of foreign countries, there was insufficientevidence to establish that a reciprocity requirement would have a greater effect on encouragingforeign recognition of U.S. judgments than does the approach taken by the Act. At the sametime, the certainty and uniformity provided by the approach of the 1962 Act, and continued inthis Act, creates a stability in this area that facilitates international commercial transactions.
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UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT
SECTION 1. SHORT TITLE. This [act] may be cited as the [Uniform Foreign-
Country Money Judgments Recognition Act].
Comment
Source: This section is an updated version of Section 9 of the Uniform Foreign Money-Judgments Recognition Act of 1962.
SECTION 2. DEFINITIONS. In this [act]:
(1) “Foreign country” means a government other than:
(A) the United States;
(B) a state, district, commonwealth, territory, or insular possession of the
United States; or
(C) any other government with regard to which the decision in this state
as to whether to recognize a judgment of that government’s courts is initially subject to
determination under the Full Faith and Credit Clause of the United States Constitution.
(2) “Foreign-country judgment” means a judgment of a court of a foreign country.
Comment
Source: This section is derived from Section 1 of the Uniform Foreign Money-JudgmentsRecognition Act of 1962.
1. The defined terms “foreign state” and “foreign judgment” in the 1962 Act have beenchanged to “foreign country” and “foreign-country judgment” in order to make it clear that theAct does not apply to recognition of sister-state judgments. Some courts have noted that the“foreign state” and “foreign judgment” definitions of the 1962 Act have caused confusion as towhether the Act should apply to sister-state judgments because “foreign state” and “foreignjudgment” are terms of art generally used in connection with recognition and enforcement of
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sister-state judgments. See, e.g., Eagle Leasing v. Amandus, 476 N.W.2d 35 (S.Ct. Iowa 1991)(reversing lower court’s application of UFMJRA to a sister-state judgment, but noting lowercourt’s confusion was understandable as “foreign judgment” is term of art normally applied tosister-state judgments). See also, Uniform Enforcement of Foreign Judgments Act §1 (defining“foreign judgment” as the judgment of a sister state or federal court).
The 1962 Act defines a “foreign state” as “any governmental unit other than the UnitedStates, or any state, district, commonwealth, territory, insular possession thereof, or the PanamaCanal Zone, the Trust Territory of the Pacific Islands, or the Ryuku Islands.” Rather than simplyupdating the list in the 1962 Act’s definition of “foreign state,” the new definition of “foreigncountry” in this Act combines the “listing” approach of the 1962 Act’s “foreign state” definitionwith a provision that defines “foreign country” in terms of whether the judgments of theparticular government’s courts are initially subject to the Full Faith and Credit Clause standardsfor determining whether those judgments will be recognized. Under this new definition, agovernmental unit is a “foreign country” if it is (1) not the United States or a state, district,commonwealth, territory or insular possession of the United States; and (2) its judgments are notinitially subject to Full Faith and Credit Clause standards.
The Full Faith and Credit Clause, Art. IV, section 1, provides that “Full Faith and Creditshall be given in each State to the public Acts, Records, and judicial Proceedings of every otherState. And the Congress may by general Laws prescribe the Manner in which such Acts,Records, and Proceedings shall be proved, and the Effect thereof.” Whether the judgments of agovernmental unit are subject to the Full Faith and Credit Clause may be determined by judicialinterpretation of the Full Faith and Credit Clause or by statute, or by a combination of these twosources. For example, pursuant to the authority granted by the second sentence of the Full Faithand Credit Clause, Congress has passed 28 U.S.C.A. §1738, which provides inter alia that courtrecords from “any State, Territory, or Possession of the United States” are entitled to full faithand credit under the Full Faith and Credit Clause. In Stoll v. Gottlieb, 305 U.S. 165, 170 (1938),the United States Supreme Court held that this statute also requires that full faith and credit begiven to judgments of federal courts. States also have made determinations as to whether certaintypes of judgments are subject to the Full Faith and Credit Clause. E.g. Day v. Montana Dept. OfSocial & Rehab. Servs., 900 P.2d 296 (Mont. 1995) (tribal court judgment not subject to FullFaith and Credit, and should be treated with same deference shown foreign-country judgments). Under the definition of “foreign country” in this Act, the determination as to whether agovernmental unit’s judgments are subject to full faith and credit standards should be made byreference to any relevant law, whether statutory or decisional, that is applicable “in this state.”
The definition of “foreign country” in terms of those judgments not subject to Full Faithand Credit standards also has the advantage of more effectively coordinating the Act with theUniform Enforcement of Foreign Judgments Act. That Act, which establishes a registrationprocedure for the enforcement of sister state and equivalent judgments, defines a “foreignjudgment” as “any judgment, decree, or order of a court of the United States or of any other courtwhich is entitled to full faith and credit in this state.” Uniform Enforcement of Foreign
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Judgments Act, §1 (1964). By defining “foreign country” in the Recognition Act in terms ofthose judgments not subject to full faith and credit standards, this Act makes it clear that theEnforcement Act and the Recognition Act are mutually exclusive – if a foreign money judgmentis subject to full faith and credit standards, then the Enforcement Act’s registration procedure isavailable with regard to its enforcement; if the foreign money judgment is not subject to full faithand credit standards, then the foreign money judgment may not be enforced until recognition of ithas been obtained in accordance with the provisions of the Recognition Act.
2. The definition of “foreign-country judgment” in this Act differs significantly from the1962 Act’s definition of “foreign judgment.” The 1962 Act’s definition served in large part as ascope provision for the Act. The part of the definition defining the scope of the Act has beenmoved to section 3, which is the scope section.
3. The definition of “foreign-country judgment” in this Act refers to “a judgment” of “acourt” of the foreign country. The foreign-country judgment need not take a particular form –any order or decree that meets the requirements of this section and comes within the scope of theAct under Section 3 is subject to the Act. Similarly, any competent government tribunal thatissues such a “judgment” comes within the term “court” for purposes of this Act. The judgment,however, must be a judgment of an adjudicative body of the foreign country, and not the result ofan alternative dispute mechanism chosen by the parties. Thus, foreign arbitral awards andagreements to arbitrate are not covered by this Act. They are governed instead by federal law,Chapter 2 of the U.S. Arbitration Act, 9 U.S.C. §§ 201-208, implementing the United NationsConvention on the Recognition and Enforcement of Foreign Arbitral Awards and Chapter 3 ofthe U.S. Arbitration Act, 9 U.S.C. §§301-307, implementing the Inter-American Convention onInternational Commercial Arbitration. A judgment of a foreign court confirming or setting asidean arbitral award, however, would be covered by this Act.
4. The definition of “foreign-country judgment” does not limit foreign-country judgmentsto those rendered in litigation between private parties. Judgments in which a governmental entityis a party also are included, and are subject to this Act if they meet the requirements of thissection and are within the scope of the Act under Section 3.
SECTION 3. APPLICABILITY.
(a) Except as otherwise provided in subsection (b), this [act] applies to a foreign-
country judgment to the extent that the judgment:
(1) grants or denies recovery of a sum of money; and
(2) under the law of the foreign country where rendered, is final,
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conclusive, and enforceable.
(b) This [act] does not apply to a foreign-country judgment, even if the judgment
grants or denies recovery of a sum of money, to the extent that the judgment is:
(1) a judgment for taxes;
(2) a fine or other penalty; or
(3) a judgment for divorce, support, or maintenance, or other judgment
rendered in connection with domestic relations.
(c) A party seeking recognition of a foreign-country judgment has the burden of
establishing that this [act] applies to the foreign-country judgment.
Comment
Source: This section is based on Section 2 of the 1962 Act. Subsection (b) containsmaterial that was included as part of the definition of “foreign judgment” in Section 1(2) of the1962 Act. Subsection (c) is new.
1. Like the 1962 Act, this Act sets out in subsection 3(a) two basic requirements that aforeign-country judgment must meet before it comes within the scope of this Act – the foreign-country judgment must (1) grant or deny recovery of a sum of money and (2) be final, conclusiveand enforceable under the law of the foreign country where it was rendered. Subsection 3(b) thensets out three types of foreign-country judgments that are excluded from the coverage of this Act,even though they meet the criteria of subsection 3(a) – judgments for taxes, judgmentsconstituting fines and other penalties, and judgments in domestic relations matters. Theseexclusions are comparable to those contained in Section 1(2) of the 1962 Act.
2. This Act applies to a foreign-country judgment only to the extent the foreign-countryjudgment grants or denies recovery of a sum of money. If a foreign-country judgment bothgrants or denies recovery of a sum money and provides for some other form of relief, this Actwould apply to the portion of the judgment that grants or denies monetary relief, but not to theportion that provides for some other form of relief. The U.S. court, however, would be left freeto decide to recognize and enforce the non-monetary portion of the judgment under principles ofcomity or other applicable law. See Section 11.
3. In order to come within the scope of this Act, a foreign-country judgment must befinal, conclusive, and enforceable under the law of the foreign country in which it was rendered.
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This requirement contains three distinct, although inter-related concepts. A judgment is finalwhen it is not subject to additional proceedings in the rendering court other than execution. Ajudgment is conclusive when it is given effect between the parties as a determination of theirlegal rights and obligations. A judgment is enforceable when the legal procedures of the state toensure that the judgment debtor complies with the judgment are available to the judgmentcreditor to assist in collection of the judgment.
While the first two of these requirements – finality and conclusiveness – will apply withregard to every foreign-country money judgment, the requirement of enforceability is onlyrelevant when the judgment is one granting recovery of a sum of money. A judgment denying asum of money obviously is not subject to enforcement procedures, as there is no monetary awardto enforce. This Act, however, covers both judgments granting and those denying recovery of asum of money. Thus, the fact that a foreign-country judgment denying recovery of a sum ofmoney is not enforceable does not mean that such judgments are not within the scope of the Act. Instead, the requirement that the judgment be enforceable should be read to mean that, if theforeign-country judgment grants recovery of a sum of money, it must be enforceable in theforeign country in order to be within the scope of the Act.
Like the 1962 Act, subsection 3(b) requires that the determinations as to finality,conclusiveness and enforceability be made using the law of the foreign country in which thejudgment was rendered. Unless the foreign-country judgment is final, conclusive, and (to theextent it grants recovery of a sum of money) enforceable in the foreign country where it wasrendered, it will not be within the scope of this Act.
4. Subsection 3(b) follows the 1962 Act by excluding three categories of foreign-countrymoney judgments from the scope of the Act – judgments for taxes, judgments that constitutefines and penalties, and judgments in domestic relations matters. The domestic relationsexclusion has been redrafted to make it clear that all judgments in domestic relations matters areexcluded from the Act, not just judgments “for support” as provided in the 1962 Act. This isconsistent with interpretation of the 1962 Act by the courts, which extended the “support”exclusion in the 1962 Act beyond its literal wording to exclude other money judgments inconnection with domestic matters. E.g., Wolff v. Wolff, 389 A.2d 413 (My. App. 1978)(“support” includes alimony).
Recognition and enforcement of domestic relations judgments traditionally has beentreated differently from recognition and enforcement of other judgments. The considerationswith regard to those judgments, particularly with regard to jurisdiction and finality, differ fromthose with regard to other money judgments. Further, national laws with regard to domesticrelations vary widely, and recognition and enforcement of such judgments thus is moreappropriately handled through comity than through use of this uniform Act. Finally, otherstatutes, such as the Uniform Interstate Family Support Act and the federal International ChildSupport Enforcement Act, 42 U.S.C. §659a (1996), address various aspects of the recognitionand enforcement of domestic relations awards. Under Section 11 of this Act, courts are free to
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recognize money judgments in domestic relations matters under principles of comity orotherwise, and U.S. courts routinely enforce money judgments in domestic relations mattersunder comity principles.
Foreign-country judgments for taxes and judgments that constitute fines or penaltiestraditionally have not been recognized and enforced in U.S. courts. See, e.g., Restatement Thirdof the Foreign Relations Law of the United States §483 (1986). Both the “revenue rule,” underwhich the courts of one country will not enforce the revenue laws of another country, and theprohibition on enforcement of penal judgments seem to be grounded in the idea that one countrydoes not enforce the public laws of another. See id. Reporters’ Note 2. The exclusion of taxjudgments and judgments constituting fines or penalties from the scope of the Act reflects thistradition. Under Section 11, however, courts remain free to consider whether such judgmentsshould be recognized and enforced under comity or other principles.
A judgment for taxes is a judgment in favor of a foreign country or one of its subdivisionsbased on a claim for an assessment of a tax. Thus, a judgment awarding a plaintiff restitution ofthe purchase price paid for an item would not be considered in any part a judgment for taxes,even though one element of the recovery was the sales tax paid by the plaintiff at the time ofpurchase. Such a judgment would not be one designed to enforce the revenue laws of the foreigncountry, but rather one designed to compensate the plaintiff. Courts generally hold that the testfor whether a judgment is a fine or penalty is determined by whether its purpose is remedial innature, with its benefits accruing to private individuals, or it is penal in nature, punishing anoffense against public justice. E.g., Chase Manhattan Bank, N.A. v. Hoffman, 665 F.Supp 73 (D.Mass. 1987) (finding that Belgium judgment was not penal even though the proceeding formingthe basis of the suit was primarily criminal where Belgium court considered damage petition acivil remedy, the judgment did not constitute punishment for an offense against public justice ofBelgium, and benefit of the judgment accrued to private judgment creditor, not Belgium). Thus,a judgment that awards compensation or restitution for the benefit of private individuals shouldnot automatically be considered penal in nature and therefore outside the scope of the Act simplybecause the action is brought on behalf of the private individuals by a government entity. Cf.U.S.-Australia Free Trade Agreement, art.14.7.2, U.S.-Austl., May 18, 2004 (providing thatwhen government agency obtains a civil monetary judgment for purpose of providing restitutionto consumers, investors, or customers who suffered economic harm due to fraud, judgmentgenerally should not be denied recognition and enforcement on ground that it is penal or revenuein nature, or based on other foreign public law).
5. Under subsection 3(b), a foreign-country money judgment is not within the scope ofthis Act “to the extent” that it comes within one of the excluded categories. Therefore, if aforeign-country money judgment is only partially within one of the excluded categories, the non-excluded portion will be subject to this Act.
6. Subsection 3(c) is new. The 1962 Act does not expressly allocate the burden of proofwith regard to establishing whether a foreign-country judgment is within the scope of the Act.
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Courts applying the 1962 Act generally have held that the burden of proof is on the personseeking recognition to establish that the judgment is final, conclusive and enforceable whererendered. E.g., Mayekawa Mfg. Co. Ltd. v. Sasaki, 888 P.2d 183, 189 (Wash. App. 1995)(burden of proof on creditor to establish judgment is final, conclusive, and enforceable whererendered); Bridgeway Corp. v. Citibank, 45 F.Supp.2d 276, 285 (S.D.N.Y. 1999) (party seekingrecognition must establish that there is a final judgment, conclusive and enforceable whererendered); S.C.Chimexim S.A. v. Velco Enterprises, Ltd., 36 F. Supp.2d 206, 212 (S.D.N.Y.1999) (Plaintiff has the burden of establishing conclusive effect). Subsection (3)(c) places theburden of proof to establish whether a foreign-country judgment is within the scope of the Act onthe party seeking recognition of the foreign-country judgment with regard to both subsection (a)and subsection (b).
SECTION 4. STANDARDS FOR RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT.
(a) Except as otherwise provided in subsections (b) and (c), a court of this state
shall recognize a foreign-country judgment to which this [act] applies.
(b) A court of this state may not recognize a foreign-country judgment if:
(1) the judgment was rendered under a judicial system that does not
provide impartial tribunals or procedures compatible with the requirements of due process of
law;
(2) the foreign court did not have personal jurisdiction over the defendant;
or
(3) the foreign court did not have jurisdiction over the subject matter.
(c) A court of this state need not recognize a foreign-country judgment if:
(1) the defendant in the proceeding in the foreign court did not receive
notice of the proceeding in sufficient time to enable the defendant to defend;
(2) the judgment was obtained by fraud that deprived the losing party of
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an adequate opportunity to present its case;
(3) the judgment or the [cause of action] [claim for relief] on which the
judgment is based is repugnant to the public policy of this state or of the United States;
(4) the judgment conflicts with another final and conclusive judgment;
(5) the proceeding in the foreign court was contrary to an agreement
between the parties under which the dispute in question was to be determined otherwise than by
proceedings in that foreign court;
(6) in the case of jurisdiction based only on personal service, the foreign
court was a seriously inconvenient forum for the trial of the action;
(7) the judgment was rendered in circumstances that raise substantial
doubt about the integrity of the rendering court with respect to the judgment; or
(8) the specific proceeding in the foreign court leading to the judgment
was not compatible with the requirements of due process of law.
(d) A party resisting recognition of a foreign-country judgment has the burden of
establishing that a ground for nonrecognition stated in subsection (b) or (c) exists.
Comment
Source: This section is based on Section 4 of the 1962 Act.
1. This Section provides the standards for recognition of a foreign-country moneyjudgment. Section 7 sets out the effect of recognition of a foreign-country money judgmentunder this Act.
2. Recognition of a judgment means that the forum court accepts the determination oflegal rights and obligations made by the rendering court in the foreign country. See, e.g.Restatement (Second) of Conflicts of Laws, Ch. 5, Topic 3, Introductory Note (recognition offoreign judgment occurs to the extent the forum court gives the judgment “the same effect withrespect to the parties, the subject matter of the action and the issues involved that it has in the
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state where it was rendered.”) Recognition of a foreign-country judgment must be distinguishedfrom enforcement of that judgment. Enforcement of the foreign-country judgment involves theapplication of the legal procedures of the state to ensure that the judgment debtor obeys theforeign-country judgment. Recognition of a foreign-country money judgment often is associatedwith enforcement of the judgment, as the judgment creditor usually seeks recognition of theforeign-country judgment primarily for the purpose of invoking the enforcement procedures ofthe forum state to assist the judgment creditor’s collection of the judgment from the judgmentdebtor. Because the forum court cannot enforce the foreign-country judgment until it hasdetermined that the judgment will be given effect, recognition is a prerequisite to enforcement ofthe foreign-country judgment. Recognition, however, also has significance outside theenforcement context because a foreign-country judgment also must be recognized before it canbe given preclusive effect under res judicata and collateral estoppel principles. The issue ofwhether a foreign-country judgment will be recognized is distinct from both the issue of whetherthe judgment will be enforced, and the issue of the extent to which it will be given preclusiveeffect.
3. Subsection 4(a) places an affirmative duty on the forum court to recognize a foreign-country money judgment unless one of the grounds for nonrecognition stated in subsection (b) or(c) applies. Subsection (b) states three mandatory grounds for denying recognition to a foreign-country money judgment. If the forum court finds that one of the grounds listed in subsection (b)exists, then it must deny recognition to the foreign-country money judgment. Subsection (c)states eight nonmandatory grounds for denying recognition. The forum court has discretion todecide whether or not to refuse recognition based on one of these grounds. Subsection (d) placesthe burden of proof on the party resisting recognition of the foreign-country judgment to establishthat one of the grounds for nonrecognition exists.
4. The mandatory grounds for nonrecognition stated in subsection (b) are identical to themandatory grounds stated in Section 4 of the 1962 Act. The discretionary grounds stated insubsection 4(c)(1) through (6) are based on subsection 4(b)(1) through (6) of the 1962 Act. Thediscretionary grounds stated in subsection 4(c)(7) and (8) are new.
5. Under subsection (b)(1), the forum court must deny recognition to the foreign-countrymoney judgment if that judgment was “rendered under a judicial system that does not provideimpartial tribunals or procedures compatible with the requirements of due process of law.” Thestandard for this ground for nonrecognition “has been stated authoritatively by the SupremeCourt of the United States in Hilton v. Guyot, 159 U.S.113, 205 (1895). As indicated in thatdecision, a mere difference in the procedural system is not a sufficient basis for nonrecognition. A case of serious injustice must be involved.” Cmt §4, Uniform Foreign Money-JudgmentRecognition Act (1962). The focus of inquiry is not whether the procedure in the renderingcountry is similar to U.S. procedure, but rather on the basic fairness of the foreign-countryprocedure. Kam-Tech Systems, Ltd. V. Yardeni, 74 A.2d 644, 649 (N.J. App. 2001)(interpreting the comparable provision in the 1962 Act); accord, Society of Lloyd’s v. Ashenden,233 F.3d 473 (7 Cir. 2000) (procedures need not meet all the intricacies of the complex conceptth
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of due process that has emerged from U.S. case law, but rather must be fair in the broaderinternational sense) (interpreting comparable provision in the 1962 Act). Procedural differences,such as absence of jury trial or different evidentiary rules are not sufficient to justify denyingrecognition under subsection (b)(1), so long as the essential elements of impartial administrationand basic procedural fairness have been provided in the foreign proceeding. As the U.S.Supreme Court stated in Hilton:
Where there has been opportunity for a full and fair trial abroad before a court ofcompetent jurisdiction conducting the trial upon regular proceedings, after duecitation or voluntary appearance of the defendant, and under a system ofjurisprudence likely to secure an impartial administration of justice between thecitizens of its own country and those of other countries, and there is nothing toshow either prejudice in the court, or in the system of laws under which it wassitting, or fraud in procuring the judgment, or any other special reason why thecomity of this nation should not allow it full effect then a foreign-countryjudgment should be recognized. Hilton, 159 U.S. at 202.
6. Under section 4(b)(2), the forum court must deny recognition to the foreign-countryjudgment if the foreign court did not have personal jurisdiction over the defendant. Section 5(a)lists six bases for personal jurisdiction that are adequate as a matter of law to establish that theforeign court had personal jurisdiction. Section 5(b) makes clear that other grounds for personaljurisdiction may be found sufficient.
7. Subsection 4(c)(2) limits the type of fraud that will serve as a ground for denyingrecognition to extrinsic fraud. This provision is consistent with the interpretation of thecomparable provision in subsection 4(b)(2) of the 1962 Act by the courts, which have found thatonly extrinsic fraud — conduct of the prevailing party that deprived the losing party of anadequate opportunity to present its case — is sufficient under the 1962 Act. Examples ofextrinsic fraud would be when the plaintiff deliberately had the initiating process served on thedefendant at the wrong address, deliberately gave the defendant wrong information as to the timeand place of the hearing, or obtained a default judgment against the defendant based on a forgedconfession of judgment. When this type of fraudulent action by the plaintiff deprives thedefendant of an adequate opportunity to present its case, then it provides grounds for denyingrecognition of the foreign-country judgment. Extrinsic fraud should be distinguished fromintrinsic fraud, such as false testimony of a witness or admission of a forged document intoevidence during the foreign proceeding. Intrinsic fraud does not provide a basis for denyingrecognition under subsection 4(c)(2), as the assertion that intrinsic fraud has occurred should beraised and dealt with in the rendering court.
8. The public policy exception in subsection 4(c)(3) is based on the public policyexception in subsection 4(b)(3) of the 1962 Act, with one difference. The public policyexception in the 1962 Act states that the relevant inquiry is whether “the [cause of action] [claimfor relief] on which the judgment is based” is repugnant to public policy. Based on this “cause
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of action” language, some courts interpreting the 1962 Act have refused to find that a publicpolicy challenge based on something other than repugnancy of the foreign cause of action comeswithin this exception. E.g., Southwest Livestock & Trucking Co., Inc. v. Ramon, 169 F.3d 317(5 Cir. 1999) (refusing to deny recognition to Mexican judgment on promissory note withth
interest rate of 48% because cause of action to collect on promissory note does not violate publicpolicy ); Guinness PLC v. Ward, 955 F.2d 875 (4 Cir. 1992) (challenge to recognition based onth
post-judgment settlement could not be asserted under public policy exception); The Society ofLloyd’s v. Turner, 303 F.3d 325 (5 Cir. 2002) ( rejecting argument legal standards applied toth
establish elements of breach of contract violated public policy because cause of action for breachof contract itself is not contrary to state public policy); cf. Bachchan v. India AbroadPublications, Inc., 585 N.Y.S.2d 661 (N.Y. Sup. Ct. 1992) (judgment creditor argued British libeljudgment should be recognized despite argument it violated First Amendment because New Yorkrecognizes a cause of action for libel). Subsection 4(c)(3) rejects this narrow focus by providingthat the forum court may deny recognition if either the cause of action or the judgment itselfviolates public policy. Cf. Restatement (Third) of the Foreign Relations Law of the UnitedStates, § 482(2)(d) (1986) (containing a similarly-worded public policy exception to recognition).
Although subsection 4(c)(3) of this Act rejects the narrow focus on the cause of action under the 1962 Act, it retains the stringent test for finding a public policy violation applied bycourts interpreting the 1962 Act. Under that test, a difference in law, even a marked one, is notsufficient to raise a public policy issue. Nor is it relevant that the foreign law allows a recoverythat the forum state would not allow. Public policy is violated only if recognition or enforcementof the foreign-country judgment would tend clearly to injure the public health, the public morals,or the public confidence in the administration of law, or would undermine “that sense of securityfor individual rights, whether of personal liberty or of private property, which any citizen oughtto feel.” Hunt v. BP Exploration Co. (Libya) Ltd., 492 F. Supp. 885, 901 (N.D. Tex. 1980).
The language “or of the United States” in subsection 4(c)(3), which does not appear in the1962 Act provision, makes it clear that the relevant public policy is that of both the State inwhich recognition is sought and that of the United States. This is the position taken by the vastmajority of cases interpreting the 1962 public policy provision. E.g., Bachchan v. India AbroadPublications, Inc., 585 N.Y.S.2d 661 (Sup.Ct. N.Y. 1992) (British libel judgment deniedrecognition because it violates First Amendment).
9. Subsection 4(c)(5) allows the forum court to refuse recognition of a foreign-countryjudgment when the parties had a valid agreement, such as a valid forum selection clause oragreement to arbitrate, providing that the relevant dispute would be resolved in a forum otherthan the forum issuing the foreign-country judgment. Under this provision, the forum court mustfind both the existence of a valid agreement and that the agreement covered the subject matterinvolved in the foreign litigation resulting in the foreign-country judgment.
10. Subsection 4(c)(6) authorizes the forum court to refuse recognition of a foreign-country judgment that was rendered in the foreign country solely on the basis of personal service
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when the forum court believes the original action should have been dismissed by the court in theforeign country on grounds of forum non conveniens.
11. Subsection 4(c)(7) is new. Under this subsection, the forum court may denyrecognition to a foreign-country judgment if there are circumstances that raise substantial doubtabout the integrity of the rendering court with respect to that judgment. It requires a showing ofcorruption in the particular case that had an impact on the judgment that was rendered. Thisprovision may be contrasted with subsection 4(b)(1) , which requires that the forum court refuserecognition to the foreign-country judgment if it was rendered under a judicial system that doesnot provide impartial tribunals. Like the comparable provision in subsection 4(a)(1) of the 1962Act, subsection 4(b)(1) focuses on the judicial system of the foreign country as a whole, ratherthan on whether the particular judicial proceeding leading to the foreign-country judgment wasimpartial and fair. See, e.g., The Society of Lloyd’s v. Turner, 303 F.3d 325, 330 (5 Cir. 2002)th
(interpreting the 1962 Act); CIBC Mellon Trust Co. v. Mora Hotel Corp,. N.V., 743 N.Y.S.2d408, 415 (N.Y. App. 2002) (interpreting the 1962 Act); Society of Lloyd’s v. Ashenden, 233 F.3d473, 477 (7 Cir. 2000) (interpreting the 1962 Act). On the other hand, subsection 4(c)(7)th
allows the court to deny recognition to the foreign-country judgment if it finds a lack ofimpartiality and fairness of the tribunal in the individual proceeding leading to the foreign-country judgment. Thus, the difference is that between showing, for example, that corruptionand bribery is so prevalent throughout the judicial system of the foreign country as to make thatentire judicial system one that does not provide impartial tribunals versus showing that bribery ofthe judge in the proceeding that resulted in the particular foreign-country judgment underconsideration had a sufficient impact on the ultimate judgment as to call it into question.
12. Subsection 4(c)(8) also is new. It allows the forum court to deny recognition to theforeign-country judgment if the court finds that the specific proceeding in the foreign court wasnot compatible with the requirements of fundamental fairness. Like subsection 4(c)(7), it can becontrasted with subsection 4(b)(1), which requires the forum court to deny recognition to theforeign-country judgment if the forum court finds that the entire judicial system in the foreigncountry where the foreign-country judgment was rendered does not provide procedurescompatible with the requirements of fundamental fairness. While the focus of subsection 4(b)(1)is on the foreign country’s judicial system as a whole, the focus of subsection 4(c)(8) is on theparticular proceeding that resulted in the specific foreign-country judgment under consideration.Thus, the difference is that between showing, for example, that there has been such a breakdownof law and order in the particular foreign country that judgments are rendered on the basis ofpolitical decisions rather than the rule of law throughout the judicial system versus a showingthat for political reasons the particular party against whom the foreign-country judgment wasentered was denied fundamental fairness in the particular proceedings leading to the foreign-country judgment.
Subsections 4(c)(7) and (8) both are discretionary grounds for denying recognition, whilesubsection 4(b)(1) is mandatory. Obviously, if the entire judicial system in the foreign countryfails to satisfy the requirements of impartiality and fundamental fairness, a judgment rendered in
14
that foreign country would be so compromised that the forum court should refuse to recognize itas a matter of course. On the other hand, if the problem is evidence of a lack of integrity orfundamental fairness with regard to the particular proceeding leading to the foreign-countryjudgment, then there may or may not be other factors in the particular case that would cause theforum court to decide to recognize the foreign-country judgment. For example, a forum courtmight decide not to exercise its discretion to deny recognition despite evidence of corruption orprocedural unfairness in a particular case because the party resisting recognition failed to raisethe issue on appeal from the foreign-country judgment in the foreign country, and the evidenceestablishes that, if the party had done so, appeal would have been an adequate mechanism forcorrecting the transgressions of the lower court.
13. Under subsection 4(d), the party opposing recognition of the foreign-countryjudgment has the burden of establishing that one of the grounds for nonrecognition set out insubsection 4(b) or (c) applies. The 1962 Act was silent as to who had the burden of proof toestablish a ground for nonrecognition and courts applying the 1962 Act took different positionson the issue. Compare Bridgeway Corp. v. Citibank, 45 F.Supp. 2d 276, 285 (S.D.N.Y. 1999)(plaintiff has burden to show no mandatory basis under 4(a) for nonrecognition exists; defendanthas burden regarding discretionary bases) with The Courage Co. LLC v. The ChemShare Corp.,93 S.W.3d 323, 331 (Tex. App. 2002) (party seeking to avoid recognition has burden to proveground for nonrecognition). Because the grounds for nonrecognition in Section 4 are in thenature of defenses to recognition, the burden of proof is most appropriately allocated to the partyopposing recognition of the foreign-country judgment.
SECTION 5. PERSONAL JURISDICTION.
(a) A foreign-country judgment may not be refused recognition for lack of
personal jurisdiction if:
(1) the defendant was served with process personally in the foreign
country;
(2) the defendant voluntarily appeared in the proceeding, other than for
the purpose of protecting property seized or threatened with seizure in the proceeding or of
contesting the jurisdiction of the court over the defendant;
(3) the defendant, before the commencement of the proceeding, had
agreed to submit to the jurisdiction of the foreign court with respect to the subject matter
15
involved;
(4) the defendant was domiciled in the foreign country when the
proceeding was instituted or was a corporation or other form of business organization that had its
principal place of business in, or was organized under the laws of, the foreign country;
(5) the defendant had a business office in the foreign country and the
proceeding in the foreign court involved a [cause of action] [claim for relief] arising out of
business done by the defendant through that office in the foreign country; or
(6) the defendant operated a motor vehicle or airplane in the foreign
country and the proceeding involved a [cause of action] [claim for relief] arising out of that
operation.
(b) The list of bases for personal jurisdiction in subsection (a) is not exclusive.
The courts of this state may recognize bases of personal jurisdiction other than those listed in
subsection(a) as sufficient to support a foreign-country judgment.
Comment
Source: This provision is based on Section 5 of the 1962 Act. Its substance is the same asthat of Section 5 of the 1962 Act, except as noted in Comment 2 below with regard to subsection5(a)(4).
1. Under section 4(b)(2), the forum court must deny recognition to the foreign-countryjudgment if the foreign court did not have personal jurisdiction over the defendant. Section 5(a)lists six bases for personal jurisdiction that are adequate as a matter of law to establish that theforeign court had personal jurisdiction. Section 5(b) makes it clear that these bases of personaljurisdiction are not exclusive. The forum court may find that the foreign court had personaljurisdiction over the defendant on some other basis.
2. Subsection 5(a)(4) of the 1962 Act provides that the foreign court had personaljurisdiction over the defendant if the defendant was “a body corporate” that “had its principalplace of business, was incorporated, or had otherwise acquired corporate status, in the foreignstate.” Subsection 5(a)(4) of this Act extends that concept to forms of business organization other
16
than corporations.
3. Subsection 5(a)(3) provides that the foreign court has personal jurisdiction over thedefendant if the defendant agreed before commencement of the proceeding leading to theforeign-country judgment to submit to the jurisdiction of the foreign court with regard to thesubject matter involved. Under this provision, the forum court must find both the existence of avalid agreement to submit to the foreign court’s jurisdiction and that the agreement covered thesubject matter involved in the foreign litigation resulting in the foreign-country judgment.
SECTION 6. PROCEDURE FOR RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT.
(a) If recognition of a foreign-country judgment is sought as an original matter,
the issue of recognition shall be raised by filing an action seeking recognition of the foreign-
country judgment.
(b) If recognition of a foreign-country judgment is sought in a pending action, the
issue of recognition may be raised by counterclaim, cross-claim, or affirmative defense.
Comment
Source: This section is new.
1. Unlike the 1962 Act, which was silent as to the proper procedure for seekingrecognition of a foreign-country judgment, Section 6 of this Act expressly sets out the ways inwhich the issue of recognition may be raised. Under section 6, the issue of recognition alwaysmust be raised in a court proceeding. Thus, section 6 rejects decisions under the 1962 Actholding that the registration procedure found in the Uniform Enforcement of Foreign JudgmentsAct could be utilized with regard to recognition of a foreign-country judgment. E.g. Society ofLloyd’s v. Ashenden, 233 F.3d 473 (7 Cir. 2000). The Enforcement Act deals solely with theth
enforcement of sister-state judgments and other judgments entitled to full faith and credit, notwith the recognition of foreign-country judgments.
More broadly, section 6 rejects the use of any registration procedure in the context of theforeign-country judgments covered by this Act. A registration procedure represents a balancebetween the interest of the judgment creditor in obtaining quick and efficient recognition andenforcement of a judgment when the judgment debtor has already been provided with anopportunity to litigate the underlying issues, and the interest of the judgment debtor in being
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provided an adequate opportunity to raise and litigate issues regarding whether the foreign-country judgment should be recognized. In the context of sister-state judgments, this balancefavors use of a truncated procedure such as that found in the Enforcement Act. Recognition ofsister-state judgments normally is mandated by the Full Faith and Credit Clause. Courtsrecognize only a very limited number of grounds for denying full faith and credit to a sister-statejudgment – that the rendering court lacked jurisdiction, that the judgment was procured by fraud,that the judgment has been satisfied, or that the limitations period has expired. Thus, thejudgment debtor with regard to a sister-state judgment normally does not have any grounds foropposing recognition and enforcement of the judgment. The extremely limited grounds fordenying full faith and credit to a sister-state judgment reflect the fact such judgments will havebeen rendered by a court that is subject to the same due process limitations and the same overlapof federal statutory and constitutional law as the forum state’s courts, and, to a large extent, thesame body of court precedent and socio-economic ideas as those shaping the law of the forumstate. Therefore, there is a strong presumption of fairness and competence attached to a sister-state judgment that justifies use of a registration procedure.
The balance between the benefits and costs of a registration procedure is significantlydifferent, however, in the context of recognition and enforcement of foreign-country judgments.Unlike the limited grounds for denying full faith and credit to a sister-state judgment, this Actprovides a number of grounds upon which recognition of a foreign-country judgment may bedenied. Determination of whether these grounds apply requires the forum court to look behindthe foreign-country judgment to evaluate the law and the judicial system under which theforeign- country judgment was rendered. The existence of these grounds for nonrecognitionreflects the fact there is less expectation that foreign-country courts will follow procedurescomporting with U.S. notions of fundamental fairness and jurisdiction or that those courts willapply laws viewed as substantively tolerable by U.S. standards than there is with regard to sister-state courts. In some situations, there also may be suspicions of corruption or fraud in theforeign-country proceedings. These differences between sister-state judgments and foreign-country judgments provide a justification for requiring judicial involvement in the decisionwhether to recognize a foreign- country judgment in all cases in which that issue is raised. Although the threshold for establishing that a foreign-country judgment is not entitled torecognition under Section 4 is high, there is a sufficiently greater likelihood that significantrecognition issues will be raised so as to require a judicial proceeding.
2. This Section contemplates that the issue of recognition may be raised either as anoriginal matter or in the context of a pending proceeding. Subsection 6(a) provides that in orderto raise the issue of recognition of a foreign-country judgment as an initial matter, the partyseeking recognition must file an action for recognition of the foreign-country judgment. Subsection 6(b) provides that when the recognition issue is raised in a pending proceeding, itmay be raised by counterclaim, cross-claim or affirmative defense, depending on the context inwhich it is raised. These rules are consistent with the way the issue of recognition most oftenwas raised in most states under the 1962 Act.
18
3. An action seeking recognition of a foreign-country judgment under this Section is anaction on the foreign-country judgment itself, not an action on the underlying cause of action thatgave rise to that judgment. The parties to an action under Section 6 may not relitigate the meritsof the underlying dispute that gave rise to the foreign-country judgment.
4. While this Section sets out the ways in which the issue of recognition of a foreign-country judgment may be raised, it is not intended to create any new procedure not currentlyexisting in the state or to otherwise effect existing state procedural requirements. The parties toan action in which recognition of a foreign-country judgment is sought under Section 6 mustcomply with all state procedural rules with regard to that type of action. Nor does this Actaddress the question of what constitutes a sufficient basis for jurisdiction to adjudicate withregard to an action under Section 6. Courts have split over the issue of whether the presence ofassets of the debtor in a state is a sufficient basis for jurisdiction in light of footnote 36 of theU.S. Supreme Court decision in Shaffer v. Heitner, 433 U.S. 186, 210 n.36 (1977). This Acttakes no position on that issue.
5. In states that have adopted the Uniform Foreign-Money Claims Act, that Act willapply to the determination of the amount of a money judgment recognized under this Act.
SECTION 7. EFFECT OF RECOGNITION OF FOREIGN-COUNTRY
JUDGMENT. If the court in a proceeding under Section 6 finds that the foreign-country
judgment is entitled to recognition under this [act] then, to the extent that the foreign-country
judgment grants or denies recovery of a sum of money, the foreign-country judgment is:
(1) conclusive between the parties to the same extent as the judgment of a sister
state entitled to full faith and credit in this state would be conclusive; and
(2) enforceable in the same manner and to the same extent as a judgment rendered
in this state.
Comment
Source: The substance of subsection 7(1) is based on Section 3 of the 1962 Act. Subsection 7(2) is new.
1. Section 5 of this Act sets out the standards for the recognition of foreign-countryjudgments within the scope of this Act, and places an affirmative duty on the forum court to
19
recognize any foreign-country judgment that meets those standards. Section 6 of this Act sets outthe procedures by which the issue of recognition may be raised. This Section sets out theconsequences of the decision by the forum court that the foreign-country judgment is entitled torecognition.
2. Under subsection 7(1), the first consequence of recognition of a foreign-countryjudgment is that it is treated as conclusive between the parties in the forum state. Section 7(1)does not attempt to establish directly the extent of that conclusiveness. Instead, it provides thatthe foreign-country judgment is treated as conclusive to the same extent that a judgment of asister state that had been determined to be entitled to full faith and credit would be conclusive. This means that the foreign-country judgment generally will be given the same effect in theforum state that it has in the foreign country where it was rendered. Subsection 7(1), however,sets out the minimum effect that must be given to the foreign-country judgment once recognized. The forum court remains free to give the foreign-country judgment a greater preclusive effect inthe forum state than the judgment would have in the foreign country where it was rendered. Cf.Restatement (Third) of the Foreign Relations Law of the United States, § 481 cmt c (1986).
3. Under subsection 7(2), the second consequence of recognition of a foreign-countryjudgment is that, to the extent it grants a sum of money, it is enforceable in the forum state inaccordance with the procedures for enforcement in the forum state and to the same extent that ajudgment of the forum state would be enforceable. Cf. Restatement (Third) of the ForeignRelations Law of the United States §481 (1986) (judgment entitled to recognition is enforceablein accordance with the procedure for enforcement of judgments applicable where enforcement issought). Thus, under subsection 7(2), once recognized, the foreign-country judgment has thesame effect and is subject to the same procedures, defenses and proceedings for reopening,vacating, or staying a judgment of a comparable court in the forum state, and can be enforced orsatisfied in the same manner as such a judgment of the forum state.
SECTION 8. STAY OF PROCEEDINGS PENDING APPEAL OF FOREIGN-
COUNTRY JUDGMENT. If a party establishes that an appeal from a foreign-country
judgment is pending or will be taken, the court may stay any proceedings with regard to the
foreign-country judgment until the appeal is concluded, the time for appeal expires, or the
appellant has had sufficient time to prosecute the appeal and has failed to do so.
Comment
Source: This section is the same substantively as section 6 of the 1962 Act, except that itadds as an additional measure for the duration of the stay “the time for appeal expires.”
20
1. Under Section 3 of this Act, a foreign-country judgment is not within the scope of thisAct unless it is conclusive and enforceable where rendered. Thus, if the effect of appeal underthe law of the foreign country in which the judgment was rendered is to prevent it from beingconclusive or enforceable between the parties, the existence of a pending appeal in the foreigncountry would prevent the application of this Act. Section 8 addresses a different situation. Itdeals with the situation in which either (1) the party seeking a stay has demonstrated that itintends to file an appeal in the foreign country, although the appeal has not yet been filed or (2)an appeal has been filed in the foreign country, but under the law of the foreign country filing ofan appeal does not affect the conclusiveness or enforceability of the judgment. Section 8 allowsthe forum court in those situations to determine in its discretion that a stay of proceedings isappropriate.
SECTION 9. STATUTE OF LIMITATIONS. An action to recognize a foreign-
country judgment must be commenced within the earlier of the time during which the foreign-
country judgment is effective in the foreign country or 15 years from the date that the foreign-
country judgment became effective in the foreign country.
Comment
Source: This Section is new. The 1962 Act did not contain a statute of limitations. Somecourts applying the 1962 Act have used the state’s general statute of limitations, e.g., Vrozos v.Sarantopoulos, 552 N.E.2d 1053 (Ill. App. 1990) (as Recognition Act contains no statute oflimitations, general five-year statute of limitations applies), while others have used the statute oflimitations applicable with regard to enforcement of a domestic judgment, e.g., La SocieteAnonyme Goro v. Conveyor Accessories, Inc., 677 N.E. 2d 30 (Ill. App. 1997).
1. Under Section 3 of this Act, this Act only applies to foreign-country judgments that areconclusive, and if the judgment grants recovery of a sum of money, enforceable where rendered. Thus, if the period of effectiveness of the foreign-country judgment has expired in the foreigncountry where the judgment was rendered, the foreign-country judgment would not be subject tothis Act. This means that the period of time during which a foreign-country judgment may berecognized under this Act normally is measured by the period of time during which thatjudgment is effective (that is, conclusive and, if applicable, enforceable) in the foreign countrythat rendered the judgment. If, however, the foreign-country judgment remains effective formore than fifteen years after the date on which it became effective in the foreign country, Section9 places an additional time limit on recognition of a foreign-country judgment. It provides that,if the foreign-country judgment remains effective between the parties for more than fifteen years,then an action to recognize the foreign-country judgment under this Act must be commencedwithin that fifteen year period.
21
2. Section 9 does not address the issue of whether a foreign-country judgment that can nolonger be the basis of a recognition action under this Act because of the application of the fifteen-year limitations period in Section 9 may be used for other purposes. For example, a commonrule with regard to judgments barred by a statute of limitations is that they still may be useddefensively for purposes of offset and for their preclusive effect. The extent to which a foreign-country judgment with regard to which a recognition action is barred by Section 9 may be usedfor these or other purposes is left to the other law of the forum state.
SECTION 10. UNIFORMITY OF INTERPRETATION. In applying and construing
this uniform act, consideration must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
Comment
Source: This Section is substantively the same as Section 8 of the 1962 Act. The sectionhas been rewritten to reflect current NCCUSL practice.
SECTION 11. SAVING CLAUSE. This [act] does not prevent the recognition under
principles of comity or otherwise of a foreign-country judgment not within the scope of this [act].
Comment
Source: This section is based on Section 7 of the 1962 Act.
1. Section 3 of this Act provides that this Act applies only to certain foreign-countryjudgments that grant or deny recovery of a sum of money. The purpose of this Act is to establishthe minimum standards for recognition of those judgments. Section 11 makes clear that nonegative implication should be read from the fact that this Act does not provide for recognition ofother foreign-country judgments. Rather, this Act simply does not address the issue of whetherforeign-country judgments not within its scope under Section 3 should be recognized. Courts arefree to recognize those foreign-country judgments not within the scope of this Act under commonlaw principles of comity or other applicable law.
SECTION 12. EFFECTIVE DATE.
[(a) This [act] takes effect … .
22
[(b) This [act] applies to all actions commenced on or after the effective date of
this [act] in which the issue of recognition of a foreign-country judgment is raised.]
Comment
Source: Subsection 12(a) is the same as Section 11 of the 1962 Act. Subsection 12(b) isnew.
1. Subsection 12(b) provides that this Act will apply to all actions in which the issue ofrecognition of a foreign-country judgment is raised that are commenced on or after the effectivedate of this Act. Thus, the application of this Act is measured not from the time the originalaction leading to the foreign-country judgment was commenced in the foreign country, but ratherfrom the time the action in which the issue of recognition is raised is commenced in the forumcourt. Subsection 12(b) does not distinguish between whether the purpose of the actioncommenced in the forum court was to seek recognition as an original matter under Subsection6(a) or was an action that was already pending when the issue of recognition was raised underSubsection 6(b).
SECTION 13. REPEAL. The following [acts] are repealed:
(a) Uniform Foreign Money-Judgments Recognition Act,
(b)
.]
Comment
Source: This Section is an updated version of Section 10 of the 1962 Act.
APPENDIX H
Legislative Fact Sheet - Foreign-Country Money Judgments Recognition Act
http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Foreign-Country%20Money%20Judgments%20Recognition%20Act[10/20/2017 9:07:44 PM]
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Legislative Fact Sheet - Foreign-Country Money
Judgments Recognition Act
Act Foreign-Country Money Judgments Recognition Act
Origin Completed by the Uniform Law Commissioners in 2005.
Description This act provides updated rules and procedures for the recognition of foreign
judgments.
Endorsements
Enactments Alabama, Arizona, California, Colorado, Delaware, District of Columbia, Georgia,
Hawaii, Idaho, Illinois, Indiana, Iowa, Michigan, Minnesota, Montana, Nevada, New
Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Texas, Virginia,
Washington
2017 Introductions Massachusetts, New Jersey
Staff Liaison(s) Kaitlin Wolff, Kaitlin Wolff
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