Recognition and Enforcement of Foreign Judgments in American Courts and the Limits of the Law Market Model

Abstract

The law market model posits that the most appropriate resolution of choiceof-
law disputes in private international law is to permit individuals to choose
ex ante the law that applies to them. This is contrasted to the public law
model where courts choose law based on the perceived interests of, or the
parties’ connections with, the states or nations involved. The law market
model envisions that consumer choice will lead to optimal competition among
jurisdictions to supply the most efficient law. This model has influenced the
rise of party autonomy, most notably in the widespread enforcement of many
contractual choice-of-law and forum-selection clauses. One area that the
model has had little influence on is the enforcement of foreign judgments.
In the United States, judgments from other countries face higher hurdles in
obtaining recognition and enforcement, as compared to judgments issued
by courts of sister states. There has been little discussion in the law market
literature of the possibility of ex ante contractually waiving these hurdles, or
of choosing the law of states that make it easier to enforce foreign judgments.
This reticence appears to be based in part on the assumption that state law on
such recognition is mandatory and non-waivable, and that such law reflects
the sovereign interests of states. Revisiting this regime through the lens of
the law market model suggests that courts and public policymakers should
permit parties, within broad limits, to contractually waive or select the law
on judgment recognition, as they are permitted to do with other areas of law.