Cross-border judgments and the public policy exception: solving the foreign judgment quandary by way of tribal courts.

• Author: Vest, Lindsay Loudon

INTRODUCTION

In their 1968 seminal survey on the "recognition of foreign adjudications," Professors Arthur von Mehren and Donald Trautman set out five reasons attesting to the vital importance of recognizing judgments rendered in foreign nations. (1) The policies they highlighted focused on efficiency, protection of the successful party, forum shopping, grant of authority to the more appropriate jurisdiction, and "an interest in fostering stability and unity in an international order in which many aspects of life are not confined to any single jurisdiction." (2) Today, more than thirty-five years later, their reasoning rings true, as the issues surrounding both the recognition and the enforcement of foreign judgments have never been more salient. (3) Breakthroughs in real-time communication in the last twenty-five years are only one reason for ever-blurring borders between nations. As human action and the need for efficiency increasingly demand that the judgments of one country's courts are recognized and enforced by other nations, there is a common acknowledgment that ours must be a global legal system. (4) Despite the importance of establishing such a policy of general acceptance, the United States has yet to codify an agreement with any other nation regarding the recognition and enforcement of judgments. (5)

While the Brussels Convention has governed relations between the courts of many European countries since 1968, (6) the United States and other countries that are members of the Hague Conference--and therefore potential parties to a relevant convention--have yet to successfully ratify an agreement on jurisdiction and judgments. (7) The slow pace of negotiations leading up to ratification is due in large part to the difficulties member nations are facing in reaching an acceptable conclusion regarding certain key issues before the Conference. One such issue is rooted in the sometimes conflicting public policies and associated legal predispositions of member nations.

Historically, many courts, both in the United States and abroad, have reserved the right, either implicitly or statutorily, to refuse to recognize a judgment from a foreign court if such judgment violates important public policies of the recognizing state. The Brussels Convention is just one document that provides for such a public policy exception. (8) However, the possibility of crisis looms when public policies in forum nations are disparate enough that such an exception threatens to become a catchall or "escape" provision. (9) Though it is widely accepted that the bar is high and that the public policy exception should not be used indiscriminately, it is generally at the discretion of the deciding court to determine whether or not the judgment to be recognized clearly "undermine[s] the public interest, the public confidence in the administration of the law, or security for individual rights of personal liberty or of private property." (10) It is thus the case that each court will apply the standard in a distinct way, and considered in the context of the proposed Hague Convention--where there is no plan to establish an authority to oversee or review potential abuses of such a provision--the fear of a public policy exception taking on a life of its own is a viable concern. (11)

The United States is in a difficult position with regard to an international recognition and enforcement agreement. Despite an ever-increasing need, the U.S. has never successfully been party to such an agreement, whereas many of the European countries who would be party to a Hague Convention are already signatories to the Brussels Convention. Parties to the Brussels Convention have existing relationships, which suggests that they are unlikely to face the same level of public policy apprehension with regard to one another. As a result, many of the public policy concerns that stem from the proposed Hague Convention are those implicating the U.S.--either as the forum where judgment was initially handed down or as the forum in which a plaintiff seeks recognition. The situation is complicated by the fact that the U.S. is left without a key negotiating chip because, in comparison to other nations, the U.S. historically has been generous in recognizing and enforcing judgments. (12)

To best confront these obstacles, one must look to existing practices in the United States that present similar public policy issues. The relationships between state courts are governed on both a constitutional and statutory level by the notion of "full faith and credit" and, hence, do not allow for public policy exceptions. (13) Therefore, the movement of judgments from state to state has not encountered the same problems presented by the movement of judgments between the U.S. and other countries. Because Indian tribes do not fit into any of the categories governed by the Full Faith and Credit Clause, (14) the relationship between tribal courts and courts of the United States, both state and federal, is similar to the relationship between the courts of foreign nations. The cultural divide that gives rise to differences in public policy between foreign nations is also apparent in the interactions between the United States and tribes. Many of the same complications arise, and many of the same negotiations occur.

Part I of this Comment sets the stage for the analysis by outlining pertinent aspects of the relationship between, first, tribal courts and U.S. courts and, second, U.S. courts and courts of foreign nations. In addition, Part I serves as an introduction to the public policy exception and the obstacle it presents when attempting to move judgments across boundaries. Part II identifies some of the differences between the relationship of the U.S. with tribal nations and the relationship of the U.S. with foreign nations, and acknowledges the limitations of the comparison. Part III introduces three potential solutions to the inherent dangers of a public policy exception, and Part IV discusses the necessary process that the U.S. must undergo in order to successfully adopt the most promising of the three solutions, a constitution-like document that establishes a standard of public policy by which participating nations would be encouraged to abide.

1. LAYING THE GROUNDWORK: PUBLIC POLICY AND THE RELATIONSHIP BETWEEN DISPARATE COURTS

   Indian tribes are recognized as sovereign entities separate from the federal and state governments of the United States. (15) The intricacies of the relationship between tribes and the state and federal governments are complex, the source of more than one scholarly analysis, and not the purpose of this Comment. Rather, this Comment first looks at the ways that the United States and tribal nations have learned to coexist with regard to recognition of judgments. It then employs that experience to develop a better understanding of how the United States can apply the lessons learned within our own boundaries to the ongoing issues surrounding the recognition of foreign judgments.

   1. The Relationship Between Tribal Courts and the Courts of the United States

      To start, it is necessary to characterize the relationship between tribal courts and the courts of the United States. Though the debate is ongoing, it is generally accepted that the Full Faith and Credit Clause (16) does not apply to tribal courts. (17) On a statutory level, legal scholars have argued for the exclusion of tribes from the doctrine on a number of fronts. First, [section] 1738, which implements the Full Faith and Credit Clause, refers to states, territories, and possessions with no reference to tribes. (18) Second, Congress has passed a number of statutes that extend full faith and credit terms to the tribes on specific causes of action. (19)

      Beyond the statutory evidence, there are practical reasons why full faith and credit is not the most viable way to approach the movement of judgments to and from tribal courts. As set out in the Constitution, full faith and credit embraces res judicata and makes it the "uniform law of the Union, thereby in large part creating the so-called 'sisterhood' of the states as we know it." (20) By doing this, the doctrine succeeds in achieving a symmetry between state courts that glosses over any cultural differences that exist among the respective states by making recognition of judgments a constant and dependable force. According to the mandates of full faith and credit, "[r]ecognition or enforcement of a sister state judgment is required even where the underlying claim is contrary to the public policy of the state where enforcement is sought." (21) The establishment of this type of "symmetrical" legal system furthers the purpose of uniting the states into a cohesive nation, where they coexist semi-independently under one overarching legal system. In fact, full faith and credit, as set out in the Constitution, implemented by [section] 1738, and interpreted by the courts, specifically disallows any departure on the basis of cultural differences or public policy. (22) The full faith and credit doctrine successfully created a homogeneous legal system. However, the relationship between the U.S. and tribal nations is different from the union between sister states.

      In an article examining the theories of tribal judgment enforcement, Professor Robert Laurence reasoned that "[s]ymmetry, reciprocity, retaliation and full faith and credit are all principles in furtherance of the overriding objectives of uniformity and sameness. However, most everything we know about Indian law is affected by the overriding concepts of variety and difference." (23) Tribal nations exist separately within the boundaries of the United States in order to safeguard the differences that make them unique. (24) It logically follows that the theories upon which the laws of the states are built may not be the same as those upon which the laws of a tribe are structured. Accordingly, to insist that a...