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Whose Law of Personal Jurisdiction? the Choice of Law Problem in the Recognition of Foreign Judgments

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Whose Law of Personal Jurisdiction? the Choice of Law Problem in the Recognition of Foreign Judgments WHOSE LAW OF PERSONAL JURISDICTION? THE CHOICE OF LAW PROBLEM IN THE RECOGNITION OF FOREIGN JUDGMENTS ∗ TANYA J. MONESTIER INTRODUCTION ............................................................................................. 1730 I. THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN THE UNITED STATES ...................................................................... 1733 II. WHOSE LAW OF PERSONAL JURISDICTION? ...................................... 1739 A. There Is No Statutory Authority for Assessing Jurisdiction According to the Law of F1 ....................................................... 1744 B. U.S. Courts Are Ill-Equipped to Assess Whether a Foreign Court Had Personal Jurisdiction Under Foreign Law .............. 1748 C. Second Guessing a Foreign Court Is an Affront to International Comity ................................................................. 1756 D. Assessing Whether a Foreign Court Had Jurisdiction Under Foreign Law Is an Exercise in Futility ........................... 1759 E. U.S. Courts Do Not Engage in an Adequate Analysis of Foreign Law .............................................................................. 1761 III. WHAT IS THE LAW OF F2? ................................................................. 1763 IV. ADDITIONAL JURISDICTIONAL COMPLEXITY ..................................... 1768 A. Submission ................................................................................. 1768 B. Notice ......................................................................................... 1774 V. AMENDING THE UNIFORM ACT ......................................................... 1784 CONCLUSION ................................................................................................. 1787 It is black-letter law that in order to recognize and enforce a foreign judgment, the rendering court must have had personal jurisdiction over the defendant. While the principle is clear, it is an open question as to whose law governs the question of personal jurisdiction: that of the rendering court or that of the recognizing court. In other words, is the foreign court’s jurisdiction over the defendant governed by foreign law (the law of F1), domestic law (the law of F2), or some combination thereof? While courts have taken a number of different approaches, it seems that many courts regard foreign law as relevant to the question of whether the foreign court possessed personal jurisdiction over the defendant. ∗ Professor of Law, Roger Williams University School of Law. The author would like to thank Christopher Moran and Edward Pare for their very helpful research assistance in the preparation of this Article. 1729 1730 BOSTON UNIVERSITY LAW REVIEW [Vol. 96:1729 In this Article, I argue that U.S. courts should not be looking to foreign law (in whole or in part) to determine whether a foreign court had jurisdiction over the defendant in the original action. I present five arguments in support of this contention: (1) there is no statutory authority pointing to the application of foreign law; (2) U.S. courts are not well-positioned to apply foreign jurisdictional law; (3) re-examining assertions of jurisdiction under foreign law violates international comity; (4) an examination of foreign law is usually unnecessary because jurisdiction is also assessed according to U.S. standards; and (5) U.S. courts do not do a good job applying foreign jurisdictional law. Instead, I argue that courts should apply American law to assess whether a foreign court was jurisdictionally competent. This, in turn, raises the question: What is “American” law? I maintain that courts should apply broad federal standards of jurisdiction, and not state-based ones, to determine whether the rendering court had personal jurisdiction over the defendant. This Article also looks closely at two particular areas of jurisdiction law that are particularly complicated as they relate to the choice of law issue: submission and notice. With respect to submission, U.S. courts seem to be unclear as to whose law applies in assessing whether a defendant in a foreign action submitted to the jurisdiction of the foreign court. In particular, many U.S. courts defer to the foreign court’s interpretations as to whether the acts of the defendant constituted submission. With respect to notice, there is a lack of clarity as to how notice relates to personal jurisdiction in the context of the recognition and enforcement of foreign judgments. Here too, there is confusion as to whose law of notice applies in assessing whether a defendant received adequate notice of the proceeding. Consistent with the argument above, this Article takes the position that U.S. standards, and not foreign ones, should ultimately guide the submission and notice inquiries in the recognition context. Finally, because much of the law in this area is codified in either the 1962 Uniform Foreign Money-Judgments Recognition Act or the 2005 Uniform Foreign-Country Money Judgments Recognition Act, I propose concrete changes to the language of the uniform acts that would address the choice of law problem in the recognition of foreign judgments and would clarify the intersection between notice and personal jurisdiction in the uniform acts. INTRODUCTION U.S. courts are being asked to recognize and enforce foreign judgments1 with increasing frequency.2 Scholars predict that this trend is likely to continue into the future as litigation goes global. For instance, Christopher Whytock and 1 In this Article, I use “foreign” to denote foreign country judgments. The term “foreign” is also sometimes used to refer to judgments from sister-states. 2 E.g., Samuel P. Baumgartner, Understanding the Obstacles to the Recognition and Enforcement of U.S. Judgments Abroad, 45 N.Y.U. J. INT’L L. & POL. 965, 965 (2013) (“Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments.”). 2016] WHOSE LAW OF PERSONAL JURISDICTION? 1731 Marcus Quintanilla observe that an increase in the multipolarity3 of international litigation means that there will be a “potential proliferation of foreign judgments brought to the United States for recognition or enforcement.”4 They argue: In 2021, more foreign country judgments than ever will be brought to the United States for recognition or enforcement. This second dimension of multipolarity follows from the first: if there is more litigation in foreign courts, there will be more foreign court judgments—and whenever those judgments involve U.S.-based defendants or other defendants with significant assets in the United States, plaintiffs are likely to seek enforcement here.5 Similarly, Stacie Strong notes that “[e]xperts forecast a significant increase in the number of foreign judgments.”6 She expresses concern that the current U.S. approach to the recognition and enforcement of foreign judgments “involves a great deal of cost, complexity, and uncertainty, which creates numerous problems for both U.S. and foreign parties.”7 The most heavily litigated issue in the recognition and enforcement of foreign judgments is that of personal jurisdiction.8 Prior to recognizing a 3 Marcus S. Quintanilla & Christopher A. Whytock, The New Multipolarity in Transnational Litigation: Foreign Courts, Foreign Judgments, and Foreign Law, 18 SW. J. INT’L L. 31, 32 (2011) (“Our overarching conjecture is that this unipolar (or bipolar) era—if it ever existed at all—has passed, and that transnational litigation is entering an era of ever increasing multipolarity.”). 4 Id. 5 Id. at 35. 6 S.I. Strong, Recognition and Enforcement of Foreign Judgments in U.S. Courts: Problems and Possibilities, 33 REV. LITIG. 45, 50 (2014); see also Quintanilla & Whytock, supra note 3, at 37 (projecting an increase in opinions involving foreign judgments from 2010 to 2019); Katy Dowell, International Litigants in London Rise by a Third in Three Years, THE LAWYER (May 7, 2013), http://www.thelawyer.com/news-and-analysis/practice- areas/litigation/international-litigants-in-london-rise-by-a-third-in-three-years/ 3004520.article [https://perma.cc/J48S-SVRJ] (noting rise of U.S. litigants in English courts). 7 Strong, supra note 6, at 50. 8 J. Chad Mitchell, A Personal Jurisdiction Dilemma: Collateral Attacks on Foreign Judgments in U.S. Recognition Proceedings, 4 B.Y.U. INT’L L. & MGMT. REV. 123, 127 (2008) (“Thus, it is no surprise that the foreign-court-lacked-jurisdiction-over-the-defendant defense is the most common defense to recognition of foreign judgments in the United States.”); see also 1 LINDA SILBERMAN, TRANSNATIONAL JOINT VENTURES § 5:3(A) (Thomson Reuters 2015) (“Lack of judicial jurisdiction of the rendering court is the most common defense to recognition or enforcement of foreign judgments.”); Ronald Brand, Recognition and Enforcement of Foreign Judgments, FED. JUD. CTR. INT’L LITIG. GUIDE, Apr. 2012, at 1, 17 (“Lack of jurisdiction over the defendant or the property involved in the judgment is the most common ground for refusal to recognize or enforce a foreign judgment.”). 1732 BOSTON UNIVERSITY LAW REVIEW [Vol. 96:1729 foreign judgment, a U.S. court must be satisfied that the foreign court had personal jurisdiction over the defendant.9 It is unclear, however, whether personal jurisdiction must be assessed from the perspective of the U.S. court or the foreign court. That is, should a U.S. court apply U.S. law or foreign law to the question of personal jurisdiction?10 Essentially, this is a choice
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