The Enforcement of Foreign Judgments in American Courts

Authorby Captain Donald B. Smith
Pages01

I. INTRODUCTION

This article is a discussion af the efficacy in United States courts of money judgments rendered by the courts of foreign countries and of the relation of prevailing civil rules to the pasition of the military services regarding unsatisfied foreign money judgments against individual service members. Ancillary to this discussion is an examination of the treatment afforded domestic judgments by foreign courts in view of the reciprocal treatment afforded foreign judgments by mme domestic jurisdictions. The concluding purpose of this article is to illustrate the immediate need far uniformity among domestic courts in their approach to the enforcement of fareign judgments and explore the mean8 of accomplishing this uniformity.

The enforcement of foreign money judgments' by domestic courts has become a legal problem of increasing international compiexity, directly affecting the judicial, political and cammer-cia1 relationships between nations. The impact an the relations of any two particular nations is, in reality, the Bum total of the treatment afforded one nation's individual judgment creditors when they seek to enforce domestic judgments in the national courts of their foreign judgment debtors. The French citizen bringing action in a court in the United States to enforce a valid French judgment against an American judgment debtor suffers an obvious injury if his judgment is not treated as conclusive an the merits. The attendant expense, loss of time and uncertainty of outcome in the process of relitigation work a cumulative injustice. When the courts of France retaliate against United

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This article was sdspted from a them presented to The Judge Advocate General's School, U.S. Army, Charlottemlle, Virginia, while the author wag a member of the Tenth Career Course. The opiniann and eonelusions presented herein are those of the author and do not necesaerily represent the YEWS of The Judge Advocate Generape School or any other governments1 agency.

**JAGC, U.S. Amy; Office of the Staff Judge Advocate, Fort Jackson, South Carolins; LL.B., 1867, University of Kentucky, Member of the Kentucky Bar.

1 The t e m iorazgn judgment commonly connotes the judgments of dater states swell as the judgmentr of farelo countries. An vied herein, the term is reatrieted to the pdmenta of foreien countries unlesa otherwise indicated. *oo blMB 1

States judgment creditors in their courts by requiring trial de novo of the issues, the injustice becomes reciprocal. Conversely, by giving conclusive effect to the money judgments of foreign courts the ends of justice are served for the individual litigants. Also, a more favorable climate is created for the conduct of cammercial activity and political understanding between nations.

among the free nations makes the problem of recognizinp and enforcing foreign money Judgments a significant one far the legal profession generally. The attendant increase in litigation aecompanying expanding international business activity heralds a cnti-cal need far judicial harmony comprehensive to the commercial transaction conceived in Paris and consummated in New Yark. Academic interest in the abstract as incentive for the study and understanding of foreign law and foreign judicial P ~ O C ~ J S is being

supplanted by the practical needs inherent in keeping the legal profession abreast of economic trends.

In view of the continuing Communist threat of world damination and subjugation it may be safely assumed that large contingent8 of American armed forces will continue to be based on friendly foreign sail BJ a bulwark to the defense of host nations for some time io come. Although our service personnel, their dependents and persons accompanying the farces form the largest goodwill ambassador corps our country has ever known, it is inevitable that, in the conduct of their daily affairs, civil disputes between them and their hosts will arise. The problem of providing forums for the ~ettlement of civil disputes between these overseas farces and host citizenries has been largely solved as a result of the treaties and agreements concerning the status of our forcea.' Frustration of these agreements and the good relations sought to be maintained by them are experienced, however, when a litigant has been awarded a judgment which he cannot enforce against an American serviceman who has returned to his native country without having satisfied this legal obligation. In view of the relatively minor sums involved in most individual actions, it is not practical for the foreign money judgment creditor to re-tain counsel in the United States to sue on his judgment unless he ia assured that it will be treated s.8 conclusive on the merits by an American court. Otherwise, the expense of relitigation in the vast majority of the cases amounts to more than the amount of

The unprecedented increase in material product

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* E g , Agreement Between the Partier ta the North Atlantic Treaty Rogarding the Statns of Their Foreea, June 19, 1911, art. '7111, para. 9 [I95314 U.S.T. & O.I.A. 1782, T.I.A.S.

No. 2846, 199 U.N.T.S. 67.

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ENFORCEMENT OF FOREIGN JUDGMENTS

the claim involved. In the aggregate, these unsatisfied money judgments against our service personnel present a public relations problem of the greatest magnitude for the United States.

The efficacy of foreign money judgments in United States courts is a matter af particular significance to the military lawyer. The scope of this problem area is illustrated by the ex-perience of the Command Judge Advocate, United States Army, Europe, during the period from January 1959 through September 1961, In 1969, approximately 7,600 documents concerning civil ac-tions invoiving United States Army personnel in Germany were processed through the International Affairs Section of the command. In 1960 the total number of documeets processed rose to approximately 11,500, and far the first three quarters of 1961 the figure had already approximated 9,800 documenta.' That these figures involve only A m y personnel and oniy one foreign country is indicative of the volume of civil actions generated by our worldwide troop commitments.

Aside from the impact on our relations with friendly foreign citizenries resulting from the iack of satisfaction of money judgments rendered against American service personnel, the problem is a dual one for military lawyers. First, individual military judgment creditors seek advice concerning the validity and effect of foreign judgments rendered against them. The military lawyer must be familiar with the differing rules prevailing in the various federal and state jurisdictions in the United States. The application of these rules to a specific factual situation also requires a knowledge of the law of fareign judgments of the cauntry in which the judgment was rendered, and the relationship of the iaw of that foreign country with the law of the domestic court in which enforcement is sought. Secondly, commanders seek guidance on the proper disposition af complaints against members of their commands alleged to be evading satisfaction of just foreign money judgments. The military lawyer is thus called upon to determine the policy of the military services re-garding unsatisfied foreign money judgments against their members, and advise the commander of the administrative and disciplinary courses of action open to him in particular cases.

Letter From Lieutenant Colonel Edward W.

Havghney, Chief, Inter. national Affairs Branch, Oflee of the Judw Advocate, Headquartera. United States Army, Europe. to the author, October 23. 1861. A substantial number of these documents involved paternity actions, snd while some eases generated the processing of more than one document, the majarlty of the volume of documents do represent Individual cases.

*co BMbB 8

The desire of mankind to establish a just and lasting peace through world law emphasizes the need far nations to afford a greater measure of respect for the judicial orders of other caun-tries. By giving conclusive effect to the valid money judgments of foreign countries, domestic courts transcend distrust of other legal systems and the cultures they are designed to serve. In view of our international image as a nation seeking Justice far all nationalities, it is anomalous that courts in the United States have not taken a mare progressive approach to the enforcement of judgments of other countries. Since the law of foreign judgments in this country has developed exclusively as judge-made law, the rules of various jurisdictions have become dissimilar and, in many cases, unjust for judgment creditors of particular foreign countries. Political, social and economic trends, coupled with a demand for individual justice, dictate an immediate need far uniformity of treatment of foreign judgments among the various jurisdictions of the United States. This need is punctuated by the demand far rejecting judicial discrimination against valid judgments rendered by the courts of particular countries of the free world. Through treaty arrangements the United States can truly meet her obligation a~ leader of the movement for world peace through law.

In examining the efficacy of foreign judgments in United States courts, the subject matter of this article will be restricted to in personam money judgments. Consideration of installment alimony awards' and paternity support judgments' are not included. Foreign judgments in rem and quasi in rem present no enforcement problem for courts since the res involved is within the territorial jurisdiction of the court rendering the judgment or de-cree.# Judgments involving status, such as marriage, divorce and adoption, if valid ahere rendered, are generally regarded as valid everywhere:

a Foreign judgments must be reduced to B sum certain to be enforceable in United States courts, and installment awards do not satisfy this requirement. Gaadrieh, Conflict of Laws 5 215 i3d ed 1948).

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