Enforcement of Foreign Judgments, Systemic Calibration, and the Global Law Market

Abstract

There are important reasons for states to recognize and enforce the judgments of
other states’ courts. There are also reasons that may militate against recognition
or enforcement of certain foreign judgments, making it appropriate to calibrate
or “fine tune” the presumption favoring recognition and enforcement so it
is not applied too broadly. Most calibration principles, such as the principle
that a judgment from a court lacking jurisdiction should not be recognized,
are case-specific. However, one calibration principle that is, to our knowledge,
unique to the law of the United States stands out: the principle of systemic
calibration, according to which U.S. courts must not recognize or enforce
foreign judgments “rendered under a system which does not provide impartial
tribunals or procedures compatible with the requirements of due process of
law.” In this Article, we aim to shed empirical light on how U.S.-style systemic
calibration operates in practice. We find that state-of-origin indicator scores
related to systemic adequacy are on average higher when U.S. courts recognize
or enforce foreign judgments than when they refuse to do so. Moreover, the
probability of recognition and enforcement increases as these indicator scores
increase. However, in only six of the 587 opinions in our dataset did a court
refuse recognition or enforcement based explicitly on the systemic inadequacy
ground. Thus, while the level of systemic calibration in U.S. courts is high, it
is mostly achieved implicitly. Finally, even judgments from states with low
systemic adequacy scores are sometimes recognized or enforced by U.S. courts.