Enforcing Foreign Country Judgments in Colorado
| Publication year | 1984 |
| Pages | 381 |
| Citation | Vol. 13 No. 3 Pg. 381 |
1984, March, Pg. 381. Enforcing Foreign Country Judgments in Colorado
The hard-fought litigation concludes with the rendering of the verdict. Is this a cause for celebration? Perhaps. Judgments are fine, but clients want their money. Suppose one of the parties is not a resident of the jurisdiction where the judgment was entered. Article 4, § 1 of the U.S. Constitution requires that each state give full faith and credit to the public acts, records and judicial proceedings of every other state. The full faith and credit clause also supplies the power to enforce the judgment. Thus, judgments by courts in any of the states or territories are honored by courts of other jurisdictions. However, the full faith and credit clause does not give any right, privilege or immunity to judgments of courts of foreign countries.(fn1) It only applies to actions within the United States, and foreign countries do not take kindly to invasions on their sovereignty.
If a judgment is truly foreign, what can be done to collect it in Colorado? This article examines the process of recognition and enforcement of foreign judgments in this state.
Instead of relying on the full faith and credit clause, most U.S. courts have held that recognition of foreign judicial acts is governed by the doctrine of comity.(fn2) This was true in Colorado also until the adoption of the uniform acts, discussed below. Comity was originally defined by the U.S. Supreme Court in 1895,(fn3) and explained and extended recently by the Third Circuit Court of Appeals:
Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy in accommodation, comity does not achieve the force of an imperative or obligation. Rather, it is a nation's expression of understanding which demonstrates due regard to international duty and convenience and to the rights of persons protected by its own laws. Comity should be withheld only when its acceptance is contrary or prejudicial to the interests of the nation called upon to give it effect.(fn4)
According to some legal authorities, the modern concept of comity rests on the persuasiveness of the foreign judgment. Moreover, the courts have adopted a rational policy of discouraging repeated litigation of the same matters.(fn5) Although courts are more apt to apply comity to enforce a foreign judgment, there is still uncertainty as to the uniformity of application.
Under common law, a foreign country judgment is not directly entitled to enforcement.(fn6) The local court must recognize the validity of the foreign country judgment before it enters its own judgment, which will then be enforced. Recognition of a foreign country judgment occurs when the host country's court determines that a matter has been decided previously by a foreign court. The host court then concludes that there has been a final resolution of the matter and that further litigation is not necessary.(fn7)
Therefore, enforcement of a judgment may come only after the foreign country judgment has been recognized by the local court and when the requesting party receives the relief requested.(fn8) It should be noted that, although a judgment will only be enforced after it is recognized, some state courts have recognized a judgment and then refused to enforce it.(fn9)
Neither the U.S. Supreme Court nor the Congress has determined whether state or federal law governs the recognition and enforcement of foreign nation judgments. In addition, there are no treaties governing the recognition and enforcement of foreign country judgments. Without guidance from either Congress or the Supreme Court, most state and federal courts have held that state law governs.(fn10) Until state law is preempted by federal statute or decision, Colorado courts will continue to rely on local law.
There is no current legislation pending that would put recognition and enforcement of foreign judgments under federal law. Likewise, the U.S. Supreme Court is not scheduled to hear any cases
involving this issue. There is some question as to how the Supreme Court would react should it be faced with the issue. The court could follow the policy set forth in Erie R.R. Co. v. Tompkins, and hold that enforcement of judgments is a matter within state control as in domestic cases.(fn11) The court could also decide to the contrary, however, and hold that state courts intrude in the field of foreign affairs when they decide whether the judgments of other countries should be enforced.(fn12) The same conclusion might be reached through a different theory---the court might hold that federal law controls, using the same theory as when it federalized the act of state doctrine.(fn13)
To simplify recognition and enforcement of foreign country judgments, Colorado has adopted both the Uniform Foreign Money Judgments Recognition Act ("Uniform Recognition Act") and the Uniform Enforcement of Foreign Judgments Act ("Uniform Enforcement Act.")(fn14) The original drafters of the two uniform acts intended that they alter the traditional rule of recognition and enforcement of local judgments (discussed above.)(fn15) The Uniform Judgments Act provides for the recognition of a foreign country judgment granting or denying a sum of money. Judgments for taxes, fines, penalties or support in matrimonial or family matters are excluded by the Act as are judgments granting equitable relief.(fn16) Money judgments are recognized if the judgment is (1) final, (2) conclusive, and (3) enforceable where rendered.(fn17)
A comment to the Uniform Judgments Act states that the Act is to be enforced by the methods provided in the Uniform Enforcement Act, which provides for the registration of foreign judgments without the necessity for filing a new suit to obtain recognition.(fn18) Regrettably, neither act provides for translation of a foreign country money judgment into U.S. dollars. Without direction from either of the uniform acts, the local court must choose a date to set the exchange rate. Because of the oversight, recognition must occur to set the exchange rate before the judgment can...
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