Facilitating Money Judgment Enforcement Between Canada and the United States

Texas A&M University School of Law Texas A&M University School of Law

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Facilitating Money Judgment Enforcement Between Canada and Facilitating Money Judgment Enforcement Between Canada and

the United States the United States

Paul George

Texas A&M University School of Law

, pgeorge@law.tamu.edu

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Facilitating Money Judgment Enforcement Between Canada and the United States

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[99]

Facilitating Money Judgment Enforcement

Between Canada and the United States

JAMES P. GEORGE

†

The United States has attempted for years to create a more efficient enforcement regime for

foreign-country judgments, both by treaty and statute. Long negotiations succeeded in July 2019,

when the Hague Conference on Private International Law (with U.S. participants, including the

Uniform Law Commission) promulgated the new Hague Judgments Convention which

harmonizes judgment recognition standards but leaves the domestication process to the enforcing

jurisdiction. In August 2019, the Uniform Law Commission took a significant step to fill that gap,

though limited to Canadian judgments. The Uniform Registration of Canadian Money Judgments

Act provides a registration process similar to that for sister-state judgments in the United States.

The new Act aligns with Canada’s Uniform Enforcement of Foreign Judgments Act, retaining

due process safeguards while facilitating acceptance of appropriate judgments. In most cases,

this will avoid the need for further litigation and lead to more efficient enforcement in adopting

jurisdictions. This Article outlines the new Act and then tackles difficult questions that remain

subject to local law.

†

Professor of Law, Texas A&M University School of Law. The Author thanks Committee Chair Lisa

Jacobs and National Conference Reporter Kathy Patchell, and each member of the drafting committee for their

excellent dialogue and result with the Act. The Author also thanks Kaitlin Wolff and other staff members at the

Uniform Law Commission, Texas A&M Reference Librarian Cynthia Burress, and administrative assistant

Andrea Hudson, all of whom contributed significantly to the Act and this Article. The conclusions, opinions,

and any errors are mine and not those of the Uniform Law Commission, the drafting committee, or the people

thanked here.

100 HASTINGS LAW JOURNAL [Vol. 72:99

TABLE OF CONTENTS

INTRODUCTION ............................................................................................... 103

I. FOREIGN-COUNTRY JUDGMENTS IN THE UNITED STATES AND CANADA.... 104

A. THE UNITED STATES ...................................................................... 104

1. The Common Law ................................................................... 104

2. The Uniform Acts .................................................................... 106

3. Proposals for a National Standard—Treaty or Unilateral

Statute .................................................................................... 108

B. CANADIAN APPROACHES TO FOREIGN-COUNTRY JUDGMENTS ..... 109

1. Common Law .......................................................................... 109

2. The Reciprocal Enforcement of Judgments Act (REJA-C) ..... 110

3. The Uniform Enforcement of Foreign Judgments Act

(UEFJA-C) ............................................................................ 112

C. THE CANADIAN-U.S. PROJECT TO EXPEDITE CIVIL MONEY

JUDGMENT ENFORCEMENT .......................................................... 113

II. THE UNIFORM REGISTRATION OF CANADIAN JUDGMENTS ACT................ 114

A. THREE ACTS COMPARED ............................................................... 114

B. A DRY RUN THROUGH REGISTERING AND OBJECTING .................. 119

1. Filing ...................................................................................... 120

a. Compliance ....................................................................... 120

b. Who May File ................................................................... 120

c. No Chain Recognition ....................................................... 120

d. What to Seek ..................................................................... 121

e. Limitations ........................................................................ 121

f. Alternate Procedures ......................................................... 121

2. Notice ...................................................................................... 121

a. Manner of Service............................................................. 122

b. Content ............................................................................. 122

3. The Thirty-Day Grace Period and Provisional Remedies ..... 122

4. The Judgment Debtor’s Defenses ........................................... 123

a. The Petition to Vacate Registration .................................. 123

b. Defenses to Registration ................................................... 123

c. Do Not Lie ........................................................................ 124

d. Stays.................................................................................. 124

e. Offsets or Counterclaims .................................................. 125

f. Relitigating the Merits ....................................................... 125

g. Reciprocity ........................................................................ 126

5. Costs and Attorney Fees ......................................................... 126

6. Appeals ................................................................................... 127

7. Enforcing the Domesticated Judgment ................................... 127

8. Relation to the 2005 Act ......................................................... 127

C. DEFERRAL TO THE ENFORCING STATE’S LAW ............................... 128

November 2020] MONEY JUDGMENT ENFORCEMENT 101

III. THE LARGER JUDGMENT ENFORCEMENT SETTING UNDER THE

2005 ACT ............................................................................................. 129

A. SCOPE OR APPLICABILITY .............................................................. 130

B. JURISDICTION AND VENUE ............................................................. 131

1. The Rendering Forum ............................................................. 131

a. Personal Jurisdiction—Amenability and Notice............... 131

(1) Amenability ............................................................ 132

(2) Notice of the Rendering Forum’s Action ............... 136

(3) Default Judgment in the Rendering

Jurisdiction ............................................................. 137

b. Subject Matter Jurisdiction .............................................. 137

c. Venue ................................................................................ 138

2. The Enforcing Forum ............................................................. 138

a. Personal Jurisdiction........................................................ 138

(1) Amenability ............................................................ 138

(2) Notice in the Enforcing Forum .............................. 141

(3) Defaulting in the Enforcing Forum........................ 142

b. Subject Matter Jurisdiction in the Enforcing Forum ........ 142

c. Venue in the Enforcing Forum.......................................... 142

C. NON-JURISDICTIONAL CHALLENGES TO THE FOREIGN-COUNTRY

JUDGMENT ................................................................................... 143

1. Mandatory Grounds for Dismissal ......................................... 143

2. Discretionary Grounds for Dismissal ..................................... 144

D. GOVERNING LAW BEYOND PERSONAL JURISDICTION ................... 145

1. In the Rendering Court ........................................................... 146

2. In the Enforcing Court ............................................................. 146

a. Forum Clauses.................................................................. 146

b. Classifying the Foreign Judgment as Within the

2005 Act’s Scope ............................................................ 148

c. Finality in the Rendering Jurisdiction .............................. 150

d. Authentication or Certification of the

Foreign Judgment ........................................................... 150

e. What Assets Are Subject to Execution .............................. 150

f. Privity with the Judgment Debtor—Who Is Subject

to Execution?.................................................................. 152

g. Interest .............................................................................. 152

h. Evaluating Due Process, Fundamental Fairness, and

Impartiality..................................................................... 153

i. Superseding Law in the Enforcing Court: Federal and

International................................................................... 154

E. PARALLEL AND COLLATERAL LITIGATION ..................................... 156

CONCLUSION AND SPECULATIONS .................................................................. 158

102 HASTINGS LAW JOURNAL [Vol. 72:99

IV. APPENDICES .............................................................................................. 161

A. THE UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS

RECOGNITION ACT (2005) ........................................................... 161

B. THE UNIFORM REGISTRATION OF CANADIAN MONEY

JUDGMENTS ACT (2019) .............................................................. 164

November 2020] MONEY JUDGMENT ENFORCEMENT 103

INTRODUCTION

In July 2019, the Uniform Law Commission approved an act that will

streamline the process to enforce a Canadian money judgment in the United

States. The Uniform Registration of Canadian Money Judgments Act (“2019

Registration Act”) supplements the Uniform Foreign-Country Money Judgment

Recognition Act (“2005 Act”) currently adopted in twenty-six states and

territories.

Under the 2005 Act, a party must file a lawsuit in order to seek

recognition for a foreign judgment, and if granted, it may enforce the foreign

judgment in the same manner as a judgment rendered locally. The 2019

Registration Act creates a registration procedure for use with Canadian money

judgments which does not require the party seeking recognition to file a lawsuit.

This Article explains the 2019 Registration Act and its relation both to its parent

Act and to the Canadian counterpart, the Canadian Uniform Enforcement of

Foreign Judgments Act.

This Article deals intricately with those three statutes and incidentally with

several others, all of which are popularly referred to with acronyms such as

UFCMJRA. Because of the acronyms’ similarity and the likelihood of

confusion, I will use shortened forms. There are three United States-based acts,

all aimed at state adoption:

• “the 1962 Act” is the Uniform Foreign Money-Judgments Recognition Act

• “the 2005 Act” is the Uniform Foreign-Country Money Judgments

Recognition Act

• “the 2019 Registration Act” is the Uniform Registration of Canadian

Money Judgments Act

There are two Canadian acts, adopted in various Canadian provinces and

territories:

• “the REJA-C” is the Reciprocal Enforcement of Judgments Act

• “the UEFJA-C” is the Uniform Enforcement of Foreign Judgments Act

Part I discusses the history of these acts.

In addition, readers must distinguish between a judgment’s recognition (the

enforcing state’s acceptance of a foreign judgment for preclusion or enforcement

purposes) and the judgment’s enforcement (execution against local assets). In

turn, recognition breaks down into recognition standards (such as the judgment

debtor’s amenability to the rendering state’s jurisdiction) and the initial

application process in the enforcing state (litigation versus registration). Part II

discusses the application process—registration—offered by the 2019

Registration Act.

Part III discusses the myriad of conflicting issues encountered following

judgment registration under the 2019 Registration Act or filing under the 2005

Act. Although judgment execution per se is beyond these Acts’ scope, it is

. For a list of enacting jurisdictions, see 2005 Foreign-Country Money Judgments Recognition Act, UNIF.

L. COMM’N, https://www.uniformlaws.org/committees/community-home?CommunityKey=ae280c30-094a-

4d8f-b722-8dcd614a8f3e (last visited Nov. 23, 2020).

104 HASTINGS LAW JOURNAL [Vol. 72:99

important that attorneys and courts understand both the distinction and interplay

of the judgment recognition and the ensuing enforcement process. Part IV

summarizes the 2019 Registration Act’s contribution and speculates as to the

viability of registration in other judgment enforcement regimes.

I. FOREIGN-COUNTRY JUDGMENTS IN THE UNITED STATES AND CANADA

A. THE UNITED STATES

1. The Common Law

As Joseph Story noted in the early nineteenth century, foreign judgment

recognition has been the subject of “no inconsiderable fluctuation” in the

common law.

In chronicling this fluctuation, Story first noted a frequent

distinction in England between judgments offered for enforcement and those

offered in defense. Judgments filed for enforcement were treated as prima facie

evidence of the claim subject to attack for various errors—that is, the claim was

often relitigated. But judgments offered in defense were analyzed under

preclusion principles.

Using that practice as a starting point, Story offered

several pages of variations ranging from moderations to sharp deviations from

the English view.

The United States at that point had insufficient legal history

to draw conclusions. Story reported only the generality that foreign judgments

were prima facie evidence but impeachable, and that “how far and to what extent

this doctrine is to be carried, does not seem to be definitely settled.”

The United States Supreme Court took a large step in 1895 to straighten

the fluctuation in its review of a French judgment. In Hilton v. Guyot,

the Court

explained at length that foreign-country judgments are entitled to recognition

under twin standards of comity and reciprocity. As to comity, the Court stated

we are satisfied that, where there has been opportunity for a full and fair trial

abroad before a court of competent jurisdiction, conducting the trial upon

regular proceedings, after due citation or voluntary appearance of the

defendant, and under a system of jurisprudence likely to secure an impartial

administration of justice between the citizens of its own country and those of

other countries, and there is nothing to show either prejudice in the court, or

in the system of laws under which it was sitting, or fraud in procuring the

judgment, or any other special reason why the comity of this nation should not

allow it full effect, the merits of the case should not, in an action brought in

. JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS, FOREIGN AND DOMESTIC, IN REGARD TO

CONTRACTS, RIGHTS, AND REMEDIES, AND ESPECIALLY IN REGARD TO MARRIAGES, DIVORCES, WILLS,

SUCCESSIONS, AND JUDGMENTS § 603 (Lawbook Exch. 2d ed. 2001) (1841).

. See id. § 598.

. See id. §§ 598–610; see also Hilton v. Guyot, 159 U.S. 113, 180–95 (1895).

. STORY, supra note 2, § 608; see also Smith v. Lewis, 3 Johns 157, 169 (N.Y. 1808) and other cases

and treatises discussed in PETER HAY, PATRICK J. BORCHERS, SYMEON C. SYMEONIDES, & CHRISTOPHER A.

WHYTOCK, CONFLICT OF LAWS 1421–22 (West Acad. Publ’g 6th ed. 2018).

. Hilton, 159 U.S. at 113.

November 2020] MONEY JUDGMENT ENFORCEMENT 105

this country upon the judgment, be tried afresh, as on a new trial or an appeal,

upon the mere assertion of the party that the judgment was erroneous in law

or in fact.

The Court—and on this second point a bare majority—held further that

comity required reciprocity, and because France did not give conclusive effect

to United States judgments, the Court would not recognize the French

judgment.

A strong four-justice dissent favored the French judgment, arguing

that preclusion was the common law mandate here rather than the more

politically oriented comity, and that reciprocity had no role in the analysis.

The

Hilton majority thus held that the question of foreign-country judgment

recognition was one of public law, conceivably addressable by a national or

international standard. The Hilton dissent argued for preclusion, a question of

the common law and thus private law. That question—public law or private

law—continues to be debated in regard to foreign country judgment recognition.

The next instance of that ongoing debate came from the New York Court

of Appeals in 1926. In Johnston v. Compagnie Generale Transatlantique, the

New York Court of Appeals rejected Hilton’s comity and reciprocity standard,

and instead followed the Hilton dissent by applying New York’s common law

of preclusion to the French judgment’s recognition.

Johnston’s holding made

two important points. First, the recognition of the French judgment was a

question of private law based on preclusion, and not public law based on comity.

Second, because it was a question of private law, it was a state law question

governed by New York law.

The state law view was bolstered in 1938 when the Supreme Court decided

Erie Railroad Co. v. Tompkins, holding that diversity cases were governed by

the law of the state in which the federal court sat.

Although Erie applied only

to federal courts (and not, for example, to state court actions on foreign-country

judgments), the doctrine came to stand for something much broader than the

governing law in diversity cases. For example, in Somportex Ltd. v. Philadelphia

Chewing Gum Corp.,

the Third Circuit Court of Appeals cited Erie in holding

that Pennsylvania law governed the recognition of an English default

judgment.

Interestingly, Pennsylvania’s applicable law was comity, based on

Hilton, but rejected Hilton’s reciprocity.

In any event, Erie clarified the

primacy of state common law even outside of federal litigation, including its

application to what the Hilton majority assumed was a question of public law

and national scope. To the extent the Hilton majority purported to announce a

federal standard for recognizing foreign-country judgments, the combination of

. Id. at 202–03.

. Id. at 210.

. Id. at 233–34.

. Johnston v. Compagnie Generale Transatlantique, 242 N.Y. 381, 386–88 (1926).

. Erie R. Co. v. Tompkins, 304 U.S. 64, 80 (1938).

. Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435 (3d Cir. 1971), cert. denied, 405

U.S. 1017 (1972).

. Id. at 440.

. Id. at 440 & n.8.

106 HASTINGS LAW JOURNAL [Vol. 72:99

Johnston and Erie has ended that. Nonetheless, state courts are free to adhere to

Hilton’s comity and reciprocity standard, and some do.

On the other hand, state

law’s current dominance of foreign-country judgment recognition does not mean

that federal law cannot control the question, but only that in the absence of

federal law—federal statute or treaty—state law controls.

2. The Uniform Acts

In 1948, the Uniform Law Commission approved the Uniform

Enforcement of Foreign Judgments Act (US-UEFJA) to provide clearer

enforcement of sister-state judgments. Although the US-UEFJA was merely a

codification of the common law standard under full faith and credit, it expedited

sister-state judgment enforcement by requiring only a registration rather than a

new lawsuit. The sister-state Act had sufficient success

to encourage the

Uniform Law Commission to consider a similar act for foreign-country

judgments.

That happened in 1962 with the promulgation of the Uniform Foreign

Money Judgment Act (“1962 Act”). As the California Supreme Court noted,

“[t]he purpose of the uniform act was to codify the most prevalent common law

rules for recognizing foreign money judgments and thereby encourage the

reciprocal recognition of United States judgments in other countries.”

There

were, of course, a number of differences from the sister-state Act. Notably, first,

the sister-state Act applies to any judgment entitled to full faith and credit

but

the 1962 Act applies only to money judgments other than those for taxes, fines,

other penalties, or family law judgments.

Second, the 1962 Act does not allow

for mere registration of the foreign-country judgment but instead requires

“recognition” accomplished through a new lawsuit,

although the 1962 Act

itself did not make that clear.

Third, the 1962 Act allows for both preclusion

. See HAY ET AL., supra note 5, at 1424–25 & n.305.

. As of 2019, the Uniform Enforcement of Foreign Judgments Act (U.S.) has been enacted in forty-eight

states (all but California and Vermont) plus the District of Columbia and the U.S. Virgin Islands. 1964

Enforcement of Foreign Judgments Act, UNIF. L. COMM’N, https://www.uniformlaws.org/committees/

community-home?CommunityKey=e70884d0-db03-414d-b19a-f617bf3e25a3 (last visited Nov. 23, 2020).

. Manco Contracting Co. (W.L.L.) v. Bezdikian, 195 P.3d 604, 608 (Cal. 2008) (citing 13 pt. II West’s

U. Laws Ann. (2002) Unif. Foreign Money-Judgments Recognition Act, Prefatory Note, p. 40).

. See UNIF. ENF’T OF FOREIGN JUDGMENTS ACT § 1 (UNIF. L. COMM’N 1964).

. See UNIF. FOREIGN MONEY-JUDGMENTS RECOGNITION ACT § 1(2) (UNIF. L. COMM’N 1962).

. For sister-state judgments, full faith and credit requires recognition when a qualified judgment is

registered. Because foreign-country judgments do not qualify for full faith and credit, a summary proceeding is

necessary.

. The drafters apparently believed that the need to file a new action in the enforcing state was obvious

since it was required under the common law. That oversight was one of the reasons for the revisions that came

in 2005 with the Uniform Foreign Country Money Judgment Recognition Act. See UNIF. FOREIGN-COUNTRY

MONEY JUDGMENTS RECOGNITION ACT § 6 cmt. 1 (UNIF. L. CMM’N 2005). In the meantime, states had varying

reactions to the 1962 Act’s failure to specify a filing requirement. Florida saw it as acceptable to use a registration

procedure that the drafters did not intend. See FLA. STAT. ANN. § 55.604 (2019). No other state drafted a

registration procedure as such, but some courts interpreted it that way. See, e.g., Vrozos v. Sarantopoulos, 552

N.E.2d 1093, 1099–1101 (Ill. App. Ct. 1990); Maxwell Shuman & Co. v. Edwards, 663 S.E.2d 329, 331–32

(N.C. Ct. App. 2008). A Texas court, on the other hand, held the 1962 Act unconstitutional for its failure to

November 2020] MONEY JUDGMENT ENFORCEMENT 107

and enforcement.

Finally, the 1962 Act provides additional defenses and

protections for the judgment debtor.

The 1962 Act was eventually adopted by

thirty-five states and three territories,

but several have replaced it with the 2005

Act. As of 2019, ten states and one territory use the 1962 Act—Alaska,

Connecticut, Florida, Maine, Maryland, Massachusetts, Missouri, New York,

Ohio, Pennsylvania, and the Virgin Islands.

The 1962 Act’s failure to provide an express procedure, along with other

perceived shortcomings, led to an updated Act in 2005. The changes from the

1962 Act are explained in the 2005 Act’s prefatory note and include clarifying

(in some cases enlarging) the definitions,

scope,

burdens of proof,

need to

file a legal action in the enforcing state,

defenses,

and the addition of a statute

of limitations.

The 2005 Act has been adopted in twenty-six U.S. jurisdictions:

Alabama, California, Colorado, Delaware, District of Columbia, Georgia,

Hawaii, Idaho, Illinois, Indiana, Iowa, Michigan, Minnesota, Montana, Nevada,

New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon,

Tennessee, Texas, Utah, Virginia, and Washington.

require notice to the judgment debtor. See Detamore v. Sullivan, 731 S.W.2d 122, 124 (Tex. Ct. App. 1987)

(denying writ of mandamus). As a result, the Texas legislature amended its version of the 1962 Act to specify a

notice requirement. See Don Docksteader Motors, Ltd. v. Patal Enterprises, Ltd., 794 S.W.2d 760, 761 (Tex.

1990).

. Whether the foreign-country judgment is presented for collection or preclusion, it first requires

recognition as a qualified judgment. For sister-state judgments, recognition is automatic so there is no need for

a summary proceeding when submitting it for preclusion, which will necessarily be in an existing action.

Enforcing the sister-state judgment, which usually means collecting a money judgment, requires registration

under the US-UEFJA in order to give notice to the judgment debtor and to open a domestic cause number. See

generally UNIF. FOREIGN MONEY JUDGMENTS RECOGNITION ACT.

. In addition to the jurisdictional defenses under the sister-state act, the 1962 Act includes defenses such

as unfair legal system and public policy violations that are unavailable under the sister state act. See id. § 4.

. HAY ET AL., supra note 5, at 1425.

. See UNIF. FOREIGN MONEY JUDGMENTS RECOGNITION ACT, U.L.A. Refs & Annos (2020). The

Uniform Laws Annotated reference table lists Delaware and Illinois, but those states also appear on the 2005

Act reference table and both show current versions of the 2005 Act.

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 2 (refining the definitions to

read “foreign country” and “foreign-country judgment”).

. See id. § 3 (clarifying certain exclusions such as domestic relations judgments).

. The judgment creditor or other party seeking recognition bears the initial burden to establish that the

judgment falls within the Act’s scope. See id. § 3(c). Once that burden is met, the judgment is presumed

enforceable and the judgment debtor (or other party opposing recognition) bears the burden of establishing a

basis for nonrecognition. See id. § 4(d).

. See id. § 6.

. See id. §§ 4(c)(7)–(8) (adding discretionary nonrecognition grounds based on the rendering court’s

integrity and due process violations in foreign proceedings). The best explanation of defense distinctions

between the 1962 Act and the 2005 Act comes from the Fifth Circuit Court of Appeals in DeJoria v. Maghreb

Petroleum Exploration, S.A., 804 F.3d 373, 386 (5th Cir. 2015) [hereinafter DeJoria I], rev’d, 935 F.3d 381 (5th

Cir. 2019) [hereinafter DeJoria II]. In DeJoria II, the judgment debtor successfully opposed a Moroccan

judgment by lobbying the Texas legislature to adopt the 2005 Act which added crucial defenses. DeJoria, 935

F.3d at 387–88.

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 9.

. See 2005 Foreign-Country Money Judgments Recognition Act, supra note 1.

108 HASTINGS LAW JOURNAL [Vol. 72:99

3. Proposals for a National Standard—Treaty or Unilateral Statute

As noted above, state law governance of foreign-country judgment

recognition is not a foregone conclusion. National standards have been

continuously proposed at least back to Hilton. The most notable effort, which

may now succeed in the United States, is through the Hague Conference on

Private International Law, which in 1993 began drafting a Convention on

Jurisdiction and the Recognition of Judgments. The process continued through

2001, but negotiations reached impasses on jurisdictional bases such as “tag

jurisdiction” and “general jurisdiction” (doing business in the forum unrelated

to the claim). When it became clear that no agreement was in sight, the

negotiators took a fallback position and crafted an agreement on forum clauses

that became the Hague Convention on Choice of Court Agreements.

During the Hague negotiations, the American Law Institute (ALI)

undertook the drafting of a federal statute designed to implement the anticipated

Hague Judgments Convention. The ALI work began in 1998,

and when the

Hague efforts failed, the ALI switched the plan to creating a federal statute that

would create a federal standard for recognizing foreign-country judgments.

Controversies during that process included some ALI members’ resistance to a

federal standard, and other members’ preference for a reciprocity requirement.

That work was completed in 2005 with a proposed federal statute that included

reciprocity,

but it did not reach Congress.

Treaty proponents did not give up, and in 2019 the Hague Conference

finalized the Convention on the Recognition and Enforcement of Foreign

Judgments in Civil and Commercial Matters.

The Convention states the

standards for recognition including jurisdiction, defenses, and authentication,

but leaves the filing or registration procedure, along with enforcement, up to the

enforcing state’s law.

Additionally, the Convention expressly retains the

enforcing states’ existing recognition and enforcement methods.

The

Convention opened for signing on July 2, 2019, but as of this writing only

Uruguay has signed.

Ratification in the United States is of course speculative,

. See Convention on Choice of Court Agreements, 44 I.L.M. 1294 (2005), https://assets.hcch.net/

docs/510bc238-7318-47ed-9ed5-e0972510d98b.pdf. The United States has signed but not ratified the

convention. See Status Table, HAGUE CONF. ON PRIVATE INT’L L., https://www.hcch.net/en/instruments/

conventions/status-table/?cid=98 (last visited Nov. 23, 2020).

. See Memorandum from Professor Andreas F. Lowenfeld & Professor Linda Silberman to the Council

of the Am. L. Inst. (Nov. 30, 1998), https://www.ali.org/media/filer_public/ed/f9/edf92d0f-e280-4480-b8de-

5aade127c56c/foreign-judgments-memorandum.pdf.

. See Lance Liebman, Foreword to AMERICAN LAW INSTITUTE, RECOGNITION AND ENFORCEMENT OF

FOREIGN JUDGMENTS: ANALYSIS AND PROPOSED FEDERAL STATUTE, at xii–xiii (2005).

. See id. at xi–xii.

. See Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial

Matters, July 2, 2019, https://assets.hcch.net/docs/806e290e-bbd8-413d-b15e-8e3e1bf1496d.pdf.

. See id. at art. 5 (jurisdictional bases), art. 6 (in rem exclusion), art. 7 (defenses), art. 12 (authentication).

. See id. at art. 13.

. See id. at art. 15.

. See Status Table, HAGUE CONF. ON PRIV. INT’L L., https://www.hcch.net/en/instruments/conventions/

status-table/?cid=137 (last visited Nov. 23, 2020).

November 2020] MONEY JUDGMENT ENFORCEMENT 109

and if ratified, it is not clear what reservations might be imposed. Assuming it is

ratified in the United States and the implementing statute does not impose

additional requirements on enforcing states (that would create a federal

enforcement law), then the Convention appears to be compatible with both

current recognition and enforcement methods, including common law, the 1962

Act, the 2005 Act, and (if enacted by states) the 2019 Canadian Judgment

Registration Act.

B. CANADIAN APPROACHES TO FOREIGN-COUNTRY JUDGMENTS

This review of Canadian law is brief because this Article is about judgment

enforcement in the United States. The discussion here involves Canadian

jurisdictions only to the extent of harmonizing United States practice, at least in

the twenty-six states using the 2005 Act, and hopefully in newly-adopting states.

Interestingly, Canadian law on foreign-country judgment enforcement is more

complex than in the United States because Canada has not only the same internal

border issues, but has also managed to tie into specific treaties with the United

Kingdom

and France,

and has other federal legislation geared to judgment-

enforcement treaties.

A full summation of the larger Canadian law on foreign-

judgment enforcement would take several pages and is unnecessary in this

Article about a new act for adoption in the United States. The discussion below

is limited to Canada’s uniform provincial laws directed to foreign-country

judgment enforcement.

1. Common Law

Canada’s foreign-judgment enforcement system evolved from common

law enforcement which prevailed until statutory procedures emerged in the

twentieth century. As with the doctrinal struggle in the United States, Canadian

law on foreign-judgment enforcement vacillated between a preclusion-based

system and a sovereignty-based comity approach that included reciprocity. The

leading Canadian treatise on the subject explains the theoretical contrast between

the common law and typical civil law systems: common law enforcement tends

to be on a case-by-case basis, while many non-common law countries either do

. See Convention Between the Government of Canada and the Government of the United Kingdom of

Great Britain and Northern Ireland Providing for the Reciprocal Recognition and Enforcement of Judgments in

Civil and Commercial Matters, Can.-U.K., Apr. 24, 1984, 1987 Can. T.S. No. 29 (enacted as the Canada-United

Kingdom Civil and Commercial Judgments Convention Act, R.S.C., 1985, c. C-30); see also JEAN-GABRIEL

CASTEL & JANET WALKER, CANADIAN CONFLICT OF LAWS § 14.27 (LexisNexis Can. Inc. 6th ed. 2005).

. See Convention Between the Government of Canada and the Government of the French Republic on

the Recognition and Enforcement of Judgments in Civil and Commercial Matters and on Mutual Legal

Assistance in Maintenance, Can.-Fr., June 10, 1996, https://www.ulcc.ca/en/annual-meetings/377-1997-

whitehorse-yk/civil-section-documents/1132-convention-between-government-of-canada-and-government-of-

french-republic-1997?showall=1&limitstart=. For an example of adoption in a Canadian province, see The

Enforcement of Judgments Convention and Consequential Amendments Act, C.C.S.M. c E117 (Can. Man.). See

also CASTEL & WALKER, supra note 42, § 14.28.

. See CASTEL & WALKER, supra note 42, § 14.29 (discussing Canadian federal statutes directed to

foreign and international judgments regarding antitrust, foreign trade, oil pollution, and terrorism victims).

110 HASTINGS LAW JOURNAL [Vol. 72:99

not recognize foreign judgments at all (requiring re-litigation) or recognize

judgments from specific reciprocating countries, subject to a few objections.

This resembles the contrasting views in the United States as shown in the Hilton

majority and dissent, and the Hilton dissent’s echo in Johnston.

Like jurisdictions in the United States, the results in Canada have been a

hybrid. The two Canadian statutory-enforcement systems—the REJA-C and the

UEFJA-C—are based on the common law but differ in their procedures, and

common law enforcement remains available as an alternative to registration or

recognition under one of the standardized Canadian acts.

2. The Reciprocal Enforcement of Judgments Act (REJA-C)

Statutory procedures began to replace common law enforcement in the

early twentieth century. The REJA-C, though originally derived from a 1924

model law, is now a collection of statutes with varying content

used in most

Canadian provinces and territories—all but Quebec and Saskatchewan.

The

adopted versions are not uniform in sections, wording, or scope.

According to

Professor Janet Walker, the REJA-C was originally intended as a catch-all act

to provide a registration procedure for civil money judgments from reciprocating

jurisdictions—both Canadian and foreign.

This is consistent, for example, with

Alberta’s REJA-C.

The adopted versions in various provinces and territories have naturally

mutated over the many years, and now New Brunswick applies its REJA-C only

to foreign-country judgments,

using other statutes to enforce other Canadian

judgments. Ontario applies its REJA-C only to Canadian provinces and

territories,

presumably leaving judgment creditors from foreign countries to

use common law enforcement. There are, however, three common features

among all REJA-C versions: a convenient registration procedure, the option to

use common law recognition/enforcement, and a stiff reciprocity requirement.

. See id. § 14.1.

. See Hilton v. Guyot, 159 U.S. 113, 180–95 (1895); Johnson v. Compagnie Generale Transatlantique,

242 N.Y. 381, 385 (1926).

. See generally CASTEL & WALKER, supra note 42, ch.14.

. See id. § 14.24 & n.1.

. Ten Canadian jurisdictions have enacted a version of the REJA-C, labeled as such: Reciprocal

Enforcement of Judgments Act, R.S.A. 2000, c R-6 (Can. Alta.); Reciprocal Enforcement of Judgments Act,

R.S.M. 1987, c J20 (Can. Man.); Reciprocal Enforcement of Judgments Act, R.S.N.B. 2014, c 127 (Can. N.B.);

An Act to Facilitate the Reciprocal Enforcement of Judgments, R.S.N. 1990, c R-4 (Can. Nfld.); Reciprocal

Enforcement of Judgments Act, R.S.N.W.T. 1988, c R-1 (Can. N.W.T., Nun.); An Act Respecting the Reciprocal

Enforcement of Judgments, R.S.N.S. 1989, c 388 (Can. N.S.); Reciprocal Enforcement of Judgements Act,

R.S.O. 1990, c R.5 (Can. Ont.); Reciprocal Enforcement of Judgments Act, R.S.P.E.I. 1988, c R-6 (Can. P.E.I.);

Reciprocal Enforcement of Judgments Act, R.S.Y. 2002, c 189 (Can. Yukon).

. As with uniform acts in the United States, various differences exist between the Canadian jurisdictions’

REJA-C adoptions. See CASTEL & WALKER, supra note 42, § 14.24.

. See id.

. See Reciprocal Enforcement of Judgments Act, R.S.A. 2000, c R-6, § 1 (Can. Alta.); Reciprocating

Jurisdictions Regulation, Alta. Reg. 344/1985, § 1 (Can. Alta.).

. See Reciprocal Enforcement of Judgments Act, R.S.N.B. 2014, c 127, §§ 1, 3 (Can. N.B.).

. See id. § 1; see also Reciprocal Enforcement of Judgments Act, Ont. Reg. 322/92, § 1 (Can. Ont.).

November 2020] MONEY JUDGMENT ENFORCEMENT 111

The REJA-C is an improvement over the common law with its option for

registering the foreign judgment instead of having to file a new action and

endure a summary proceeding.

The disadvantage is the element of reciprocity,

and not just the requirement, but the overlay of an administrative process. Under

the REJA-C, reciprocity is not a question to be determined ad hoc by the

enforcing court, but instead requires an administrative process in which the

province’s Lieutenant Governor declares the rendering jurisdiction to be a

reciprocating jurisdiction.

Once a U.S. state is designated on a province’s

reciprocating list, future judgment creditors can benefit, but the list of approved

U.S. states is small. Alberta, for example, has recognized only Arizona, Idaho,

Montana, and Washington as eligible reciprocating states.

The process of

having the rendering state placed on the reciprocating list is sufficiently difficult

that many judgment creditors choose the common law recognition, although

there is no available data to assess how many there are in each province. There

is evidence, though, of frustration with the process. Some judgment creditors

have tried to circumvent the reciprocity requirement by first filing in a

reciprocating province and then seeking intra-Canadian enforcement. The

REJA-C anticipates this and prohibits the practice. That is, the original rendering

court must be from a jurisdiction officially recognized as reciprocating.

One common feature in the various REJA-Cs is the option of foregoing

registration (and cumbersome reciprocity) and filing a new action. As with the

1962 Act and the 2005 Act in the United States, the new action is directed to the

foreign-country judgment rather than the underlying claim and anticipates

summary resolution based on preclusion.

Two Canadian jurisdictions have not adopted the REJA-C. Quebec—a civil

code jurisdiction—has drafted code provisions

based on the 1971 Hague

Judgments Convention.

The Quebec code does not impose reciprocity but also

has no registration option.

Saskatchewan has adopted the latest version of

Canada’s Uniform Enforcement of Foreign Judgments Act, which offers a

registration procedure, lacks reciprocity, and is discussed immediately below.

. Professor Walker notes that the REJA-C registration process “is more efficient than the common law

method of enforcement but it can still be cumbersome and expensive.” CASTEL & WALKER, supra note 42,

§ 14.24, at 14-103.

. See, e.g., Reciprocal Enforcement of Judgments Act, R.S.A. 2000, c R-6, § 8 (Can. Alta.); see also

CASTEL & WALKER, supra note 42, § 14.24 & nn.4–5. In contrast, states in the United States using reciprocity

treat it as a judicial question and some states make it discretionary. See, e.g., TEX. CIV. PRAC. & REM. CODE

ANN. § 36A.004(c)(9) (2019).

. See Reciprocating Jurisdictions Regulation, Alta. Reg. 344/1985, § 1 (Can. Alta.).

. See CASTEL & WALKER, supra note 42, § 14.24 & n.5.

. See id. § 14.24 & n.3.

. See Civil Code of Québec, S.Q. 1991, c 64, arts. 3155–68 (Can.); Code of Civil Procedure, R.S.Q.

2014, c 1, arts. 507–08 (Can.).

. Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial

Matters, Feb. 1, 1971, 1144 U.N.T.S. 249, https://www.hcch.net/en/instruments/conventions/full-text/?cid=78;

CASTEL & WALKER, supra note 42, § 14.13 & n.3. The 1971 Hague Judgments Convention (ratified only by

Albania, Cypress, Kuwait, the Netherlands, and Portugal), not to be confused with the 2019 Hague Judgments

Convention, just opened for signature.

. See CASTEL & WALKER, supra note 42, § 14.3 & n.51.

112 HASTINGS LAW JOURNAL [Vol. 72:99

3. The Uniform Enforcement of Foreign Judgments Act (UEFJA-C)

The Uniform Law Conference of Canada has long encouraged a

reciprocity-free procedure for foreign-country judgments. The original model

came out in 1933 with the Model Foreign Judgments Act, which has been

revised many times since.

The earliest versions dropped the reciprocity

requirement with its cumbersome administrative layer

but until recently the

UEFJA-C did not have a registration option like the REJA-C. The Uniform Law

Conference of Canada (ULC-C) produced the most recent version in 2003 and

Saskatchewan enacted it in 2005.

New Brunswick has enacted, in addition to

its REJA-C, what appears to be a prior version of the UEFJA-C entitled the

Foreign Judgments Act. The New Brunswick version does not require

reciprocity but lacks a registration procedure and instead requires a new action

on the foreign judgment,

which makes it simply a codification of the common

law similar to the 2005 Act in the United States.

The UEFJA-C is a well-structured Act that offers cost-and-time reduction

while retaining due process concerns. While the REJA-C applies (with some

exceptions) to judgments rendered outside the enforcing forum, including other

Canadian jurisdictions,

the UEFJA-C is limited to judgments from “foreign

States,” not referring to other Canadian provinces or territories.

A line-item

comparison with the REJA-C is not practical because the REJA-C lacks a current

model-law format and its ten adoptions vary significantly. A few general

comparisons are possible, though. Compared to the general format for the

various REJA-Cs, the UEFJA-C has more definitions,

a more tightly defined

scope with additional exclusions,

a different limitations rule,

a clearer default

judgment rule,

discretion to enforce non-monetary judgments,

an option for

partial enforcement if parts of the foreign judgment exceed the Act’s scope,

more defenses for the judgment debtor,

a more nuanced burden of proof,

precise judgment interest rules,

and a clearer rule for monetary conversion.

Like the REJA-C, the UEFJA-C is structured around a registration process, and

. See id. § 14.23 & n.1.

. Compare id. § 14.23, with id. § 14.24.

. The Enforcement of Foreign Judgments Act, R.S.S. 2005, c E-9.121 (Sask. Can.).

. Although the New Brunswick Foreign Judgments Act does not expressly authorize an action on a

foreign judgment, its only function is to regulate such an action. See Foreign Judgments Act, R.S.N.B. 2011, c

162, §§ 5–6, 8 (N.B. Can.).

. See supra notes 51–52 and accompanying text.

. See Uniform Enforcement of Foreign Judgments Act § 2 (Unif. L. Conf. Can. 2003) (Can.) (defining

“foreign judgment”).

. See id. § 2 (providing eight definitions).

. See id. § 3.

. See id. § 5.

. See id. §§ 4(d), 9.

. See id. § 7.

. See id. §§ 6, 12.

. See id. §§ 4, 10.

. See id. § 10.

. See id. § 15.

. See id. § 13.

November 2020] MONEY JUDGMENT ENFORCEMENT 113

unlike the REJA-C, the UEFJA-C not only abandons the cumbersome

administrative process regarding the reciprocity list with the Lieutenant

Governor, but abandons the reciprocity element entirely. The UEFJA-C is one

of this Article’s three focus acts and its details are outlined in the chart below.

C. THE CANADIAN-U.S. PROJECT TO EXPEDITE CIVIL MONEY JUDGMENT

ENFORCEMENT

Vibrant economies benefit from predictable and consistent judgment

enforcement regimes. This was true when the drafters included the full faith and

credit clause in the United States Constitution, and it remains true in the twenty-

first century. On the other hand, judgment enforcement is also a local matter

because of its in rem nature—an action against necessarily local assets. Those

local interests explain why foreign-country judgment enforcement resists

standardization. In a federalist system like the United States or even in more

traditional polities, local customs and policies evolve both judicially and

legislatively to accommodate those competing national and local interests.

Finding the balance between them is essential.

The only universally agreed-upon point in transnational judgment

enforcement is that the rendering forum must have jurisdiction over the

defendant/judgment debtor.

For interstate judgment enforcement in the United

States, the full faith and credit clause resolved recognition disparities and

compelled common law enforcement through summary actions. Building on

that, the Uniform Law Commission’s UEFJA increased sister-state enforcement

efficiency by replacing the summary legal action with a registration system.

Judgments from foreign countries are a different matter because of inherent

distrust of foreign legal systems. But arguments against greater efficiencies—

such as registration—fade for judgments from countries with similar legal

traditions. Canada and the United States are ideal matches, and at its January

2017 meeting, the Uniform Law Commission approved a joint project with the

Uniform Law Conference of Canada to draft an act harmonizing the 2005 Act

and the UEJFA-C.

The stated goal was a registration procedure for United

States jurisdictions that would match that in Canada and create a more efficient

. See infra Part II.A.

. See ANDREAS F. LOWENFELD, INTERNATIONAL LITIGATION AND ARBITRATION 471 (3d ed. 2005)

(citing, inter alia, ENFORCEMENT OF FOREIGN JUDGMENTS WORLDWIDE (C. Platto & W.G. Horton eds., 2d ed.

1993)). Even with United States jurisdictions using the 2005 Act, the approach varies. Although the 2005 Act

calls for the filing of a new legal action in the enforcing state, some states routinely allow registration. See, e.g.,

CE Design Ltd. v. HealthCraft Prods., Inc., 79 N.E.3d 325, 329–30 (Ill. App. Ct. 2017). In other states requiring

a recognition action, courts sometimes allow registration anyway. See, e.g., Hyundai Sec. Co. v. Lee, 155 Cal.

Rptr. 3d 678, 682–84 (Ct. App. 2013). Nonetheless, judgment registration has not taken hold with foreign-

country judgments.

. See, for example, TEX. CIV. PRAC. & REM. CODE ANN. § 35.003 (2019), the Texas version of the 1964

Act. Cross border judgment recognition is controversial enough that even sister-state judgment enforcement was

not always efficient or consistent. See supra notes 4–5 and accompanying text.

. See Unif. L. Comm’n, Minutes: Midyear Meeting of the Executive Committee 7 (Jan. 14, 2017),

https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=2164ce2

7-3552-7548-25a2-457abf438c12.

114 HASTINGS LAW JOURNAL [Vol. 72:99

domestication of civil money judgments between the two countries.

The joint

drafting committee had its first meeting in October 2017, and two years later

presented its proposed final act at the 2019 Annual Meeting in Anchorage,

Alaska. On July 17, 2019, the Uniform Law Commission approved the Uniform

Registration of Canadian Money Judgments Act and forwarded it to the states

for enactment.

II. THE UNIFORM REGISTRATION OF CANADIAN JUDGMENTS ACT

The 2019 Registration Act’s purpose is to harmonize the 2005 Act with the

UEFJA-C for civil money judgment enforcement in the adopting jurisdictions in

Canada and the United States. Because the 2019 Registration Act is a drop-in

amendment to the 2005 Act, there is a fair bit of necessary parallel in the two

U.S. Acts. But to accomplish the harmonization between U.S. and Canadian law,

the 2019 Registration Act varies from the 2005 Act on key points. The chart

below lists the similarities and distinctions in the three acts. The summaries’

points here are paraphrased and the full text, without comments, is attached as

Appendix B. The 2019 Registration Act’s text with comments is available on

the Uniform Law Commission website.

A. THREE ACTS COMPARED

Following is a side-by-side comparison of the 2005 Act, the UEFJA-C, and

the 2019 Registration Act. The 2019 Registration Act is intended to harmonize

the 2005 Act and the UEFJA-C.

. See id.

. See Unif. L. Comm’n, Transcript of the Proceedings, 2019 Annual Meeting of the Uniform Law

Commission, Tenth Session, Wednesday, July 17, 2019, at 302–10 (Unif. Law Comm’n 2019) (on file with

author and Unif. L. Cmm’n).

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT (UNIF. L. CMM’N 2019).

November 2020] MONEY JUDGMENT ENFORCEMENT 115

Features

2005 Act

(U.S.)

UEFJA

(Canada)

2019 Reg Act

(U.S.)

Basic Provisions

Definitions

§ 2 Terms defined:

foreign country

foreign-country

judgment

§ 2 Terms defined:

civil proceeding

enforcing court

foreign civil

protection order

foreign judgment

judgment creditor

judgment debtor

registration

state of origin

§ 2 Terms defined:

Canada

Canadian judgment

Consistent with the

2005 Act’s limited

definitions

Scope/

Applicability

§ 3(a) limits scope to

foreign-country

judgments to the extent

they (1) grant or deny

recovery for a sum of

money, and (2) are final,

conclusive and

enforceable under the

law of the rendering

state. § 3(b) excludes:

tax judgments

fines or penalties

domestic relations

Applies to foreign

judgments as defined

in § 2. § 3 excludes:

tax judgments

bankruptcy/insolvency

maintenance/

support judgments

recognizing a

judgment from

another foreign

country fines or

penalties judgments

predating this Act

§ 3.1 covers foreign

civil protection orders.

§ 6.1(3)—money

damages includes an

award by rendering

court of costs/

expenses of litigation

§ 3(a) incorporates the

2005 Act’s scope

because the

Registration Act is a

drop-in for the 2005

Act. However, § 2(2)

tracks the UEJFA-C by

barring chain

registration/recognition

(for example, it limits

judgments to those

litigated in Canada).

Comment 1 to § 3

discusses the

Registration Act’s

position on bankruptcy

but is unchanged from

the 2005 Act.

Application

to default

judgments

Applies to default

judgments without

expressly so stating.

§ 4(c)(6) provides a

discretionary non-

recognition ground for

judgments based only on

personal jurisdiction

which includes, but is

not necessarily limited

to, defaults. The

judgment debtor may

object if notice in the

rendering state was not

made in sufficient time

to prepare a defense. See

§ 4 comment 7.

Yes. § 4(d) excludes

only default

judgments where

notice was not

received in sufficient

time to present a

defense. § 9 adds a

jurisdictional nexus

(real and substantial

connection)

requirement for

default judgments

(burden of proof on

judgment debtor

(§ 10)).

Applies to default

judgments without

expressly so stating,

consistent with the

2005 Act.

Non-

monetary

awards

No. Limited by its terms

to money judgments.

Yes. § 7 gives the

enforcing court

discretion to enforce a

non-monetary award

and modify it if

necessary.

No, consistent with the

2005 Act’s limit to

money judgments.

Partial

Yes. § 3 provides that

Yes. § 6(1) provides a

Yes. § 3(c) expressly

116 HASTINGS LAW JOURNAL [Vol. 72:99

enforcement

option

the Act applies to a

foreign-country

judgment to the extent

it’s within the Act’s

scope and does not

apply to the extent it

falls within an excluded

category. The enforcing

court is free to recognize

and enforce the out-of-

scope aspects under

common law or comity.

See § 3 comments 2 &

court can reduce

award for punitive

damages, etc., to the

extent they would be

available in enforcing

state. § 6(2) provides a

court may reduce

excessive actual

damages, limiting to

what the enforcing

court could award.

§ 12(2) provides a

judgment creditor may

foreign judgment.

§ 12(4)(c) provides a

creditor may seek

amendment to render

enforceable.

allows partial

registration.

Filing

Registration

option

No. Judgment creditors

must file a new lawsuit

or raised by

counterclaim,

crossclaim, etc. See § 6.

Yes. § 12.

Yes. § 4, and to some

extent, the entire Act is

about the use of

registration as a drop-

in alternative to the

2005 Act.

Recognition

option

Yes. § 7(1) provides for

recognition for

preclusion purposes and

§ 7(2) provides for

enforcement as a local

judgment.

Yes. § 11 provides for

recognition for

preclusion purposes

under the same terms

for enforcement.

No, but § 9 allows the

alternative of filing a

recognition action

under the 2005 Act.

Litigation

option

Yes, exclusive process,

and § 11 preserves the

common law action.

No express provision.

But contract with § 3.1

allowing judgment

creditor to proceed

under another Act

(UECJDA).

No, but § 9 allows

filing a recognition

action under the 2005

Act. As a result, the

Registration Act can

only be used for

enforcement and not

preclusion purposes.

Certification

requirement

No express provision.

Enforcing state’s

evidentiary laws on

authentication govern,

which may in turn look

to rendering state’s law.

Yes. § 12(4)(a)

requires a copy of the

foreign judgment

certified by proper

officer of the

rendering court.

Yes. § 4(b)(1) is based

on the UEFJA-C

§ 12(4)(a).

Translation

No express provision;

presumably governed by

enforcing state’s law.

Yes. § 12(4)(d).

Yes. § 4(b)(10).

Notice of

filing in

enforcing

state

No express provision.

But § 6 (which requires

the filing of a new

action) would require

notice under enforcing

state’s law.

§ 12(3) requires notice

to judgment debtor of

intent to register the

foreign judgment.

Yes. § 6 requires

notice of registration in

the same manner as

notice of a new claim.

Limitations

period

§ 9 provides the earlier

of (1) time allowed by

§ 5 provides the

earlier of (1) time

No change from the

2005 Act. See § 7.

November 2020] MONEY JUDGMENT ENFORCEMENT 117

rendering state, or (2) 15

years after date the

judgment became

effective in the

rendering state.

allowed by rendering

state, or (2) 10 years

after date the

judgment became

enforceable in the

rendering state.

Act defines

enforcing

court

No express provision;

presumably must be

filed in a court having

subject matter

jurisdiction. See § 6.

Yes. § 2 provides “the

superior court of

unlimited trial

jurisdiction in the

enacting province or

territory.”

No change from the

2005 Act. See § 4(a).

Defenses

Defenses to

registration/

recognition/

enforcement

§ 4 provides two-tiers of

defenses: mandatory and

discretionary. § 4(b) is

mandatory and bars

recognition for lack of:

impartial tribunal or

reasonable procedural

opportunities (must be

systemic), personal

jurisdiction, and subject

matter jurisdiction.

§ 4(c) provides

discretionary non-

recognition for: lack of

notice in time to prepare

a defense extrinsic fraud

public policy conflict

with a final and

conclusive judgment

conflict with a forum

clause derogating from

the rendering forum’s

jurisdiction inconvenient

forum (for judgments

based only on personal

jurisdiction) substantial

doubts about rendering

court’s integrity due

process. § 5 defines non-

exclusive bases for

personal jurisdiction:

personal service in the

rendering forum

(including transient

jurisdiction), voluntary

appearance, consent

prior to case

commencement,

human domicile, or

corporate presence

(incorporation/formation

or principal place of

business) in the

rendering state business

presence in the

rendering forum related

§ 4 provides a foreign

judgment cannot be

enforced if the:

rendering court lacked

personal or subject

matter jurisdiction as

defined in § 8 & § 9

judgment has been

satisfied judgment is

unenforceable in the

rendering state, or

appeal is pending, or

time for appeal

expired not properly

served under the

rendering state’s law,

or did not receive

notice in sufficient

time to present a

defense, and the

judgment was allowed

by default judgment

was obtained by fraud

lack of procedural

fairness and natural

justice in the rendering

state judgment is

manifestly contrary to

the enforcing state’s

public policy a parallel

case in the enforcing

state that began before

the case seeking

enforcement, or has

resulted in another

judgment or order in

the enforcing state, or

has been reduced to

judgment in foreign

state other than the

rendering state. § 10

states a foreign

judgment may not be

enforced if the

judgment debtor

shows a lack of real

No change from the

2005 Act. See § 7. The

2019 Act incorporates

by reference all

defensive grounds in

the 2005 Act. See

§ 7(b) and comment 2.

118 HASTINGS LAW JOURNAL [Vol. 72:99

to the judgment vehicle/

aircraft operation in the

rendering forum related

to the judgment. In

addition to defenses in

§ 4 & § 5, there are

other primary defenses

such as falling outside

the Act’s scope.

and substantial

connection with the

rendering state AND

that jurisdiction was

inappropriate there.

Burden

§ 3(c) places the burden

on the party seeking

recognition to file a new

lawsuit and obtain a

local judgment based on

preclusion. Once filed,

§ 4(d) places a burden of

raising and proving

defenses on the

judgment debtor.

§ 10 places the burden

on judgment debtor to

establish the defenses of

lack of real/ substantial

connection,

inappropriate

jurisdiction. Other

defense sections, § 4

(reasons for refusal), § 8

(personal jurisdiction),

§ 9 (real and substantial

connection) do not

specify.

§ 7. Once an

authenticated foreign

judgment is registered

under § 4 and notice

given under § 5, the

burden is on the

judgment debtor to

establish a defense

under § 7. Failing that,

the registration results

in a local judgment

capable of

enforcement.

Stay

Yes. § 8 places the

burden on the judgment

debtor to show the case

is on appeal or that one

will be taken; the court

may issue a stay until

the appeal concludes,

time for appeal expires,

or defendant has failed

to prosecute the appeal.

§ 4(c) provides a

defense to

enforcement if on

appeal, or time for

filing appeal has not

run.

Yes. § 8 provides that

after filing a § 7

petition to set aside the

registration, a party

may request a stay

which can be granted

upon a showing of

likelihood of success

on the merits. The

court may require

security.

Outcome

Effect of

filing

There is no registration

procedure. The judgment

creditor files a new

lawsuit, gives notice to

the judgment debtor, then

moves for summary

judgment unless the

judgment debtor pleads a

defense. If judgment

creditor prevails, the

foreign judgment is

domesticated and

enforceable locally.

The filing of a

properly attested

foreign judgment

leads to registration,

notice to the judgment

debtor, and

enforcement under the

enforcing

jurisdiction’s law

unless the judgment

debtor successfully

raises a defense.

Same as the UEFJA-C.

The filing of a properly

attested foreign

judgment leads to

registration, notice to

the judgment debtor,

and enforcement under

the enforcing forum’s

law unless the

judgment debtor

successfully raises a

defense.

Enforcement

§ 7(2) provides

enforcement as local

judgment after

recognition which

requires summary

judgment or trial.

§ 14 provides

registered judgment is

enforceable 30 days

after filing as if it were

local judgment so long

as no successful

defenses.

§ 7 provides the same

result as under the

UEFJA-C.

Costs

No express provision;

presumably governed by

enforcing state’s law.

Yes. Under § 12(5), a

judgment creditor

may, if the regulations

provide, recover the

Yes. § 4(b)(6)(B)

requires listing of

Canadian costs.

§ 4(b)(7) requires listing

November 2020] MONEY JUDGMENT ENFORCEMENT 119

costs and expenses

related to the

registration of the

foreign judgment.

of post-judgment costs

up to the date of

registration; no mention

of enforcing state costs,

presumably governed by

enforcing state’s law.

Interest

No express provision;

presumably governed by

enforcing state’s law.

Yes. § 15 is governed

by the rendering

state’s law up to date

of currency

conversion and

thereafter by the

enforcing state’s law.

Court has discretion to

change the rate or

calculation

methodology if the

judgment creditor

would be under- or

over-compensated.

§ 4(b)(6)(A) requires

listing in the

registration the rate

and accrual of interest

awarded by the

rendering court; does

not mention the cutoff

date when Canadian

law no longer governs,

or the effect of the

Canadian rate on the

resulting enforcing

state’s judgment.

Currency

conversion

No express provision;

presumably governed by

the enforcing state’s

law.

Yes. § 13 requires

judgment creditor’s

statement that the

judgment will be

converted to local

currency on the

conversion date; the

conversion date is the

last day, before the

day on which the

judgment debtor

makes a payment to

the judgment creditor

under the registered

foreign judgment, on

which the bank quotes

a Canadian dollar

equivalent to the other

currency.

No mention, same as

2005 Act. See § 4

Comment 11, which

notes the intent to track

the 2005 Act on this

point.

As the chart shows, the 2019 Registration Act follows its parent Act—the

2005 Act—on such fundamental points as definitions, scope, defenses, and

several of the issues left to the enforcing state’s law. On the other hand, the

Registration Act accomplishes its harmonization task with key sections on the

filing procedure (registration rather than a new legal action), notice, the

expedited effect, changes in the stay provision, the petition to set aside, and the

provisional remedies available upon registration.

B. A DRY RUN THROUGH REGISTERING AND OBJECTING

The chart above and this brief synopsis are paraphrases of the Act’s

elements. For a thorough understanding of the 2019 Registration Act, read its

text in Appendix B or better still, read the Act and comments at the Uniform

120 HASTINGS LAW JOURNAL [Vol. 72:99

Law Commission website.

The few case citations in this Subpart are of course

for enforcement under the 2005 Act or the 1962 Act, and not the 2019

Registration Act which is just now being sent to the states.

1. Filing

a. Compliance

Although some cases hold that substantial compliance with filing

requirements is enough,

certain elements are no doubt necessary for any court.

One is a copy of the foreign-country judgment authenticated by the rendering

court.

As to other requirements, the 2019 Registration Act includes a form as

an appendix to Section 4.

The form is not required when filing, but its use

makes acceptance more likely in states adopting the 2019 Act substantially

intact.

b. Who May File

The named judgment creditor of course may file. The 2019 Act also

contemplates that the judgment creditor’s assignees or successors may file.

What about the judgment creditor’s status in the enforcing state? In a New York

case under the 1962 Act, a judgment debtor objected that the judgment creditor

was neither present in nor registered to do business in the enforcing state. The

court held that the state’s corporate registration requirement did not apply to

parties using the court to enforce a foreign judgment.

c. No Chain Recognition

A judgment creditor may not use the 2019 Registration Act to register a

Canadian judgment that merely recognized or domesticated another judgment.

The Canadian judgment must be original, one that was litigated in the rendering

court. This is consistent with the UEFJA-C and the drafting committee thought

it essential for harmonization.

. See id.; see also id., Prefatory Note at 4–5.

. See Frymer v. Brettschneider, 696 So. 2d 1266, 1267–68 (Fla. Dist. Ct. App. 1997) (decided under

1962 Act).

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 4(b)(1); see also Ningbo FTZ

Sanbang Indus. Co. v. Frost Nat’l Bank, 338 F. App’x 415, 417 (5th Cir. 2009) (upholding district court’s

dismissal for failure to state a claim because the judgment creditor did not produce an authenticated copy of the

Chinese judgment) (decided under 1962 Act).

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 4(d).

. See id. § 4(b)(3).

. See Gemstar Can., Inc. v. George A. Fuller Co., 6 N.Y.S.3d 552, 554 (App. Div. 2015) (decided under

1962 Act).

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 2(2).

. See Uniform Enforcement of Foreign Judgments Act §3(d) (Unif. L. Conf. Can. 2003) (Can.).

November 2020] MONEY JUDGMENT ENFORCEMENT 121

d. What to Seek

Judgment creditors are limited to the monetary amount stated in the

rendering court’s final judgment, minus payments, plus allowable costs.

Currency conversion is not addressed in the 2019 Registration Act but is

mentioned in a comment, which notes that conversion will be handled under the

enforcing state’s law, as in the 2005 Act.

What if there is a delay because of

appeal in the rendering forum, and the converted amount changes because of

drastic currency fluctuations? There are no cases on point, but it is likely that

any change other than appropriate conversion would amount to re-litigation and

therefore be inappropriate.

e. Limitations

The 2019 Registration Act defers to the 2005 Act for filing limitations.

The 2005 Act requires that the judgment be filed within the earlier of the time

during which the foreign-country judgment is effective in the foreign country or

fifteen years from the date that the foreign-country judgment became effective

in the foreign country.

The limitations rule in the 2005 Act (and incorporated

into the 2019 Registration Act) applies to the filing period in the enforcing state.

Any issue of limitations in the rendering forum would have to be raised there

and cannot be relitigated in the enforcing forum.

f. Alternate Procedures

Section 9 of the 2019 Registration Act gives judgment creditors the option

of registering an appropriate Canadian judgment, or seeking recognition under

the 2005 Act by filing a legal action.

100

Either is available, but not both.

101

For

judgments (or portions of judgments) not within the 2019 Registration Act’s

scope, judgment creditors may seek recognition under another recognition

statute or the common law.

102

2. Notice

The 2019 Registration Act has a detailed notice provision. This differs from

the 2005 Act, which has no notice provision but instead requires the filing of a

new recognition action under the enforcing state’s law, which implicitly requires

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 4(b)(6)–(8).

. See id. § 4 cmt. 11.

. See Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 220 (D.C. Cir. 2018) (filing a petition to enforce

arbitration rather than an action under the 1962 or 2005 Acts; holding that the award had to be converted under

current exchange rates and any other approach was relitigation).

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 7(b)(1); id. cmt. 3.

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 9 (UNIF. L. CMM’N 2005).

. See Manco Contracting Co. (W.L.L.) v. Bezdikian, 195 P.3d 604, 612–16 (Cal. 2008) (explaining the

functions of the limitations period in the rendering forum and the enforcing forum).

100

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 9(b).

101

. See id. § 9(c).

102

. See id. § 9 cmt. 5.

122 HASTINGS LAW JOURNAL [Vol. 72:99

use of the enforcing state’s notice rules.

103

Because the 2019 Act speeds up

enforcement unless objections are raised, the notice requirements are crucial,

and the 2019 Act specifies both the manner of service and the notice’s content.

a. Manner of Service

The 2019 Act requires the registering party to “cause notice of registration

to be served on the person against whom the judgment has been registered.”

104

The notice must be served in the same manner as a summons and complaint is

served under the enforcing state’s version of the 2005 Act.

105

b. Content

The notice of registration must include (paraphrased here): (1) the

registration date and court identity; (2) the docket number; (3) the registering

person’s name and address (and attorney, if any); (4) a copy of the registration

including the documents required under Section 4(b); and (5) a statement

advising the person against whom the judgment was registered that they have

thirty days to petition the court with objections, and that the court may shorten

or lengthen the thirty-day period.

106

After service, the judgment debtor (or person against whom the judgment

is registered) has thirty days to file objections or seek a stay. Failing that, the

Canadian judgment becomes domesticated and immediately enforceable. This is

a crucial distinction from the 2005 Act where the judgment debtor has not only

answer time, but the additional time required for a summary proceeding.

Because of notice’s link to the thirty-day period and domestication, it is likely

that enforcing courts will strictly observe the details required in 2019 Act notice.

3. The Thirty-Day Grace Period and Provisional Remedies

Under Section 5 of the 2019 Registration Act, successful notice filed with

the clerk triggers a thirty-day grace period during which the judgment “may not

be enforced by sale or other property disposition of property, or by seizure of

property or garnishment.”

107

The thirty-day imposed period is another

distinction from the 2005 Act which has implicit non-enforcement periods

(answer time, summary judgment procedure, possibly discovery) during the

required summary proceeding. The thirty-day period may be shortened or

extended.

108

During the grace period, the judgment creditor may use provisional

103

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 6 (requiring the filing of a

new action); id. cmt. 4.

104

. UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 6(a).

105

. Id. § 6(b). If the enforcing state has amended its 2005 Act to add a notice section, that section controls.

If not, then the enforcing state’s basic notice law controls. See id.

106

. See id. § 6(c).

107

. See id. § 5(b).

108

. See id.

November 2020] MONEY JUDGMENT ENFORCEMENT 123

remedies, such as judgment liens or injunction (to the extent available under

local law), to prevent asset dissipation.

109

4. The Judgment Debtor’s Defenses

The 2019 Registration Act incorporates the defenses from the 2005 Act.

110

In 2005 Act lawsuits, the defenses are raised in an Answer or Motion to Dismiss.

If the judgment debtor fails to object, the judgment creditor must file a summary

judgment motion or seek another resolution to obtain judgment. This more

structured procedure changes with the 2019 Registration Act, where the

Canadian judgment is registered and becomes final and domesticated as a matter

of course in thirty days if the judgment debtor fails to raise objections as outlined

below. There is no need for summary resolution. The enforcing court’s only

function is to ensure that proper registration procedure is followed, to resolve

any interlocutory motions, and to adjudicate any defenses. If there are no

defenses, enforcement follows.

a. The Petition to Vacate Registration

The judgment debtor may invoke defenses by filing a Petition to Vacate

Registration within thirty days of receiving notice.

111

For enforcement under the

2005 Act, these defenses would have been raised in an Answer or Motion to

Vacate, or dismissal for failure to state a claim in federal court.

112

The defenses

are limited to the grounds stated in the 2005 Act, or noncompliance with the

filing requirements in the 2019 Registration Act.

113

b. Defenses to Registration

The 2005 Act provides three mandatory and eight discretionary dismissal

grounds, recited here because they apply to the 2019 Registration Act. The

mandatory and discretionary dismissal grounds are discussed further below as

indicated in the footnotes. The mandatory rejection grounds are that the

rendering forum (1) was part of a judicial system “that does not provide impartial

tribunals or procedures compatible with the requirements of due process of

law;”

114

(2) lacked personal jurisdiction;

115

or (3) lacked subject matter

109

. See id. § 5(b); id. cmt. 3.

110

. See id. § 7(b)(1).

111

. See id. § 7(a). The term “petition” is bracketed and may be replaced in adopting states by “motion” or

other appropriate term. See id.

112

. Federal courts can get picky about the defense procedure used under the 2005 Act. See DeJoria v.

Maghreb Petroleum Expl., S.A., 935 F.3d 381, 389–90 (5th Cir. 2019) (admonishing the judgment debtor for

using a “motion for nonrecognition” instead of summary judgment or a bench trial). But see LMS Commodities

DMCC v. Libyan Foreign Bank, No. 1:18-CV-679-RP, 2019 WL 1925499, at *3 (W.D. Tex. Apr. 30, 2019)

(dismissing the filing of a non-final judgment and using Federal Rule 12(b)(6) (failure to state a claim)).

113

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT §§ 7(b)(1)–(2).

114

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT § 4(b)(1) (UNIF. L. CMM’N 2005), discussed infra

Part III.C.1.

115

. Id. § 4(b)(2), discussed infra Part III.B.1(a).

124 HASTINGS LAW JOURNAL [Vol. 72:99

jurisdiction.

116

The eight discretionary grounds are: (1) lack of notice in time to

prepare a defense in the rendering court;

117

(2) extrinsic fraud;

118

(3) the

judgment or claim is repugnant to the enforcing courts or U.S. public policy;

119

(4) conflict with another final and conclusive judgment;

120

(5) violation of a

mandatory forum clause;

121

(6) inconvenient forum (limited to cases with

jurisdiction based only on personal service);

122

(7) the rendering court’s lack of

integrity with respect to the judgment;

123

or (8) due process violations.

124

The

2005 Act also provides other defenses such as being outside the scope

125

exceeding the limitations period.

126

Under the 2019 Registration Act, yet another

defense is noncompliance with registration requirements.

127

c. Do Not Lie

In raising these defenses, do not assume that the rendering court’s

remoteness enables you to misrepresent what happened. In Moersch v.

Zahedi,

128

the judgment debtor filed an affidavit attesting that he was not served

and did not participate in the Luxembourg trial. The enforcing court found

contrary evidence in the Luxembourg court record. The ease of access to

Canadian court records will make honesty all the more essential under the 2019

Registration Act.

d. Stays

For judgment debtors with grounds to object, the thirty-day grace period

may not be long enough to resolve those objections. Even so, a stay beyond the

thirty-day period is not automatic—the judgment debtor or resisting party must

request it, and must do so within the thirty-day grace period following notice.

129

In addition, the stay-seeking party must (1) have filed a Petition to Vacate

Registration and (2) show a likelihood of success on the merits of the objections

116

. Id. § 4(b)(3), discussed infra Part III.B.1(b).

117

. Id. § 4(c)(1), discussed infra Part III.C.2.

118

. Id. § 4(c)(2), discussed infra Part III.C.2.

119

. Id. § 4(c)(3), discussed infra Part III.C.2.

120

. Id. § 4(c)(4), discussed infra Part III.C.2.

121

. Id. § 4(c)(5), discussed infra Part III.C.2.

122

. Id. § 4(c)(6), discussed infra Part III.C.2.

123

. Id. § 4(c)(7), discussed infra Part III.C.2.

124

. See id. § 4(c)(8), discussed infra Part III.C.2.

125

. See, e.g., LMS Commodities DMCC v. Libyan Foreign Bank, No. 1:18-CV-679-RP, 2019 WL

1925499, at *3 (W.D. Tex. Apr. 30, 2019). The judgment creditor sought to enforce Tunisian judgment that was

in fact an asset freeze order and not a final judgment. Id.

126

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT § 9.

127

. Under the 2005 Act, the filing requirements are those governing the filing of a new action under the

enforcing state’s law. See id. § 6. This changes under the 2019 Registration Act where the filing requirements

are the registration provisions in sections 4 and 6. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS

ACT §§ 4, 6 (UNIF. L. CMM’N 2019).

128

. Moersch v. Zahedi, 228 F. Supp. 3d 1079, 1084–85 (C.D. Cal. 2017).

129

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 8.

November 2020] MONEY JUDGMENT ENFORCEMENT 125

(not the merits originally litigated). The court may require security for the

stay.

130

e. Offsets or Counterclaims

The 2019 Registration Act covers only Canadian judgment registration and

does not address offsets or counterclaims. For recognition actions under the 2005

Act, a judgment debtor could assert an opposing claim or offset because the

recognition action is a lawsuit, albeit one seeking summary adjudication. For

that sort of action under the 2005 Act, the opposing claim would have to be

permissive because compulsory (that is, related) claims would be merged with

the final judgment being recognized.

131

Even though the permissive claim might

be allowable in a 2005 Act action, it should not be allowed in a 2019 Registration

Act procedure because there is no lawsuit.

f. Relitigating the Merits

It is a widely accepted rule for judgment preclusion and enforcement that

a party cannot relitigate the merits of a properly rendered claim. The

Restatement (Second) of Judgments makes the basic point in regard to

preclusion generally: “No principle of law is more firmly settled than that the

judgment of a court of competent jurisdiction, so long as it stands in full force

and is unreversed, cannot be impeached in any collateral proceeding on account

of mere errors or irregularities, not going to the jurisdiction.”

132

The Restatement

(Second) of Judgments cites several cases in support, quoting the oldest: “Where

a court has jurisdiction, it has a right to decide every question which occurs in

the cause; and whether its decision be correct or otherwise, its judgment, until

reversed, is regarded as binding in every other court.”

133

The Restatement

(Second) Conflict of Laws makes the same point in regard to a judgment’s

extraterritorial effect.

134

As a California court recently noted, the judgment

debtor should have raised the issue of damage caps during the Canadian

litigation and may not litigate that issue in the enforcing state, which can look

only to enforcing the rendering jurisdiction’s final judgment.

135

130

. See id. § 5(b).

131

. See Bank of Montreal v. Kough, 612 F.2d 467, 473 (9th Cir. 1980) (holding that compulsory

counterclaims may not be raised in enforcing forum because that amounts to relitigation) (decided under 1962

Act).

132

. RESTATEMENT (SECOND) OF JUDGMENTS § 17, at 151 (AM. L. INST. 1982) (Reporter’s Note on

comment d) (quoting 1 HENRY CAMPBELL BLACK, A TREATISE ON THE LAW OF JUDGMENTS § 271 (2d ed.

1902)).

133

. Id. (quoting Elliott v. Peirsol, 26 U.S. (1 Pet.) 328, 340 (1828)).

134

. See RESTATEMENT (SECOND) CONFLICT OF LAWS § 106 (AM. L. INST. 1971) (explaining that judgment

will be enforced in spite of error of fact or law) (citing MacDonald v. Grand Trunk Ry. Co., 52 A. 982 (N.H.

1902) (holding that Canadian judgment for defendant had preclusive effect in plaintiff’s subsequent lawsuit in

the United States)); see also id. § 98 cmt. b (detailing how the rationale is the need for an end to litigation).

135

. See Silver Star Alpine Meadows Dev. Ltd. v. Quinlan, No. A145358, 2016 WL 6649201, at *4 (Cal.

Ct. App. Nov. 10, 2016); see also Batbrothers LLC v. Paushok, 101 N.Y.S.3d 297, 298 (App. Div. 2019)

(decided under 1962 Act); UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT § 6 cmt. 3 (UNIF. L. CMM’N

2005); UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 7 cmt. 5 (UNIF. L. CMM’N 2019).

126 HASTINGS LAW JOURNAL [Vol. 72:99

g. Reciprocity

Reciprocity is the concept that the enforcing state will refuse recognition

of a judgment from a foreign country that does not in turn recognize the

enforcing state’s judgments. It was the basis for the holding in Hilton,

136

is used

in Canada’s REJA,

137

is an element of the American Law Institute proposal,

138

and has been incorporated into some states’ adoptions of the 1962 Act or the

2005 Act.

139

It is not, however, in the Uniform version of the 1962 Act or the

2005 Act, is not in Canada’s UEFJA-C, and is not in the new 2019 Registration

Act. The drafters of both the 1962 Act and the 2005 Act believed that judgment

enforcement was best served by (1) clarifying the recognition standards and (2)

omitting reciprocity.

140

With the 2019 Registration Act, the goal of judgment

facilitation is even further served in aligning with Canada’s UEFJA-C.

Currently, only Saskatchewan has enacted the newest UEFJA-C, and one of the

purposes of the 2019 Registration Act was to assure Canadian jurisdictions of a

more open approach to properly presented judgments. To the extent that states

adopting the 2005 Act have added a reciprocity requirement, it will appear in the

list of defenses as it does with the Texas adoption, and will carry over to

registrations under the 2019 Registration Act. Although that inclusion does not

entirely thwart the 2019 Registration Act’s purpose, it is inconsistent. It will be

best if adopting states reconsider reciprocity in assessing the 2019 Registration

Act.

5. Costs and Attorney Fees

Unlike the 2005 Act, which defers to the enforcing state’s law, the 2019

Registration Act addresses costs and attorney fees in both the rendering forum

and the enforcing forum. When registering the Canadian judgment, the judgment

creditor lists the costs awarded by the rendering court,

141

the attorney fees,

142

and the post-judgment costs and fees incurred during enforcement up to the point

of registration.

143

If only part of the Canadian judgment is being registered, the

judgment creditor must allocate the costs and fees attributable to the registered

portion.

144

136

. See supra notes 6–8 and accompanying text.

137

. See supra notes 55–58 and accompanying text.

138

. See supra notes 34–36 and accompanying text.

139

. See, e.g., Banque Libanaise Pour Le Commerce v. Khreich, 915 F.2d 1000, 1004–06 (5th Cir. 1990)

(citing former TEX. CIV. PRAC. & REM. CODE ANN. §36.005(b)(7) (2017)) (decided under 1962 Act). In 2017,

Texas adopted the 2005 Act and again included a reciprocity provision. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 36A.004(c)(9) (2019).

140

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT, Prefatory Note at 1 (UNIF. L. CMM’N 2005).

141

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 4(b)(6)(B) (UNIF. L. CMM’N 2019).

142

. See id. § 4(b)(6)(C).

143

. See id. § 4(b)(7).

144

. See id. § 4(b)(6), (9).

November 2020] MONEY JUDGMENT ENFORCEMENT 127

6. Appeals

For 2005 Act enforcements, any issue going to the merits of the underlying

claim must be appealed in the rendering jurisdiction.

145

Consistently, under the

2019 Registration Act, issues on the merits must be appealed in the rendering

Canadian jurisdiction.

146

Appeals in the enforcing jurisdiction are limited for

2005 Act cases to issues regarding the recognition process, including filing,

stays and defenses. Consistently again, appeals under the 2019 Registration Act

are limited to the registration process. Neither the 2005 Act nor the 2019

Registration Act address appeals in the enforcing forum, deferring to the

enforcing state’s law.

As to appeal timing, the 2005 Act appeals are presumably triggered by

entry of final judgment recognizing the foreign-country judgment, or a denial.

Under the 2019 Registration Act, appeals are triggered by the entering of the

domesticated foreign-country judgment, or the vacating of registration.

Presumably for both 2005 and 2019 procedures, the enforcing state’s appeal

timing would run such that the appealing party has, for example, thirty days to

perfect an appeal under the enforcing state’s law.

7. Enforcing the Domesticated Judgment

After the registered Canadian judgment is domesticated in the enforcing

state, it is ready for enforcement under the enforcing state’s laws. It is now a

local judgment subject to all local procedures, including challenges to or appeals

from collection issues.

147

8. Relation to the 2005 Act

Section 9 of the 2019 Registration Act explains that it is a supplement to

the 2005 Act, all of which applies to registrations except for the 2005 Act’s

Section 6, which is the requirement of filing a lawsuit in the enforcing state to

obtain recognition.

148

Of course, the 2005 Act remains available for Canadian

judgments, so the Canadian judgment creditor has a choice between registering

under the 2019 Registration Act or filing a recognition lawsuit under the 2005

Act’s Section 6.

149

Either is available, but not both.

150

If the Canadian judgment creditor chooses registration but the court vacates

the registration for noncompliance with registration procedures, then the

judgment creditor again has a choice—file a new registration if the defect is

145

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT § 4 cmt. 12 (noting the need to exhaust

remedies in the rendering forum).

146

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT §§ 7–8.

147

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 5 cmt. 1; see also UNIF. FOREIGN-

COUNTRY MONEY JUDGMENTS ACT §§ 6 cmt. 4, 7(2) cmt. 3.

148

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 9(a).

149

. See id. § 9(b).

150

. See id. § 9(c).

128 HASTINGS LAW JOURNAL [Vol. 72:99

curable,

151

or file a recognition action under the 2005 Act’s Section 6.

152

If the

enforcing state’s court vacates registration or rules against the judgment creditor

on any grounds other than non-compliance, that result is likely preclusive of

further enforcement attempts, at least in that state and possibly other states.

153

C. DEFERRAL TO THE ENFORCING STATE’S LAW

Readers should not infer from the enforcement synopsis above that the

steps provided in the 2019 Registration Act, or the 2005 Act for that matter,

control the overall enforcement process. Both Acts facilitate the process to an

extent (with the 2019 Registration Act limited to Canadian money judgments),

but the enforcing state’s law still determines much of the outcome. Control by

the enforcing state is not limited to its local law—choice of law rules play a

significant role, but the enforcing state controls that analysis.

The role of the enforcing state’s law is best understood by categorizing the

process. The 2019 Registration Act is limited to the registration process that

supplants the lawsuit filing required under the 2005 Act. Beyond registration (or

filing under the 2005 Act), two essential functions remain: (1) the recognition

standards that will govern if the judgment debtor challenges registration with a

Petition to Vacate, and (2) execution on the judgment if there is no challenge, or

if the challenge fails. These functions are included in the dry run synopsis

immediately above but need further explanation.

Recognition standards focus, of course, on the rendering state and include

issues such as jurisdiction and due process. As explained above in the historical

background, the standards are drawn from common law enforcement and were

codified first in the 1962 Act, and again in the 2005 Act, to which the 2019

Registration Act defers.

154

Under both the 2005 Act and the 2019 Registration

Act, the standards are presumed met unless the judgment debtor objects and

proves noncompliance on at least one standard.

155

The 2005 Act addresses the

recognition standards in some detail but also defers to the enforcing state’s law

on several fundamental issues. One example of detail versus deferral is the

judgment debtor’s amenability to the rendering state. The 2005 Act lists six

examples creating presence-related amenability,

156

but then defers to the

enforcing state’s law for other bases of nonresident amenability.

157

Due process

is an even broader example of deferral, invoked under two standards but leaving

151

. See id. § 9(d)(1).

152

. See id. § 9(d)(2).

153

. Under the 1962 Act, a Texas appellate court rejected what it termed “back door” enforcement though

prior recognition in Louisiana. See Reading & Bates Const. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702,

715 (Tex. Ct. App. 1998) (upholding the Canadian judgment under a 2005 Act filing but rejecting the attempt

to enforce the Louisiana recognition under full faith and credit).

154

. See Manco Contracting Co. (W.L.L.) v. Bezdikian, 195 P.3d 604, 608 (2008) (citing 13 pt. II West’s

U. Laws Ann. (2002) Unif. Foreign Money-Judgments Recognition Act, Prefatory Note, p. 40).

155

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 7, discussed supra Part II.B.4.

156

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT § 5(a) (UNIF. L. CMM’N 2005); see also infra

note 174 and accompanying text.

157

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT § 5(b).

November 2020] MONEY JUDGMENT ENFORCEMENT 129

its parameters to the enforcing state’s law.

158

As further explained in Part III, the

2005 Act merely sets broad standards on many issues that require definition and

substance from the enforcing state’s law, all applying to cases registered under

the 2019 Registration Act.

Once recognition is accomplished, the now-domesticated judgment is

enforceable. Even so, questions remain. It may seem a truism to point out that

foreign judgments, after domestication, are governed by the enforcing state’s

law. After all, it is no longer foreign but now a local judgment, so local law of

course controls its execution. That simplification misses the complexity of legal

issues and leads to the mistaken assumption that enforcement is routine with no

fundamental differences between enforcing states. To the contrary, the

enforcement phase reveals significant distinctions between states on

fundamental issues such as asset susceptibility, privity, and a host of other

issues. The degree and persistence of these distinctions between states’

procedures shows the intensity of local control exercised over asset execution.

Even if the distinctions are happenstance rather than intentional policy

differences, it is important for parties—both creditors and debtors—to

understand that enforcement measures are distinct from recognition (whether it

is registration or litigation),

159

and that distinctions exist between states, both

foreign and domestic. Although the 2019 Registration Act is limited to the

registration process, this discussion would be incomplete if it left off at

registration and ignored the myriad of differing perspectives that follow. They

are discussed below in Part III.

III. THE LARGER JUDGMENT ENFORCEMENT SETTING UNDER THE 2005

ACT

As noted immediately above, the two foreign judgment Acts in the United

States—1962 and 2005—leave much to the enforcing state’s law regarding

recognition and everything regarding enforcement. This section addresses some

of the issues, particularly governing law, that may arise when enforcing a

judgment under the 2005 Act or the 2019 Registration Act. It also distinguishes

a few points that differ when using the 2019 Registration Act instead of the 2005

Act for a Canadian judgment. Because the 2005 Act is still being considered for

adoption and has only been used in some states for a few years, most of the cases

cited in this Article were rendered in a state using the 1962 Act, and some were

rendered in a state such as Kansas or Mississippi that uses the common law

enforcement method. Where this Article cites 1962 Act cases, they are identified

with the parenthetical “(decided under 1962 Act)” but they should be valid for

the 2005 Act. On the other hand, whether the enforcing Act was 1962 or 2005,

the law in one state is not necessarily the law in another as illustrated several

times in the discussion. That is, all points made here depend on variations under

158

. See id. § 4(a)(1), (b)(8).

159

. To the extent it is not obvious, see Ronald A. Brand, The Continuing Evolution of U.S. Judgments

Recognition Law, 55 COLUM. J. TRANSNAT’L L. 277, 336–41 (2017).

130 HASTINGS LAW JOURNAL [Vol. 72:99

local law, but this review may give guidance. This summary does not include all

the nuances but does cover the basic issues in a 2005 Act enforcement.

A. SCOPE OF APPLICABILITY

As discussed in Part II, the 1962 and 2005 Acts apply to foreign-country

judgments that: (1) award or deny a sum of money; (2) are not directed to taxes,

fines, penalties or family law; and (3) are final, conclusive and enforceable in

the rendering country.

160

Although litigation can arise on any aspect of the

scope,

161

subject matter disputes require more clarification. That is, the subject

matter exclusions do not disqualify every such judgment. In family law, for

example, some judgments award money damages that arose in a support claim

but were not directed to support and therefore qualify for recognition.

162

Similar

160

. The 2005 Act states:

SECTION 3 APPLICABILITY.

(a) Except as otherwise provided in subsection (b), this [act] applies to a foreign-country

judgment to the extent that the judgment: (1) grants or denies recovery of a sum of money;

and (2) under the law of the foreign country where rendered is final, conclusive, and

enforceable.

(b) This [act] does not apply to a foreign-country judgment, even if the judgment grants or

denies recovery of a sum of money, to the extent that the judgment is: (1) a judgment for taxes,

(2) a fine or other penalty; or (3) a judgment for divorce, support, or maintenance, or other

judgment rendered in connection with domestic relations.

that this [act] applies to the foreign-country judgment.

UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT § 3; see also UNIF. FOREIGN MONEY-JUDGMENTS

RECOGNITION ACT §§ 1–2 (UNIF. L. CMM’N 1962).

161

. See DeTray v. AIG Ins. Co. of Can., No. 2:17-CV-0983 RAJ, 2018 WL 4184334, at *6 (W.D. Wash.

Aug. 31, 2018) (holding that the Canadian court’s declaration of nonliability to Washington resident for accident

in Washington was not enforceable under Washington’s version of the 2005 Act because it was not for a sum of

money).

162

. See Savage v. Zelent, 777 S.E.2d 801, 807 (N.C. Ct. App. 2015) (holding that Scottish court’s award

of attorney fees and costs in failed support claim were within the 2005 Act’s scope) (citing persuasive authority

from Ohio and New York and cited no contrary authority). The same distinctions occurred under the 1962 Act.

See Burelle v. Gilbert, 806 N.Y.S.2d 443 (App. Term. 2005) (enforcing a Canadian judgment regarding marital

property distribution and finding this was not support but equitable property distribution) (decided under 1962

Act).

November 2020] MONEY JUDGMENT ENFORCEMENT 131

distinctions occur with fines and penalties.

163

The 2019 Registration Act ties into

the 2005 Act’s scope

164

but clarifies on issues such as bankruptcy.

165

B. JURISDICTION AND VENUE

Forum competence is a common issue in the cross-border enforcement of

any judicial order. Competence includes personal jurisdiction (both amenability

and notice), subject matter jurisdiction, and venue. All three issues matter even

when challenging competence within one forum. Although venue tends to fade

in a cross-border analysis, all three are nonetheless considered below as they

may arise under the 2005 Act or the 2019 Registration Act. There are two

distinct questions: Was the rendering forum competent? Is the enforcing forum

competent? It is important to distinguish them either to establish or attack them.

1. The Rendering Forum

The rendering forum’s competence is governed initially by that forum’s

law, subject to safeguards under Sections 4 and 5 of the 2005 Act. Section 4 of

the 2005 Act imposes jurisdictional requirements, specifically that no foreign-

country judgment may be enforced unless it satisfies personal jurisdiction

166

and

subject matter jurisdiction.

167

Section 5 lists acceptable bases of personal

jurisdiction along with a catchall allowing the enforcing forum to find other

acceptable bases.

a. Personal Jurisdiction—Amenability and Notice

Personal jurisdiction is a frequent defense to foreign-country judgments

168

and it is important to note both its components and the proper terminology.

Personal jurisdiction comprises amenability and notice.

169

Amenability is the

163

. See, e.g., L’Institute Nat’l De L’Audiovisuel v. Kultur Int’l Films, Ltd., No. CIV. 11-6309, 2012 WL

296997, at *3 (D.N.J. Feb. 1, 2012) (holding that French judgment for copyright infringement, obtained by a

French government agency, was compensatory and not penal) (decided under 1962 Act). See infra notes 262–

267 for further discussion of fines and penalties.

164

. The 2019 Registration Act states:

SECTION 3. APPLICABILITY.

(a) This [act] supplies to a Canadian judgment to the extent the judgment is within the scope

of [cite to Section 3 of the Uniform Foreign-Country Money Judgments Recognition Act].

(b) A Canadian judgment that grants both recovery of a sum of money and other relief may

be registered under this [act], but only to the extent of the grant of monetary relief.

subject matter not within the scope of this [act] may be registered under this [act], but only to

the extent the judgment relates to subject matter within the scope of this [act].

UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT § 3 (UNIF. L. CMM’N 2019).

165

. See id. § 3 cmt. 1.

166

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT § 4(b)(2) (UNIF. L. CMM’N 2005).

167

. See id. § 4(b)(3).

168

. Tanya J. Monestier, Whose Law of Personal Jurisdiction? The Choice of Law Problem in the

Recognition of Foreign Judgments, 96 B.U. L. REV. 1729, 1731–32 (2016).

169

. “Every foreign judgment, of whatever nature, in order to be entitled to any effect, must have been

rendered by a court having jurisdiction of the cause, and upon regular proceedings, and due notice.” Hilton v.

Goyot, 159 U.S. 113, 166–67 (1895). For more recent affirmations regarding foreign judgment recognition, see

132 HASTINGS LAW JOURNAL [Vol. 72:99

defendant’s susceptibility to a forum’s assertion of jurisdiction and is governed

both by the adjudicating forum’s law and a fairness standard.

170

Notice is the act

of notifying defendants of the pending action, and it is also governed by the

adjudicating forum’s law and a due process or reasonableness standard.

171

Both

elements—amenability and notice—are required to exercise adjudicatory

jurisdiction.

172

That is, a defendant who resides in the forum is still not subject

to personal jurisdiction until proper notice is served. Similarly, nonresidents who

receive proper legal notice are not subject to the court’s jurisdiction unless they

have a sufficient connection to the adjudicating state. Terminology is sometimes

misapplied in analyzing these two. Although “notice” is generally used in the

proper context, “amenability” is sometimes discussed synonymously with

“personal jurisdiction.”

173

Whatever terms are used, it’s important to remember

that both are required.

(1) Amenability

The judgment debtor’s amenability to the rendering forum is of course

governed initially by that jurisdiction’s law, at least when assessed there. Once

the foreign judgment is filed or registered in the United States, that earlier

assertion of personal jurisdiction must comply with Section 5 of the 2005 Act,

which lists six acceptable grounds for jurisdiction. That is, the enforcing court

must accept the rendering court’s jurisdiction if it is based on the defendant

having any one of six acts occur in the rendering jurisdiction: (1) personal

service; (2) voluntary appearance other than a special appearance; (3) a forum

clause; (4) domicile, or a business entity’s principal place of business or

incorporation there; (5) a business office with the claim arising from business

done there; or (6) operation of a motor vehicle or airplane related to the claim.

174

AO Alfa-Bank v. Yakovlev, 230 Cal. Rptr. 3d 214, 224–25 (2018) (discussing Murphy Bros., Inc. v. Michetti

Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)); see also DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d

373, 386 (5th Cir. 2015) (decided under 1962 Act).

170

. In the United States, the fairness standard comes from constitutional due process. See, e.g., Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 470–72 (1985). In other countries, fairness may be imposed by local

law, and if not, then by a reasonableness standard under public international law. See RESTATEMENT (FOURTH)

FOREIGN RELATIONS LAW OF THE U.S. §§ 402–04 (AM. L. INST. 2017). In addition, jurisdictional reasonableness

is collectively imposed by other countries whose courts refuse to recognize judgments rendered without a

reasonable claim of defendant’s amenability to the forum.

171

. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314–15 (1950).

172

. See AO Alfa-Bank, 230 Cal. Rptr. 3d at 224–25 (discussing Murphy Bros., 526 U.S. at 350 regarding

foreign-country judgment recognition). But see Louis Dreyfus Commodities Suisse, SA v. Fin. Software Sys.,

Inc., 703 F. App’x 79, 83 (3d Cir. 2017). Personal jurisdiction defense “refers only to the substantive dimensions

of personal jurisdiction, such as sufficient minimum contacts, and not the technical requirements for service of

process.” Id.

173

. See, e.g., EOS Transp. Inc. v. Agri-Source Fuels LLC, 37 So. 3d 349 passim (Fla. Dist. Ct. App. 2010)

(discussing amenability under the larger heading of “personal jurisdiction”) (decided under 1962 Act); accord,

DeTray v. AIG Ins. Co. of Can., No. 2:17-CV-0983 RAJ, 2018 WL 4184334 passim (W.D. Wash. Aug. 31,

2018).

174

. Section 5 of the 2005 Act reads:

(a) A foreign-country judgment may not be refused recognition for lack of personal

jurisdiction if: (1) the defendant was served with process personally in the foreign country;

November 2020] MONEY JUDGMENT ENFORCEMENT 133

These six grounds are non-exclusive; the enforcing court may find other

acceptable grounds, but must accept these six grounds. Other than the examples

in Section 5, the 2005 Act does not discuss the law of personal jurisdiction or its

components and instead leaves that to the enforcing state’s law to interpret in

the recognition process.

175

Defendants who have a feasible challenge to the

rendering forum’s jurisdiction should consider raising that challenge in the

rendering forum, although many defendants make a tactical choice to wait until

the resulting judgment is enforced.

When the question of the rendering forum’s competence reaches the

enforcing forum, courts have split on what law governs the rendering forum’s

amenability. Understanding the function of jurisdictional analysis—not only in

foreign-judgment enforcement but in all jurisdictional settings—requires

reference to the Supreme Court’s consistent application of a non-formulaic

approach. In Burger King Corp. v. Rudzewicz, the Court expressly rejected “any

talismanic jurisdictional formulas; ‘the facts of each case must [always] be

weighed’ in determining whether personal jurisdiction would comport with ‘fair

play and substantial justice.’”

176

Emphasizing further that it was not merely a

factual determination, but one in which the formula was often vague, the Court

added that “any inquiry into ‘fair play and substantial justice’ necessarily

requires determinations ‘in which few answers will be written in black and

white. The greys are dominant and even among them the shades are

innumerable.’”

177

The Court was referring of course to the due process test rather

than a state’s assertion of jurisdiction under its long arm rules. On that point, it

is important to remember that the due process test does not itself create

amenability, but merely serves as a limit on the various forum states’ long-arm

assertions, whose formulae have varied significantly. Amenability, then, is a

matter of various opinions controlled largely by often differing state and federal

opinions.

(2) the defendant voluntarily appeared in the proceeding, other than for the purpose of

protecting property seized or threatened with seizure in the proceeding or of contesting the

jurisdiction of the court over the defendant;

(3) the defendant, before the commencement of the proceeding, had agreed to submit to the

jurisdiction of the foreign court with respect to the subject matter involved;

(4) the defendant was domiciled in the foreign country when the proceeding was instituted or

was a corporation or other form of business organization that had its principal place of

business in, or was organized under the laws of, the foreign country;

(5) the defendant had a business office in the foreign country and the proceeding in the foreign

court involved a [cause of action] [claim for relief] arising out of business done by the

defendant through that office in the foreign country; or

(6) the defendant operated a motor vehicle or airplane in the foreign country and the

proceeding involved a [cause of action] [claim for relief] arising out of that operation.]

UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 5 (UNIF. L. CMM’N 2005).

175

. See id. § 6 cmt. 4. For criticism of jurisdictional analyses in judgment enforcement, see generally

Monestier, supra note 168. For examples of jurisdictional issues that can arise, see infra notes 211–228 and

accompanying text.

176

. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485–86 (1985) (alteration in original) (quoting Kulko

v. Cal. Super. Ct., 436 U.S. 84, 92 (1978)).

177

. Id. at 486 n.29 (quoting Kulko, 436 U.S. at 92).

134 HASTINGS LAW JOURNAL [Vol. 72:99

The 2005 Act’s six jurisdictional bases in Section 5(a) should

accommodate most fact patterns. To allow for the flexibility inherent in

amenability questions, the 2005 Act’s Section 5(b) also gives the enforcing

forum the discretion to recognize other jurisdictional bases. Even so, many

enforcing courts have ignored Section 5(a)’s six bases, even where one or more

clearly applies, and instead analyzed the rendering forum’s jurisdiction under

one or more of three laws: (1) the rendering forum’s law,

178

(2) the enforcing

forum’s long-arm law,

179

or (3) the due process standard of International Shoe

and progeny.

180

Some courts have applied combinations,

181

including all

three.

182

Arguments can be made for any of these, but a review of the 2005 Act

and preclusion principles should narrow the choices, as explained here:

(a) Applying the Rendering Forum’s Law: The 2005 Act is limited to a

foreign-country judgment that, “under the law of the foreign country where

rendered, is final, conclusive, and enforceable.”

183

At least in countries where

enforceability required personal jurisdiction, it is clear that the rendering court’s

law applies to the qualifying determination of personal jurisdiction. But this does

not mean that the enforcing forum will invariably be analyzing the rendering

court’s law of jurisdiction. Because of preclusion, the rendering court’s

amenability law should require analysis in the enforcing forum in only one of

178

. See Osorio v. Dole Food Co., 665 F. Supp. 2d 1307, 1352 (S.D. Fla. 2009) (not a default) (applying

only Nicaraguan law and reversed the rendering court’s finding of jurisdiction and concluding that it had not

followed Nicaraguan law); see also Naves v. Nat’l W. Life Ins. Co., No. 03-08-00525-CV, 2009 WL 2900755,

at *2 (Tex. Ct. App. Sept. 10, 2009). In Naves, the Texas Court of Appeals rejected a Brazilian court’s

jurisdiction to render a default judgment by applying only Brazilian law, relying on the Texas Uniform Foreign

Money Judgment Recognition Act and sections 36.0044(g) and 36.005(a)(2) of the Texas Civil Practice and

Remedies Code. Id. at *4. These two cases applied only the rendering court’s jurisdictional rules, but several

others have applied the rendering court’s law along with International Shoe’s due process standards. E.g., EOS

Transp. Inc., 37 So. 3d at 354 (decided under 1962 Act) (default in Canada) (enforcing court applied both

Canadian law and due process in holding that Canada lacked personal jurisdiction).

179

. See Monks Own Ltd. v. Monastery of Christ in Desert, 142 P.3d 955, 961–62 (N.M. Ct. App.), aff’d,

168 P.3d 121 (N.M. 2006) (decided under 1962 Act) (default judgment in Ontario) (enforcing court in New

Mexico applied both the New Mexico long arm statute and due process).

180

. See Bank of Montreal v. Kough, 430 F. Supp. 1243, 1247 (N.D. Cal. 1977) (explaining that Canadian

court’s personal jurisdiction over defendant must have been, “at a minimum, in compliance with the

requirements of traditional notions of fair play and substantial justice under the due process clause of the United

States Constitution”), aff’d, 612 F.2d 467 (9th Cir. 1980); Royal Extrusions Ltd. v. Cont’l Window & Glass

Corp., 812 N.E.2d 554, 558–59 (Ill. App. Ct. 2004) (decided under 1962 Act). In Royal Extrusions, the judgment

debtor objected to Canadian jurisdiction in the original action, then challenged it again when the final Canadian

judgment was filed for enforcement in Illinois. Id. at 556–57. The Illinois court upheld Canadian jurisdiction

under Fourteenth Amendment due process, focusing on World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286 (1980), Burger King Corp., 471 U.S. 462, and Illinois cases applying those principles. Id. at 558–59.

181

. Perhaps the most common combination is the enforcing court’s long arm statute and due process. See,

e.g., Pure Fishing, Inc. v. Silver Star Co., 202 F. Supp. 2d 905, 913–17 (N.D. Iowa 2002). A New York court

applied the rendering court’s law and New York state law but not due process. See Canadian Imperial Bank of

Commerce v. Saxony Carpet Co., 899 F. Supp. 1248, 1252 (S.D.N.Y. 1995) (decided under 1962 Act).

182

. See Evans Cabinet Corp. v. Kitchen Int’l, Inc., 593 F.3d 135, 144–46 (1st Cir. 2010). The case was

litigated on the merits in Canada and the judgment debtor challenged Canadian jurisdiction in the enforcing

court, which examined the jurisdictional laws of Quebec, Massachusetts, and federal due process to find a lack

of jurisdiction. Id. at 140, 144–46.

183

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 3(a)(2) (UNIF. L. CMM’N 2005).

November 2020] MONEY JUDGMENT ENFORCEMENT 135

three possible circumstances. First, if the judgment debtor objected to

amenability in the rendering forum (either by special or general appearance) and

lost the objection, the rendering forum’s decision may be preclusive of any

further review in the enforcing forum. That is, the enforcing forum should not

second-guess the rendering forum’s decision about its own law of jurisdiction.

184

Second, if the judgment debtor failed to object in the rendering forum but

otherwise participated, that failure probably waived any objection to

amenability, depending on the rendering forum’s law. Once again, the enforcing

forum should defer to the rendering forum’s application of its law. Third, if the

judgment debtor failed to participate at all in the rendering forum’s litigation and

suffered a default judgment, then the amenability issue was not litigated and can

be raised in the enforcing court. Only the third scenario—default—calls for the

enforcing court to apply the rendering forum’s amenability law.

185

(b) Applying the Enforcing Forum’s Long-Arm Law: Although some

courts have unquestioningly applied their own amenability law (not including

due process) to test the power of the rendering court, it is difficult to justify. The

practice is effectively the internationalization of the forum’s long arm rule, and

it violates Hilton’s description of the comity appropriate for foreign-country

judgments.

186

Nonetheless, some courts have done that.

187

chooses to apply a jurisdictional standard other than the six listed in Section 5(a)

of the 2005 Act, the most appropriate standard is International Shoe’s due

process test, and that is the choice of most enforcing courts either by itself or

along with the rendering or enforcing forum’s law.

In contemplating the new 2019 Registration Act, the drafters anticipated

that Canadian judgments would seldom rest on exorbitant jurisdictional

grounds.

188

There are, however, several examples of various states rejecting

Canadian jurisdiction, but not because the Canadian standard was exorbitant.

189

184

. See Hilton v. Guyot, 159 U.S. 113, 194 (1985) (quoting Chief Justice John Marshall in Elmendorf v.

Taylor, 23 U.S. (10 Wheat.) 152, 159–60 (1825)). But see Osorio v. Dole Food Co., 665 F. Supp. 2d. 1307,

1324–26 (S.D. Fla. 2009), which rejected the rendering court’s finding of jurisdiction in a litigated case, almost

certainly plain error.

185

. See, e.g., EOS Transp., Inc. v. Agri-Source Fuels LLC, 37 So. 3d 349, 352 (Fla. Dist. Ct. App. 2010)

(decided under 1962 Act); see also Monestier, supra note 168, at 1731–32 (arguing that only the enforcing

state’s law should determine the rendering court’s jurisdiction).

186

. See Hilton, 159 U.S. at 194.

187

. See Evans Cabinet, 593 F.3d at 144–46 (applying Quebec law, Massachusetts law, and due process to

find no jurisdiction in the rendering court); DeJoria v. Maghreb Pretroleum Expl., SA, 804 F.3d 373, 386–89

(5th Cir. 2015) (applying Moroccan law, Texas law, and due process to uphold the rendering court’s

jurisdiction).

188

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENT ACT, Prefatory Note at 3 (UNIF. L. CMM’N

2019) (“There is a high expectation that Canadian courts ‘will follow procedures comporting with U.S. notions

of fundamental fairness and jurisdiction . . . .’”).

189

. See DeTray v. AIG Ins. Co. of Can., No. 2:17-CV-0983 RAJ, 2018 WL 4184334, at *5 (W.D. Wash.

Aug. 31, 2018); EOS Transp., Inc., 37 So. 3d at 354 (decided under 1962 Act); Att’y Gen. of Can. v. Gorman,

769 N.Y.S.2d 369, 373–75 (Civ. Ct. 2003) (holding that the judgment creditor failed to offer evidence of

Canada’s in personam jurisdiction); K & R Robinson Enters. Ltd. v. Asian Exp. Material Supply Co., 178 F.R.D.

332, 345 (D. Mass. 1998) (decided under 1962 Act).

136 HASTINGS LAW JOURNAL [Vol. 72:99

(2) Notice of the Rendering Forum’s Action

The 2005 Act addresses notice in several ways. Section (b)(2) forbids

recognition if the rendering court lacked personal jurisdiction.

190

Because

personal jurisdiction requires both amenability and notice

191

it is clear that the

2005 Act requires notice and forbids recognition without it. The 2005 Act’s due

process defenses include notice, consistent with the Mullane case.

192

In addition

to Mullane’s basic notice standard, the 2005 Act also imposes the rendering

country’s notice standard (along with amenability) in its requirement that the

foreign-country judgment be enforceable under the rendering court’s law.

193

addition to these requirements to serve notice, Section 4(c)(1) provides that the

enforcing court may discretionarily refuse to recognize the foreign-country

judgment if defendant did not receive notice in time to prepare a defense in the

rendering forum.

194

Finally, Section 5(a)(1) recognizes amenability if the

judgment debtor was served with process personally in the foreign country.

In spite of these multiple notice references, the 2005 Act expressly

mentions notice in the rendering forum only once—Section 4(c)(1), providing a

discretionary ground for the enforcing court to dismiss if late notice in the

rendering forum hampered the judgment debtor’s defense there. Critics

complain that this lack of express references to notice (as opposed to implied

references in personal jurisdiction, due process, and the rendering court’s law)

has led courts to misconstrue the notice requirement,

195

and it has. Some courts

have found no notice requirement,

196

some have accepted actual notice as

sufficient,

197

and some have imposed the strictest due process standards.

198

cases upholding a notice requirement, there is disagreement about which law

190

. Section 4(b) provides that, “[a] court of this state may not recognize a foreign-country judgment

if . . . (2) the foreign court did not have personal jurisdiction over the defendant.” UNIF. FOREIGN-COUNTRY

MONEY JUDGMENTS RECOGNITION ACT § 4(b) (UNIF. L. CMM’N 2005).

191

. The role of notice in creating personal jurisdiction goes back at least to 1869 in Bischhoff v. Wethered.

76 U.S. (9 Wall.) 812, 814 (1869) (holding that an English judgment without notice “was wholly without

jurisdiction of the person” and “can have no validity here”). Hilton echoed this in stating the prima facie validity

requirements for foreign-country judgments: “Every foreign judgment, of whatever nature, in order to be entitled

to any effect, must have been rendered by a court having jurisdiction of the cause, and upon regular proceedings,

and due notice.” Hilton, 159 U.S. at 166–67. The Uniform Acts have, of course, not altered this.

192

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS ACT § 4(b)(1) (due process as a mandatory defense),

§ 4(c)(8) (giving the enforcing court discretion to reject a judgment rendered in questionable due process

grounds); see also Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950).

193

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 3(a)(2).

194

. “A court of this state need not recognize a foreign-country judgment if: (1) the defendant in the

proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant

to defend . . . .” Id. § 4(c)(1).

195

. See Monestier, supra note 168, at 1774–83 and sources cited there.

196

. E.g., Louis Dreyfus Commodities Suisse, SA v. Fin. Software Sys., 703 F. App’x 79, 83 (3d Cir. 2017).

197

. See DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373, 387 (5th Cir. 2015).

198

. E.g., Koster v. Automark Indus., Inc., 640 F.2d 77, 81 n.3 (7th Cir. 1981) (citing Wuchter v. Pizzutti,

276 U.S. 13, 24 (1928)) (determining that Dutch service of process was mailed to the United States and received

by the judgment debtor; in spite of that actual notice, the Dutch method was constitutionally inadequate because

the Dutch service rule did not require the Dutch official to mail the notice, thus failing the reasonably calculated

requirement).

November 2020] MONEY JUDGMENT ENFORCEMENT 137

controls notice.

199

As with amenability, it is doubtful that Canadian notice

standards will violate due process although the proceeding in a particular case

may.

200

(3) Default Judgment in the Rendering Jurisdiction

A default judgment can implicate both amenability and notice issues.

Although a default judgment can only be set aside by the rendering forum, the

judgment debtor may prevent enforcement in the enforcing forum if the default

judgment’s basis of jurisdiction violates the 2005 Act’s requirements for

amenability

201

or notice.

202

Moreover, even though a foreign country default

judgment would still stand unless set aside where rendered, a collateral attack in

the enforcing forum may be preclusive on the issue of lack of amenability or

notice if that issue was not litigated earlier in the rendering forum.

A foreign default judgment is only a problem under the 2005 Act if it

becomes final.

203

If a final default judgment from a foreign country is filed under

the 2005 Act, and if the judgment debtor earlier challenged the default in the

rendering forum, the rendering forum’s decision is preclusive of any challenge

in the enforcing forum unless the rendering forum’s standard violates the 2005

Act’s due process safeguard.

204

b. Subject Matter Jurisdiction

The 2005 Act blocks enforcement of a foreign-country judgment from a

court lacking subject matter jurisdiction.

205

Unlike its treatment of personal

jurisdiction, the 2005 Act does not list acceptable bases for foreign subject

matter jurisdiction and it is obvious that the issue is controlled entirely by the

rendering forum’s law. If the defendant litigates the issue in the rendering forum,

199

. See Naves v. Nat’l W. Life Ins. Co., No. 03-08-00525-CV, 2009 WL 2900755, at *4 (Tex. Ct. App.

Sept. 10, 2009) (decided under 1962 Act) (applying only Brazilian law in finding lack of notice); Midbrook

Flowerbulbs Holland B.V. v. Holland Am. Bulb Farms, Inc., 874 F.3d 604, 617 (9th Cir. 2017) (applying only

Dutch law to uphold notice, holding that American due process doesn’t necessarily control); AO Alfa-Bank v.

Yakovlev, 230 Cal. Rptr. 3d 214, 233–36 (Ct. App. 2018) (applying Russian law and the federal due process

standard); DeJoria, 804 F.3d at 386–87 (decided under 1962 Act) (applying Moroccan law, Texas law, and

federal due process); Syncrude Can. Ltd. v. Highland Consulting Grp., Inc., 916 F. Supp. 2d 620, 626 (D. Md.

2013) (decided under 1962 Act) (holding that notice under the Hague Convention on Service of Process Abroad

was sufficient to establish personal jurisdiction); Hubei Gezhouba Sanlian Indus. Co., v. Robinson Helicopter

Co., No. 2:06-CV-01798-FMCSSX, 2009 WL 10672970, at *1 (C.D. Cal. Sept. 25, 2009) (holding that Hague

service sufficient where it also satisfied Federal Rule of Civil Procedure 4(d)(3)).

200

. See Vrozos v. Sarantopoulos, 552 N.E.2d 1093, 1097–98 (Ill. App. Ct. 1990) (decided under 1962 Act);

Isack v. Isack, 733 N.W.2d 85, 89 (Mich. Ct. App. 2007) (decided under 1962 Act); K & R Robinson Enters.

Ltd. v. Asian Exp. Material Supply Co., 178 F.R.D. 332, 343 (D. Mass. 1998) (decided under 1962 Act).

201

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4(b)(1) (UNIF. L. CMM’N

2005).

202

. See id. § 4(b)(c)(7)–(8).

203

. Interlocutory defaults are not enforceable under the 2005 Act, see id. § 3(a)(2) (finality requirement),

or for that matter under the common law. See Hilton v. Guyot, 159 U.S. 113 passim (1985).

204

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4(b)(1), (c)(7)–(8).

205

. See id. § 4(b)(3).

138 HASTINGS LAW JOURNAL [Vol. 72:99

that decision is preclusive of any collateral attack in the enforcing forum.

206

the defendant waits to challenge subject matter jurisdiction until the foreign

judgment is filed in the United States under the 2005 Act, the rendering forum’s

law will control that question. The 2019 Registration Act makes no change to

this and defers entirely to the 2005 Act.

c. Venue

The 2005 Act does not mention venue in the rendering forum, and neither

does the 2019 Registration Act. As with other rendering-forum validity issues,

the matter is necessarily controlled by the rendering forum’s law.

207

Venue

issues in the rendering forum are not grounds for objection in the enforcing

forum.

2. The Enforcing Forum

This Subpart focuses only on the enforcing forum’s jurisdiction.

208

The

guidepost for the enforcing forum’s jurisdiction is found in Section 6, Comment

4 of the 2005 Act which provides that the judgment creditor’s filing in the

enforcing forum must comply with all procedural rules in the enforcing forum.

That is, the 2005 Act contemplates the filing of a new lawsuit that will use a

summary procedure to domesticate the foreign-country judgment. The 2019

Registration Act, in comparison, merely requires registration of the foreign-

country judgment which then becomes enforceable if the judgment debtor does

not raise objections within thirty days.

209

In spite of the 2019 Registration Act’s

use of a registration procedure, the registration must still comply with the

enforcing forum’s procedure in several regards, as explained below. The overall

guidepost for both the 2005 Act’s and the 2019 Registration Act’s procedures is

that the enforcing forum’s law governs questions not otherwise addressed by the

2005 Act.

a. Personal Jurisdiction

(1) Amenability

The 2005 Act does not address amenability and disclaims any intent to do

so.

210

The 2019 Registration Act serves merely as a corollary to the 2005 Act

and also refrains from addressing amenability in the enforcing state.

211

summarize the two Acts’ position on enforcing state amenability, the 2005 Act

206

. See supra notes 184–185 and accompanying text.

207

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4 cmt. 2 (citing RESTATEMENT

(SECOND) OF CONFLICTS OF LAWS ch. 5, topic 3, intro. note (AM. L. INST. 1971)).

208

. For a discussion of challenging the rendering forum’s jurisdiction in the enforcing court, see supra

notes 176–204 and accompanying text.

209

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 5.

210

. “Nor does this Act address the question of what constitutes a sufficient basis for jurisdiction to

adjudicate with regard to an action under Section 6.” Id. § 6 cmt. 4.

211

. The 2019 Registration Act uses the term “jurisdiction” eight times, none in reference to the enforcing

forum. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT (UNIF. L. CMM’N 2019).

November 2020] MONEY JUDGMENT ENFORCEMENT 139

directs that the judgment creditor can implement recognition by filing a new

lawsuit in the enforcing state

212

on which a summary proceeding may be possible

unless the judgment debtor raises fact issues that require a trial. The 2019

Registration Act, serving merely as an inset to the 2005 Act, provides a

registration procedure that circumvents the summary proceeding unless the

judgment debtor raises objections requiring adjudication. In providing these two

approaches—filing and registering—the two Acts leave other procedural

questions to the enforcing state’s law.

213

The enforcing state’s law, then, controls procedural aspects of the foreign

judgment’s processing, including the requirements for the judgment debtor’s

amenability there.

214

This should be a matter of routine but can raise interesting

questions, based partly on how we perceive the domestication of foreign-country

judgments. One view is that domestication is a new lawsuit that the plaintiff

hopes will lead to a summary judgment based on the preclusive effect of the

judgment rendered in the foreign country.

215

This view, of course, suggests that

the defendant/judgment debtor be traditionally amenable to the forum state. A

different view is that domestication is necessarily a summary proceeding

(assuming the foreign judgment qualifies) based on valid and final litigation

concluded elsewhere. This second view supports but does not compel the

conclusion that full-fledged amenability does not apply and instead the only

issue is the presence of the judgment debtor’s assets.

Both arguments are plausible, and courts have gone in both directions,

though not necessarily articulating the bases stated above. This has led to at least

three positions on the requirement for the judgment debtor’s amenability in the

enforcing forum. The first is that the judgment debtor must be subject to standard

amenability under the enforcing forum’s long arm rules and due process.

216

The

second position is that some forms of in rem jurisdiction may be acceptable.

217

212

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 6(a).

213

. “While this Section sets out the ways in which the issue of recognition of a foreign-country judgment

may be raised, it is not intended to create any new procedure not currently existing in the state or to otherwise

effect existing state procedural requirements. The parties to an action in which recognition of a foreign-country

judgment is sought under Section 6 must comply with all state procedural rules with regard to that type of

action.” Id. §6 cmt. 4.

214

. See id; see also RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 99 (AM. L. INST. 1971) (local law

governs enforcement methods).

215

. Comment 3 of Section 6 of the 2005 Act undermines this view with the statement that, “[a]n action

seeking recognition of a foreign-country judgment under this Section is an action on the foreign-country

judgment itself, not an action on the underlying cause of action that gave rise to that judgment.” UNIF. FOREIGN-

COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 6 cmt. 3. However, that comment goes on to explain that

the characterization as a mere action on the judgment means that the defendant cannot relitigate the merits. Id.

As noted above, comment 4 of Section 6 further provides that the enforcing forum’s law controls procedure and

jurisdiction for the enforcement action. See supra note 214 and accompanying text.

216

. See Ronald A. Brand, Federal Judicial Center International Litigation Guide: Recognition and

Enforcement of Foreign Judgments, 74 U. PITT. L. REV. 491, 506 (2013) (discussing Base Metal Trading Ltd. v.

OJSC “Novokuznetsky Aluminum Factory,” 283 F.3d 208 (4th Cir. 2002) (decided under 1962 Act)).

217

. See Electrolines, Inc. v. Prudential Assurance Co., 677 N.W.2d 874, 878, 885–86 (Mich. Ct. App.

2003) (decided under 1962 Act) (enforcing court may exercise in personam or in rem jurisdiction, but Michigan

had neither in this case); Intrigue Shipping, Inc. v. Shipping Assocs., Inc., No. FSTCV135014113S, 2013 WL

6978815, at *4 (Conn. Super. Ct. Dec. 13, 2013) (decided under 1962 Act) (citing several cases, holding that

140 HASTINGS LAW JOURNAL [Vol. 72:99

The third position is that there is no need to establish in personam or in rem

jurisdiction in the enforcing forum.

218

The 2005 Act observes this split of

authority, noting that the Supreme Court provided a possible basis for in rem

jurisdiction in its Shaffer v. Heitner opinion.

219

Interestingly, the Canadian

Supreme Court took the third position in 2015.

220

There is no indication that the 2019 Registration Act adopts any of these

three positions, which is consistent with the 2005 Act’s non-position here.

Nonetheless, because the 2019 Registration Act removes the requirement of a

new lawsuit and substitutes a registration procedure that will be clerical in many

cases, the argument can be made that the 2019 Registration Act is all the more a

summary proceeding against assets, consistent with any local judgment

enforcement. How that directs the jurisdictional analysis is for the enforcing

forum to decide.

Yet another question is the amenability required for a third-party asset

holder. The 2005 Act’s jurisdictional defenses refer to “defendant” even though

in some cases the filing in the United States may be against another party such

as a garnishee. The 2019 Registration Act acknowledges this with references to

“the person against whom the judgment is being registered”

221

or similar

phrases. No cases on point were found, but this would seem to be an in rem or

quasi in rem jurisdictional assertion to be decided under the enforcing state’s

law.

proof of personal jurisdiction unnecessary and further that judgment creditor alleged presence of assets in

forum); Electrolines, Inc., 677 N.W.2d at 880 (decided under 1962 Act) (holding that there must be an in

personam basis if judgment creditor fails to allege presence of property); Pure Fishing, Inc. v. Silver Star Co.,

202 F. Supp. 2d 905, 910 (N.D. Iowa 2002) (citing Shaffer v. Heitner, 433 U.S. 186, 210 n.36 (1977)) (decided

under 1962 Act) (holding that there is no need for personal jurisdiction in judgment enforcement cases). Note

that Pure Fishing, Inc. is discussed above for the point requiring the minimum contacts standard for personal

jurisdiction for rendering courts. See supra note 181 and accompanying text.

218

. New York courts (following the 1962 Act) have articulated this more than courts in other states. See

Lenchyshyn v. Pelko Elec., Inc., 723 N.Y.S.2d 285, 291 (App. Div. 2001) (decided under 1962 Act) (holding

that no in personam jurisdiction is necessary and no property need be present; often cited for that point), clarified

in AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A., 73 N.Y.S.3d 1, 3 (App. Div. 2018) (decided under 1962 Act)

(holding that if defendant raises objection under the 2005 Act, then enforcing court must have a jurisdictional

basis, in personam or in rem), further clarified in Diaz v. Galopy Corp. Int’l, N.V., 79 N.Y.S.3d 494, 498 (Sup.

Ct. 2018) (finding that if no defense raised under the 2005 Act, then no need for any proof of jurisdiction). For

other states, see Haaksman v. Diamond Offshore (Bermuda) Ltd., 260 S.W.3d 476, 481 (Tex. Ct. App. 2008)

(decided under 1962 Act) (determining that there was no need for in personam or in rem, following Lenchyshyn).

Accord Beluga Chartering B.V. v. Timber S.A., 294 S.W.3d 300, 305 (Tex. App. 2009) (decided under 1962

Act); see also Abu Dhabi Commercial Bank PJSC v. Saad Trading, Contracting & Fin. Servs. Co., 986 N.Y.S.2d

454, 457–58 (App. Div. 2014).

219

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 6 cmt. 4 (citing Shaffer, 433 U.S.

at 210 n.36 (1977) (“Once it has been determined by a court of competent jurisdiction that the defendant is a

debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a

State where the defendant has property, whether or not that State would have jurisdiction to determine the

existence of the debt as an original matter.”)).

220

. See Chevron Corp. v. Yaiguaje, [2015] 3 S.C.R. 69, paras. 63–77 (Can.).

221

. E.g., UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENT ACT § 4(b)(4) (UNIF. L. CMM’N 2019).

November 2020] MONEY JUDGMENT ENFORCEMENT 141

(2) Notice in the Enforcing Forum

Although there are differing theories on amenability in the enforcing

forum, it is inconceivable that enforcement would not entail sufficient notice.

The 1962 Act did not provide a filing procedure, which resulted in confusion on

a few points including notice.

222

The 2005 Act clarified the filing procedure with

a new section specifying that for newly initiated recognition actions, the process

is commenced “by filing an action seeking recognition of the foreign-country

judgment.”

223

Similarly, a party may raise a foreign judgment in a pending claim

(for preclusion, offset, or as a distinct enforcement claim) by counterclaim,

cross-claim, or affirmative defense.

224

The comment to Section 6 emphasizes

that the 2005 Act’s process is a new lawsuit which must comply with all local

procedures in the enforcing state, and that the Act itself does not create any

supplemental procedures other than the codifying the common law of

preclusion.

225

The filing of a new action necessarily requires the notice that goes

with that action under the enforcing state’s law. The success of that 2005 change

may be measured by the lack of notice cases arising in the adopting states.

The 2019 Registration Act goes further and provides a distinct notice

section which requires notice “in the same manner that a summons and

[complaint] must be served”

226

under the 2005 Act. The drafting committee

considered less notice such as certified mail under the theory that the 2019

Registration Act is a registration procedure rather than a new lawsuit, and the

judgment debtor would have already had notice of the foreign judgment. This,

of course, raised the problem of default judgments in the foreign jurisdiction,

and the drafting committee could not design an effective means of a distinct

notice requirement only for foreign defaults. As a result, the drafting committee

decided to require the same notice as required under the 2005 Act, which is the

notice given when filing a new lawsuit in the enforcing state. Although the

terminology may vary, this means a summons or praecipe issued and served

under the enforcing state’s law.

In some instances, the 2005 Act or the 2019 Registration Act could be used

against a party other than the judgment debtor. One example is a garnishment

action against a bank holding funds for the judgment debtor. Several questions

arise for this setting, and one is the notice required for the judgment debtor and

the third-party asset holder. Neither the 2005 Act nor the 2019 Registration Act

222

. Perhaps the most pointed reaction came from a Texas court of appeals which held the Texas version of

the 1962 Act unconstitutional for its lack of a notice provision. See Detamore v. Sullivan, 731 S.W.2d 122, 124

(Tex. Ct. App. 1987). The case did not go to the Texas Supreme Court so there was no immediate opportunity

to reverse it, but the Texas Supreme Court disapproved of it in Don Docksteader Motors, Ltd. v. Patal Enters.,

Ltd., pointing out that the 1962 Act implicitly required the filing of a new lawsuit including notice and an

opportunity to object. 794 S.W.2d 760, 761 (Tex. 1990). After Docksteader’s initial proceedings, the Texas

legislature amended its version of the 1962 Act to clarify the procedural steps. Id. at 761 n.1.

223

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 6(a) (UNIF. L. CMM’N 2005).

224

. Id. § 6(b).

225

. Id. § 6 cmt. 4. See supra note 210 and accompanying text.

226

. Id. § 6.

142 HASTINGS LAW JOURNAL [Vol. 72:99

address this, but it should be clear from both Acts that the enforcing state’s law

controls.

(3) Defaulting in the Enforcing Forum

This Subpart considers the effect of a default in the enforcing forum, not a

default in the rendering forum.

227

Under the 2005 Act, the judgment creditor is

pursuing a new claim and has the burden of proving the judgment debtor’s

obligation by using the foreign-country judgment as preclusive. The judgment

debtor has the ordinary answer time available under the enforcing state’s law for

a lawsuit. If the judgment debtor fails to answer, its default would presumably

concede the judgment creditor’s case, subject to a prove up with other variations

according to the enforcing state’s law. The 2019 Registration Act does not

contemplate a new lawsuit but the judgment debtor nonetheless has thirty days

to respond and raise a defense.

228

If the judgment debtor fails to respond, the

resulting default would immediately implement enforcement.

b. Subject Matter Jurisdiction in the Enforcing Forum

The 2005 Act implicitly requires that a proper court in the enforcing state

be used for its instructed process of filing a new lawsuit seeking recognition of

the foreign-country judgment.

229

This necessarily includes an enforcing state’s

court with subject matter jurisdiction, including the proper amount in

controversy.

230

The Registration Act expressly points to the 2005 Act’s court-

selection requirement.

231

If the judgment creditor files or registers in the wrong

court, not only may the judgment debtor object, but the improper court’s

resulting actions may be invalidated subject to the enforcing state’s law.

c. Venue in the Enforcing Forum

Neither the 2005 Act nor the 2019 Registration Act address venue at the

recognition/enforcing stage. Because both Acts emphasize their deference to the

enforcing state’s law on procedural questions, it should be clear that venue is

227

. For a discussion of default judgments in the rendering forum, see supra notes 201–204 and

accompanying text.

228

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENT ACT §§ 5(b), 7 (UNIF. L. CMM’N 2019).

229

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 6(a). If recognition of a foreign-

country judgment is sought as an original matter, the issue of recognition shall be raised by filing an action

seeking recognition of the foreign-country judgment.

230

. See, e.g., Sask. Mut. Ins. Co. v. CE Design, Ltd., 865 F.3d 537, 540–42 (7th Cir. 2017) (filing

enforcement action in Illinois federal court and court dismissing for lack of diversity jurisdiction). The issue

may also be the appellate court’s jurisdiction on a timely-filed appeal, as discussed in N.H. Ins. Co. v. Magellan

Reinsurance Co., No. 02-11-00334-CV, 2013 WL 105654, at *3–5 (Tex. Ct. App. Jan. 10, 2013) (decided under

1962 Act) (acknowledging the need for jurisdiction but finding it existed there).

231

. Section § 4(a) of the 2019 Registration Act states:

A person seeking recognition of a Canadian judgment in order to enforce the judgment may

of the judgment could be filed under [cite to Section 6 of the Uniform Foreign-Country Money

Judgments Recognition Act].

UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENT ACT § 4(a).

November 2020] MONEY JUDGMENT ENFORCEMENT 143

governed for actions under both the 2005 Act and the 2019 Registration Act by

the enforcing state’s law. Some states have modified their foreign-judgment Act

to include a venue provision.

232

When Texas adopted the 2005 Act in 2017, it

did not include a venue rule, so its version presumably defaults to Texas’s

standard venue rules. There are no reported rulings on this question from a state

applying the 2005 Act.

The United States’ UEFJA for sister-state judgment enforcement also lacks

a venue rule for the enforcing state, and that has led some courts to conclude that

there is no venue rule and the judgment creditor may pursue enforcement in any

court or district in the enforcing state.

233

Other states have interpreted the sister-

state Act’s silence on venue as calling for the general venue rule in those

states.

234

As noted above, there are no reported rulings on enforcing state venue

under the 2005 Act. Whatever the approach—general venue or venue-free—it is

up to the enforcing state’s law.

C. NON-JURISDICTIONAL CHALLENGES TO THE FOREIGN-COUNTRY JUDGMENT

Section 4 of the 2005 Act provides two categories of defenses—mandatory

and discretionary—to the foreign-country judgment’s recognition or

enforcement. As with many other issues in the 2005 Act, the enforcing court

must decide whether the objection is sufficient to justify rejection of the foreign-

country judgment.

1. Mandatory Grounds for Dismissal

The mandatory dismissal grounds in Section 4(b) are that the rendering

forum (1) was part of a judicial system “that does not provide impartial tribunals

or procedures compatible with the requirements of due process of law;”

235

(2)

232

. See, for example, TEX. CIV. PRAC. & REM. CODE ANN. § 36.0041, requiring filing in “the county of

residence of the party against whom recognition is sought or in any other court of competent jurisdiction as

allowed under the Texas venue laws.” Id. (repealed 2017).

233

. See L & R Expl. Venture v. Grynberg, 271 P.3d 530, 533–36 (Colo. Ct. App. 2011) (determining that

there was no venue requirement for sister-state judgment registrations in Colorado, reasoning that a judgment

enforcement under full faith and credit is not an “action” under Colorado venue law).

234

. See Garrett v. Okla. Panhandle State Univ., 156 P.3d 48, 50–51 (Okla. Civ. App. 2006); Cherwood,

Inc. v. Marlin Leasing Corp., 601 S.E.2d 356, 357–58 (Ga. Ct. App. 2004); Cantu v. Howard S. Grossman, P.A.,

251 S.W.3d 731, 737–38, 741–42 (Tex. Ct. App. 2008).

235

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT §4(b)(1) (UNIF. L. CMM’N 2005).

Note that this mandatory ground requires the judgment debtor to show that the foreign legal system lacks

impartiality or due process in its entirety and not just in that particular case. See DeJoria v. Maghreb Petroleum

Expl., SA, 804 F.3d 373, 382 (5th Cir. 2015) (holding that the judgment debtor failed to prove that the Moroccan

system was deficient as a whole). Contrast this with the discretionary ground under section 4(c)(7) of the 2005

Act which focuses only on the foreign judgment at issue. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS

RECOGNITION § 4(c)(7). Revolution or war has been a successful argument that the foreign judicial system was

defective. See Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir. 2000), in which the court declined to

recognize a Liberian judgment rendered during the Liberian Civil War, noting that “Liberia’s judicial system

was in a state of disarray and the provisions of the Constitution concerning the judiciary were no longer

followed.” Id. at 138; see also Harris Corp. v. Nat’l Iranian Radio & Television, 691 F.2d 1344, 1357 (11th Cir.

1982) (‘‘[T]he Islamic regime now governing Iran has shown a deep hostility toward the United States and its

citizens, thus making effective access to the Iranian courts unlikely.’’); Bank Melli Iran v. Pahlavi, 58 F.3d 1406,

144 HASTINGS LAW JOURNAL [Vol. 72:99

lacked personal jurisdiction;

236

or (3) lacked subject matter jurisdiction.

237

The

jurisdictional issues are discussed above.

238

As to impartial tribunals, the

judgment debtor must show that the failing exists with the entire judicial system

as a whole as opposed to the events occurring in that particular case.

239

Few

countries are found to meet this low standard, and never Canada.

2. Discretionary Grounds for Dismissal

Section 4(c) lists eight discretionary grounds for rejecting the foreign-

country judgment. They are (1) lack of notice of the foreign proceeding “in

sufficient time to enable the defendant to defend”;

240

(2) “the judgment was

obtained by fraud that deprived the losing party of an adequate opportunity to

present its case”;

241

(3) “the judgment or underlying claim is repugnant to the

public policy of this state or of the United States”;

242

(4) “the judgment conflicts

1411–13 (9th Cir. 1995) (refusing to enforce Iranian judgment and concluding that the Iranian judicial system

did not comport with due process). At the other extreme, the mere lack of American litigation opportunities is

often an unsuccessful challenge. See Soc’y of Lloyd’s v. Ashenden, 233 F.3d 473, 477–78 (7th Cir. 2000)

(finding the English system acceptable even though it lacks the United States concept of pre-trial discovery);

Soc’y of Lloyd’s v. Turner, 303 F.3d 325, 330 (5th Cir. 2002); Ingersoll Milling Mach. Co. v. Granger, 833 F.2d

680, 688 (7th Cir. 1987).

236

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4(b)(2).

237

. Id. § 4(b)(3).

238

. See supra notes 166–204 and accompanying text (personal jurisdiction), 205–206 and accompanying

text (subject matter jurisdiction).

239

. See Bank Melli Iran, 58 F.3d at 1410, 1413 (decided under 1962 Act). In contrast, section 4(c)(7)–(8)

of the 2005 Act provide discretionary grounds based on a lack of due process or doubting the rendering court’s

integrity in a particular case. See infra note 246 and accompanying text (referencing DeJoria v. Maghreb

Petroleum Expl., S.A., 935 F.3d 381, 387 (5th Cir. 2019)).

240

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4(c)(1).

241

. Id. § 4(c)(2).

242

. Id. § 4(c)(3). In general, the public policy defense is difficult to prevail on. See Allianz Suisse

Versicherungs-Gesellschaft v. Miller, 24 F. Supp. 3d 670, 676–79 (W.D. Mich. 2014) (explaining the difficult

standard while holding that a Swiss judgment for hockey injuries sustained in Switzerland did not violate the

enforcing state’s public policy). Among other limits, a mere difference in law is insufficient. See UNIF. FOREIGN-

COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4 cmt. 8. That the difference concerns fundamental rights

in the United States may not be enough. See Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 1013 (9th Cir. 2013)

(holding that the emotional distress judgment in Japan against church did not violate religion clause under

California or United States law). On the other hand, the defense sometimes works when invoking rights less than

religious freedom. See Aguerre v. Schering-Plough Corp., 924 A.2d 571, 582 (N.J. App. Div. 2007) (decided

under 1962 Act) (ruling in favor of judgment debtors’ public policy defense based on their objection that the

Argentine judgment that violated the rights of whistle blowers). A North Carolina court explained public policy

based on the 2005 Act’s definition: “Public policy is violated only if recognition of the foreign-country judgment

would tend clearly to injure the public health, the public morals, or the public confidence in the administration

of the law, or would undermine that sense of security for individual rights, whether of personal liberty or of

private property, which any citizen ought to feel.” Savage v. Zelent, 777 S.E.2d 801, 809 (N.C. Ct. App. 2015)

(quoting the North Carolina version of the Uniform Foreign-Country Recognition Act, North Carolina General

Statutes section 1C-1853(c)(3) cmt. 8, consistent with the 2005 Act section 4 cmt. 8) (denying judgment debtor’s

public policy challenge to a Scottish judgment for attorney fees and costs). As a mostly common law jurisdiction,

Canadian judgments will be even less likely to be refused on public policy grounds, but it has happened. See

Jaffe v. Accredited Sur. & Cas. Co., 294 F.3d 584, 598 (4th Cir. 2002) (decided under 1962 Act). Jaffe was a

Canadian default judgment against a bail bond company and its agents for kidnapping plaintiff. Virginia refused

to enforce the Canadian judgment because a Florida court (where it was originally brought for enforcement)

refused to give it recognition. Id. Florida would not recognize the Canadian judgment because doing so would

November 2020] MONEY JUDGMENT ENFORCEMENT 145

with another final and conclusive judgment”;

243

(5) “the proceeding in the

foreign court was contrary to forum agreement between the parties”;

244

(6) “in

the case of jurisdiction based only on personal service, the foreign court was a

seriously inconvenient forum for the trial of the action”;

245

(7) “substantial doubt

about the rendering court’s integrity with respect to the judgment”;

246

or (8) “the

specific proceeding in the foreign court was not compatible with the

requirements of due process of law.”

247

Several of these eight discretionary

grounds have no reported decisions. That does not mean the challenges are not

raised, but merely that they did not result in case law.

D. GOVERNING LAW BEYOND PERSONAL JURISDICTION

Choice of law rules in the United States are more court-made than

legislative and tend to be governed by state and not federal law.

248

This state law

dominance is subject to a few constitutionally compelled exceptions. The only

one relevant here is the due process requirement that the chosen law be

reasonably related to the dispute.

249

If the United States ratifies the new Hague

Judgments Convention, it is possible that Congress will federalize foreign-

country judgment enforcement, which may change some of the governing law

points noted below. In the current arrangement, whether the judgment creditor

contravene Florida’s public policy which promotes the apprehending of fugitives. Id. The most notable public

policy issue between the United States and Canada concerns Canadian defamation judgments which would be

barred in the United States by the First Amendment. In reaction to such judgments from Canada and other

countries, Congress enacted the Securing the Protection of our Enduring and Established Constitutional Heritage

(SPEECH) Act, 28 U.S.C. §§ 4101 et seq, and Canadian case law provided some of the motivation. See, e.g.,

Trout Point Lodge, Ltd. V. Handshoe, 729 F.3d 481, 487 (5th Cir. 2013). Even without the federal statute, it is

likely the public policy grounds in the 2005 Act would be grounds to reject the foreign defamation judgments.

Just to be sure, three states have amended their foreign-country judgment acts to provide an extra defense against

defamation judgments rendered in foreign countries. See CAL. CODE CIV. PRO. § 1725 (2019) (effective Jan. 1,

2018); OKLA. STAT. tit. 12, § 718A (2015) (effective Nov. 1, 2013); FLA. STAT. ANN. § 55.6055 (2019) (effective

July 1, 2009) (amending its version of the 1962 Act). The amendments do not appear to be from a uniform or

standardized statute.

243

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4(c)(4).

244

. Id. § 4(c)(5); see, e.g., Montebueno Mkt., Inc. v. Del Monte Corp-USA, 570 Fed. App’x 675, 676 (9th

Cir. 2014) (denying recognition based on violation of arbitration clause designating the Philippines).

245

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4(c)(6).

246

. Id. § 4(c)(7). Note the difference between the 2005 Act’s section 5(a)(1) defense of impartial tribunal

(which looks to the foreign country’s system as a whole), and sections 5(c)(7) and (8) (which look only to the

particular proceedings leading to the judgment in question). See DeJoria v. Maghreb Petroleum Expl., S.A., 935

F.3d 381, 387 (5th Cir. 2019).

247

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4(c)(8). Under state and federal

law in the United States, due process entails many specific rights in litigation. But when applied to foreign-

country judgments, the due process concept does not guarantee those same rights and instead assures

fundamental fairness. See Midbrook Flowerbulbs Holland B.V. v. Holland Am. Bulb Farms, Inc., 874 F.3d 604,

615–16 (9th Cir. 2017) (holding that Dutch court’s discovery rulings did not render the Dutch judgment

fundamentally unfair).

248

. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78–79 (1938). When federal courts have attempted to craft

choice of law rules for diversity cases, calling it a function of federal common law, the Supreme Court has

repeatedly reversed those courts and redirected them to the local state’s choice of law rule. E.g., Day &

Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4–5 (1975).

249

. See Home Ins. Co. v. Dick, 281 U.S. 397, 410–11 (1930).

146 HASTINGS LAW JOURNAL [Vol. 72:99

uses a state or federal court to enforce a foreign-country judgment, the choice of

law calculus will be drawn from the enforcing state’s rule.

Choice of law rules are also overwhelmingly directed to substantive legal

issues. Because most of the enforcement issues are procedural, even when

involving two countries, it is a general rule that the rendering jurisdiction’s law

will control most issues up to the point of filing under the 2005 Act, or

registering under the 2019 Registration Act, and the enforcing jurisdiction’s law

will control most questions in the enforcing jurisdiction from that point.

250

That

approach will get most answers correct, but not all.

1. In the Rendering Court

The most puzzling choice of law questions will arise in the enforcing court.

The governing law decisions made in the rendering court will typically concern

the merits of the initial case, and those decisions must be litigated and then

appealed in the rendering jurisdiction. Once that initial judgment is final, the

choice of law decisions made there are generally unassailable.

251

One possible exception is legislative jurisdiction. That is, if the rendering

court chooses a law (including its own) that lacks a reasonable connection to the

dispute, then the judgment debtor may have an objection in the enforcing court

under the enforcing forum’s public policy or jurisdictional standards.

252

This

could be true even if the judgment debtor argued and lost the point in the

rendering jurisdiction, if the rendering jurisdiction failed to apply the correct

reasonableness standard followed in the United States. There are no known

examples of the rendering forum’s choice of law decisions being challenged in

the enforcing court. To be clear, there are several cases challenging the fairness

of the law applied in the rendering court,

253

but not because the law lacked a

reasonable connection to the dispute. If the rendering court had personal

jurisdiction over the defendant/judgment debtor, it very likely has legislative

jurisdiction, at least to the extent of applying its own substantive law.

2. In the Enforcing Court

Once again, the forum’s choice of law rule applies, subject to due process

(legislative jurisdiction) limits.

254

a. Forum Clauses

Forum clause disputes will of course relate to the rendering forum’s

jurisdiction because parties do not draft forum clauses for judgment

250

. See RESTATEMENT (SECOND) CONFLICT OF LAWS § 99 (AM. L. INST. 1971) (explaining that local law

governs enforcement methods).

251

. Reconsidering the rendering forum’s choice of law decisions would be relitigating the original case.

See supra notes 136–140 and accompanying text.

252

. The United States Supreme Court recognized the due process limitation on choice of law in Home Ins.

Co., 281 U.S. at 411, and later cases. See generally HAY ET AL., supra note 5, at 157–66.

253

. See infra notes 290–297 and accompanying text.

254

. See supra note 252 and accompanying text.

November 2020] MONEY JUDGMENT ENFORCEMENT 147

enforcement. The Author, at least, has never heard of one. But even though the

forum clause dispute will focus on the rendering forum, the dispute can occur in

the enforcing forum in two distinct scenarios: First, the judgment debtor may

object to amenability in the rendering court under Section 4(b)(2) of the 2005

Act, a mandatory grounds for dismissal in the enforcing court. This is an

example of a prorogating clause—one that supports (or is argued as supporting)

the plaintiff’s choice of forum.

Second, the judgment debtor may object under the 2005 Act’s section

4(c)(5) that the judgment creditor’s original filing in the rendering court was

contrary to the parties’ forum clause designation of another place. That is called

a derogating clause—one that undermines plaintiff’s choice of forum—and it’s

a discretionary ground for dismissal.

In both instances—prorogating and derogating clauses—if the issue was

litigated in the rendering court, then the results there are likely preclusive of any

reconsideration in the enforcing court. Additionally, if the judgment debtor

participated in the rendering forum long enough to submit to the jurisdiction but

failed to object to a prorogating clause or assert their rights under the derogating

clause, then the issue is likely waived. But if the judgment debtor defaulted, then

the forum clause issue can be raised in the enforcing forum, and that brings up

the choice of law issue.

For both categories—prorogating and derogating—the enforcing court will

have to consider the clause’s validity, interpretation, and ultimately its

enforceability.

255

Those questions are difficult enough in routine litigation. The

choice of law permutations are too complex to address briefly here but are

conceptually more difficult when two forums are involved, and the second is

analyzing the first’s jurisdiction based on a forum clause that one jurisdiction

may accept and the other may not. The fallback rule may be that the enforcing

forum’s choice of law rule should control as to all three issues—validation,

interpretation, and enforceability.

These potential complexities often go unnoticed. In a typical foreign-

judgment-enforcement case involving forum clauses, the court does not engage

in a complex choice of law analysis.

256

That simple approach is justified in most

cases because the court applies the forum’s choice of law without objection. The

only foreign-judgment case found involving a detailed choice of law analysis of

a forum clause is from a federal court in Kansas, a common law state that has

255

. See Atl. Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49, 62–64 (2013); James P. George, Forum

Clauses at the Margin, 71 BAYLOR L. REV. 267, 333–49 (2019).

256

. See Dart v. Balaam, 953 S.W.2d 478, 482 (Tex. Ct. App. 1997) (decided under 1962 Act) (enforcing

Australian judgment because forum clause did not deprive Australia of jurisdiction); Courage Co. v. Chemshare

Corp., 93 S.W.3d 323, 338 (Tex. Ct. App. 2002) (decided under 1962 Act) (denying enforcement of Japanese

judgment in deference to arbitration clause); Montebueno Mktg., Inc. v. Del Monte Corp.-USA, 570 Fed. App’x

675, 677 (9th Cir. 2014) (denying enforcement of Philippine judgment based on contract arbitration clause, no

analysis of clause); Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 241 (4th Cir. 2017) (decided

under 1962 Act) (enforcing an Iraqi judgment over forum clause objection because judgment debtor waived

right to arbitration by voluntarily participating in the foreign litigation; applying forum law with no analysis of

the clause itself).

148 HASTINGS LAW JOURNAL [Vol. 72:99

never adopted either of the Uniform Acts regarding foreign-country

judgments.

257

In spite of that sole Kansas case, forum clauses are potential

trouble spots in 2005 Act cases.

b. Classifying the Foreign Judgment as Within the 2005 Act’s Scope

What law governs the characterization of the Canadian judgment in regard

to its coming within the scope of the 2019 Registration Act? Claims and

remedies sometimes have differing interpretations from one jurisdiction to

another. Although the rendering court’s law labels a dispute one way, the

enforcing court’s law may see it another way. The difference does not matter if

the claim’s altered label is nonetheless covered by the 2019 Registration Act,

but if the re-defined claim or remedy falls outside the 2019 Registration Act’s

scope, then the foreign-country judgment will not qualify for the 2005 Act or the

2019 Registration Act.

258

Interestingly, the foreign claim or remedy is at that

point controlled by the enforcing state’s law because the question is whether the

foreign-country judgment falls within the scope of the enforcing state’s version

of the 2005 Act.

Because the 2005 Act’s scope excludes domestic relations judgments,

259

those cases sometimes provide examples for claim re-labeling. In a Scottish

court, Julie Zelent sued Alan Savage for support after their relationship failed.

Zelent lost her case and the court awarded Savage £148,516.75 in attorney fees

and costs.

260

Savage filed the resulting Scottish judgment in North Carolina

which upheld it, applying North Carolina law to characterize the Scottish

judgment as one for attorney fees (a sum of money) and not for support or

alimony.

261

An example of remedy re-labeling is the judgment debtor’s challenge of a

damage award as a fine or penalty which falls outside the 2005 Act’s scope.

262

In De Fontbrune v. Wofsy,

263

a 2001 French judgment awarded de Fontbrune

damages for Wofsy’s copyright infringement in reprinting Picasso’s work. The

French court also imposed a sanction, or astreinte, of €10,000 for each future

violation. Ten years later de Fontbrune brought another French action to enforce

the 2001 astreinte, and this time won two million euros for Wofsy’s multiple

violations. When de Fontbrune sought enforcement in California, Wofsy

257

. See Herr Indus., Inc. v. CTI Sys., SA, 112 F. Supp. 3d 1174, 1178 (D. Kan. 2015) (common law

recognition) (applying an Atlantic Marine analysis as to validity, interpretation and enforcement).

258

. Common law preclusion may be an option as long as the redefined claim or remedy does not violate

the enforcing state’s public policy. See supra notes 2–15 and accompanying text.

259

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 3(b)(3) (UNIF. L. CMM’N

2005); see also UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENT ACT § 3(a) (UNIF. L. CMM’N 2019)

(linking the 2019 Registration Act’s scope to that of the 2005 Act).

260

. See Savage v. Zelent, 777 S.E.2d 801, 803–04 (N.C. Ct. App. 2015).

261

. Id. at 804–07 (citing similar holdings from Ohio and New York).

262

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 3(b)(2); see also UNIF.

REGISTRATION OF CANADIAN MONEY JUDGMENT ACT § 3(a) (linking the 2019 Registration Act’s scope to that

of the 2005 Act).

263

. De Fontbrune v. Wofsy, 838 F.3d 992 (9th Cir. 2016).

November 2020] MONEY JUDGMENT ENFORCEMENT 149

objected that the astreinte was a penalty or fine and therefore uncollectible.

264

The lower court agreed and dismissed the enforcement action but the Ninth

Circuit reversed. In determining that the astreinte was merely a judgment for a

sum of money and not a penalty, the court of appeals applied California law to

characterize the astreinte’s function, but was influenced by French law’s

description as an enforcement of a private right and not a public sanction.

265

To the extent the labeling question involves arguments about penalties, the

enforcing forum’s law is likely to dominate because the old common law rule

rejected penalties from other jurisdictions. Nonetheless, the common law rule

itself calls for an examination of the foreign law’s purpose, as done in the de

Fontbrune case.

266

Apart from the penalty label, foreign judgments are also

objected to as excessive and thus violating public policy, although the challenge

is difficult to maintain.

267

As shown in the examples above, damages challenges are often piecemeal,

attacking only one portion of the judgment such as punitive damages or some

other line item. The 2005 Act addresses mixed judgments and line-item

challenges with its “to the extent” language.

268

In spite of that language, at least

one court has questioned whether recognition under the 2005 Act permits line-

item damages challenge.

269

The 2019 Registration Act further emphasizes the

ability to enforce only portions of a mixed judgment (aiding the judgment

creditor) and also facilitates challenges (aiding the judgment debtor) by

264

. Id. at 995.

265

. Id. at 1000–06.

266

. Huntington v. Attrill, 146 U.S. 657 (1892) is the definitive common law statement about penalties in

the United States. In Huntington, the Supreme Court drew from United States case law, English case law, and

Blackstone’s Commentaries to come up with the following definition.

The question whether a statute of one State, which in some aspects may be called penal, is a

penal law in the international sense, so that it cannot be enforced in the courts of another State,

depends upon the question whether its purpose is to punish an offence against the public

justice of the State, or to afford a private remedy to a person injured by the wrongful act.

Huntington, 146 U.S. at 673–74. Huntington is still invoked in judgment enforcement cases including those

under the 2005 Act. E.g., De Fontbrune, 838 F.3d at 1001; L’Institute Nat’l de L’Audiovisuel v. Kultur Int’l

Films, Ltd., No. CIV. 11-6309, 2012 WL 296997, at *3 (D.N.J. Feb. 1, 2012) (finding that French judgment was

remedial and not penal); Desjardins Ducharme v. Hunnewell, 585 N.E.2d 321, 323–24 (Mass. 1992) (finding

that Canadian damages were remedial rather than a penalty); Chase Manhattan Bank, N.A. v. Hoffman, 665 F.

Supp. 73, 75 (D. Mass. 1987) (finding that Belgian damages from civil case but related to criminal activity were

remedial and not penal); see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 89, 89 cmt. d, 98, 120 cmt.

d (AM. L. INST. 1971).

267

. See, e.g., Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 711–12 (Tex.

App. 1998) (enforcing Canadian judgment over objections that the Canadian court’s measure of damages for

patent infringement was excessive and violated public policy).

268

. Section 3(a) of the 2005 Act that the Act applies “to the extent that the judgment: (1) grants or denies

recovery of a sum of money; and (2) under the law of the foreign country where rendered, is final, conclusive,

and enforceable.” UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 3(a). Section 3(b) repeats

this in its exclusion of certain judgments, stating that the Act does not apply “to the extent that the judgment is:

(1) a judgment for taxes; (2) a fine or other penalty; or (3) a judgment for divorce, support, or maintenance, or

other judgment rendered in connection with domestic relations”). Id. § 3(b).

269

. “We find no authority for the proposition that the circuit court can pick and choose the portions of a

foreign court’s order that will be recognized and enforced.” CE Design Ltd. v. HealthCraft Prods., Inc., 79

N.E.3d 325, 333 (Ill. App. Ct. 2017).

150 HASTINGS LAW JOURNAL [Vol. 72:99

requiring the judgment creditor to designate which portions of the foreign-

country judgment are being pursued in the enforcing forum.

270

c. Finality in the Rendering Jurisdiction

Judgment finality is a basis for disqualifying the foreign-country

judgment.

271

Although the issue would seemingly be governed by the rendering

jurisdiction’s law, arguments sometimes arise when the enforcing forum’s

definition of finality differs from that in the rendering forum. A common ground

for the differing definitions is the effect of appeal on finality—does appeal

postpone enforcement, or must the judgment debtor post a bond pending the

appeal’s outcome?

Those differing views apply only to a jurisdiction’s internal treatment of its

own judgments, but what happens when the jurisdiction is assessing a judgment

from another jurisdiction? In the United States, full faith and credit requires that

states give sister-state judgments the same effect they have in the rendering

state.

272

Should that view apply to foreign-country judgments? The California

Supreme Court offered a thorough discussion in Manco Contracting Co.

(W.L.L.) v. Bezdikian

273

in which it disapproved of a California Court of Appeals

opinion that applied California’s finality definition to a Korean judgment. The

Manco court held the rendering jurisdiction’s law controlled finality in the

enforcing court, and noted that to its knowledge no other court in the United

States had reached the same conclusion as that in Korea Water.

274

d. Authentication or Certification of the Foreign Judgment

The 2005 Act states only that, “A party seeking recognition of a foreign-

country judgment has the burden of establishing that this [act] applies to the

foreign-country judgment.”

275

The 2019 Registration Act at least implies, if not

directs, that the rendering jurisdiction’s law (Canadian federal or provincial)

controls authentication (or certification).

276

This seems to be a settled issue and

no case law disputes this.

e. What Assets Are Subject to Execution

Related to damages objections, another question is what assets are subject

to execution in the enforcing state after the foreign judgment is domesticated.

270

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENT ACT § 4(b)(4) (UNIF. L. CMM’N 2019).

271

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 3(a)(2), cmt. 3 (limiting the

Act’s scope to final judgments).

272

. See U.S. CONST. art. IV, § 1; see also Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373,

380 (1985).

273

. Manco Contracting Co. (W.L.L.) v. Bezdikian, 195 P.3d 604 (Cal. 2008).

274

. Id. at 611 (citing several consistent holdings from other states); see also Nicholas v. Env’t Sys. (Int’l)

Ltd., 499 S.W.3d 888, 898–900 (Tex. Ct. App. 2016) (finding that rendering state’s law controls finality).

275

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 3(c).

276

. The 2019 Registration Act provides that, “[a] registration under subsection (a) must include: (1) a copy

of the Canadian judgment authenticated as accurate by the court that entered the judgment.” UNIF. REGISTRATION

OF CANADIAN MONEY JUDGMENT ACT § 4(b)(1).

November 2020] MONEY JUDGMENT ENFORCEMENT 151

The convenient (and perhaps wrong) answer is that the enforcing jurisdiction’s

law governs enforcement procedures, including asset susceptibility. Logic

suggests that the enforcing state’s law would govern which assets are subject to

execution because at that point, the judgment has been domesticated in the

enforcing state. The Washington Supreme Court saw it differently in Shanghai

Commercial Bank Limited v. Kung Da Chang.

277

In that case, Chang defaulted

on loan to Shanghai Commercial Bank in Hong Kong. The bank obtained a $9

million judgment from a Hong Kong court, then sought to enforce it in Chang’s

home state—Washington—and sought collection against Chang’s marital

property. That is, the bank filed against both husband and wife, where the wife

had not been a party to the loan, was not in the lawsuit, and may not have been

subject to Hong Kong jurisdiction. The Changs objected in the Washington

court, pointing out that Washington law barred enforcement against the marital

property in these circumstances. But the marital property was a proper target

under Hong Kong law. The Washington Supreme Court held that Hong Kong

law governed based on the loan’s choice of law clause (and again, she was not a

party to that agreement) and the court’s finding that Hong Kong had the most

significant relationship to the issue.

278

In spite of this Washington result, there

should be valid arguments for asset susceptibility to be a question purely of the

enforcing state’s law. Those arguments’ validity may vary with the facts of

particular cases (such as party status or whether the asset was pledged as

security), but otherwise it is difficult to see asset execution—an in rem

procedure—as anything other than a local law question.

Yet another variation is what assets are subject to provisional remedies in

the enforcing court pending the foreign judgment’s domestication. The 2005 Act

does not address this, again because that Act requires the filing of a lawsuit and

litigation, even if summary. That lawsuit’s status as local litigation almost

certainly means that the enforcing state’s law governs provisional remedies. The

answer is the same with the 2019 Registration Act, but perhaps with a twist. The

2019 Registration Act speeds up domestication by presuming the Canadian

judgment to be enforceable though subject to a thirty-day waiting period for the

judgment debtor to raise defenses.

279

Because of this quicker finality, the 2019

Registration Act bars the use of provisional remedies that dispose of the

judgment debtor’s property, but allows remedies under the enforcing state’s law

that secure the property.

280

If the judgment creditor seeks to place a lien on the

judgment debtor’s property, what law governs exemption? The express answer

in the 2019 Registration Act is that the enforcing state’s law governs,

281

but it’s

conceivable that Canadian law could be pertinent, especially where corporate

assets are at issue.

277

. Shanghai Com. Bank Ltd. v. Chang, 404 P.3d 62 (Wash. 2017).

278

. Id. at 65–70.

279

. See UNIF. REGISTRATION OF CANADIAN MONEY JUDGMENT ACT § 5.

280

. See id.

281

. See id. § 5(b).

152 HASTINGS LAW JOURNAL [Vol. 72:99

f. Privity with the Judgment Debtor—Who Is Subject to Execution?

Judgments may also be enforced in many cases against non-parties such as

successors in interest or asset holders such as banks. The 2005 Act does not

address privity with the judgment debtor because that issue requires addressing

in the litigation to domesticate the foreign-country judgment. The 2019

Registration Act, however, directs enforcement as to “the person against whom

recognition of the judgment through registration is sought”

282

and “[a] person

against whom a Canadian judgment has been registered.”

283

This creates the

possibility of filing against someone not named in the Canadian judgment. To

the extent the 2019 Registration Act allows filing against an alleged asset holder,

various arguments could be made about what law defines privity. The few cases

that have addressed this have split between the rendering forum’s law

284

and the

enforcing forum’s law.

285

g. Interest

In discussing judgment interest, both in this Article and with the enforcing

court, it is important to distinguish prejudgment and post-judgment interest.

Prejudgment interest is awarded as compensable damages in the final judgment

and will be subsumed in the judgment award. Once that foreign judgment

reaches the enforcing court, any question of the prejudgment interest will not be

subject to challenge because of the proscription on relitigating the merits. It

could be said that if the subject does arise, it should be governed by the rendering

jurisdiction’s law, but that point is unnecessary because the issue has been

finally decided.

286

Post-judgment interest consists of the rate awarded in the final judgment

and the effective date from which it runs. Just as the prejudgment interest rate is

not subject to re-litigation, so should the rendering court’s award of post-

282

. Id. § 6(a).

283

. Id. § 7(a).

284

. See Johnson v. Ventra Grp., Inc., 191 F.3d 732, 738–39 (6th Cir. 1999). Johnson obtained a judgment

in Ontario against Canadian company Manutec for breach of an employment contract. Id. at 737. After that,

Manutec went through corporate reorganization and became Ventra, which in a prior structure had been

Manutec’s parent. Id. Johnson filed his Canadian judgment in a Michigan state court, and Ventra removed it to

federal court. Id. To collect, Johnson had to prove that as a matter of Canadian law, Ventra was liable as successor

to Manutec’s assets. Id. at 737–38. The trial court ruled against Johnson on this and the Sixth Circuit Court of

Appeals affirmed. See id. at 738, 750.

285

. See United Steelworkers, Local 1-1000 v. Forestply Indus., Inc., 702 F. Supp. 2d 798, 802–03 (W.D.

Mich. 2010). Canadian judgment in favor of Canadian labor union and against Michigan-based steel company,

for violation of collective bargaining in Canada. Id. at 799–800. The Canadian judgment included damages

against Forestply and one officer/owner, but when the union filed in Michigan for enforcement, Forestply was

insolvent. Id. The union then sought enforcement against two of Forestply’s principals who were not named in

the Canadian judgment. Id. at 801. The enforcing court allowed this but required a trial to determine the new

defendants’ status as principals. Id. at 807.

286

. In Sw. Livestock & Trucking Co. v. Ramón, the enforcing court found that a Mexican judgment on a

promissory note with a forty-eight percent prejudgment interest rate did not violate Texas public policy and

precluded relitigation in Texas. 169 F.3d 317, 319, 322–23 (5th. Cir. 1999).

November 2020] MONEY JUDGMENT ENFORCEMENT 153

judgment interest be a precluded issue unless the judgment debtor can persuade

the enforcing court that it violates public policy.

287

Although post-judgment interest is generally not re-litigable in regard to

the original award, it is subject both to calculation and change in the enforcing

court because of (1) the interest accrued after rendering but before filing in the

enforcing court, and (2) the interest accrued in the enforcing jurisdiction after

domestication. As with other enforcement procedures, this is a matter of the

enforcing court’s law. Although the 2005 Act does not address post-judgment

interest,

288

the 2019 Registration Act does in Section 4(b)(6)(A), limited to

requiring the judgment creditor to list the interest rate awarded in the rendering

court, the effective date, and the portions of the judgment to which it applies.

Other issues are up to the enforcing jurisdiction’s law. Logic suggests that the

enforcing court would calculate the post-judgment interest accrued under the

rendering jurisdiction’s law (from issuance up to the date of domestication in the

enforcing jurisdiction), then include that amount in the new domesticated

judgment, and impose an appropriate post-judgment rate under the enforcing

state’s law.

289

h. Evaluating Due Process, Fundamental Fairness, and Impartiality

Foreign-country judgment enforcement under both comity and the

Uniform Acts is replete with due process references and its synonyms. In stating

the common law standard, Hilton used terms like “full and fair trial,” “regular

proceedings,” and “impartial administration of justice,”

290

rather than due

process, perhaps to avoid confusion with the United States meaning. The 2005

Act, however, uses “due process” as the basis for a mandatory and a

discretionary dismissal grounds. Section 4(b)(1) requires dismissal if the

enforcing court finds that the rendering court’s judicial system as a whole lacked

impartial tribunals or used procedures incompatible with due process.

291

Section

4(c)(8) allows discretionary dismissal if the specific proceeding (rather than the

system in general) violated due process.

292

In contemplating an enforcement or a defense, it is important to note that

the due process concept in the 2005 Act is not limited to familiar standards under

state or federal law in the United States. Although many (but not all) enforcing

287

. See Hyundai Sec. Co. v. Lee, 182 Cal. Rptr. 3d 264, 271–73 (Ct. App. 2015) (finding that the Korean

court’s post-judgment interest rate of twenty percent did not violate California public policy).

288

. See generally UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT (UNIF. L. CMM’N

2005). There was no need because the 2005 Act’s requirement of filing a new lawsuit which, if successful,

produced a new local judgment. Id. § 7 cmt. 3. The 2019 Registration Act, in contrast, simply registers and

domesticates the Canadian judgment unless judgment debtor raises an appropriate challenge. UNIF.

REGISTRATION OF CANADIAN MONEY JUDGMENT ACT § 4(b)(6)(A) (UNIF. L. CMM’N 2019).

289

. In Hyundai Sec., the California court did exactly that, holding that the twenty percent Korean rate

would run from the date of the Korean judgment up to the date of domestication in California, and after that, the

California post-judgment rate of ten percent would be used. Hyundai Sec., 182 Cal. Rptr. 3d at 273.

290

. Hilton v. Guyot, 159 U.S. 113, 202 (1895).

291

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4(b)(1).

292

. See id. § 4(c)(8).

154 HASTINGS LAW JOURNAL [Vol. 72:99

courts use the United States due process standard to assess amenability and

notice in the rendering court,

293

other challenges to the foreign process should

be measured by a broader assessment. Specifically, for challenges under

Sections 4(b)(1), 4(c)(7), and 4(c)(8), the question is whether the foreign

proceeding conformed to what the Seventh Circuit has termed the “international

concept of due process.”

294

As a comment the 2005 Act notes: “Procedural

differences, such as absence of jury trial or different evidentiary rules are not

sufficient to justify denying recognition under subsection (b)(1), so long as the

essential elements of impartial administration and basic procedural fairness have

been provided in the foreign proceeding.”

295

The case law applying these elusive

standards do not exercise a choice of law as such, but instead conduct an

assessment of basic fairness.

296

Although United States law may inform the due

process and fairness analysis, it should not define it. And while the standard is

vague, due process objections do prevail in some cases.

297

i. Superseding Law in the Enforcing Court: Federal and

International

The enforcing court’s local law will govern most aspects of enforcement

but in some cases will be superseded by federal law or even international law.

One example of federal law is the SPEECH Act

298

which Congress passed in

2010 in response to defamation judgments from foreign courts based on

statements made in the United States. Statements intentionally and originally

placed on the internet are often the source of the foreign court’s jurisdictional

assertion,

299

but in one case a Canadian plaintiff based it on her ability to

download a book from the internet.

300

SPEECH is an acronym for Securing the

Protection of our Enduring and Established Constitutional Heritage Act,

301

which is also known as the Libel Tourism Act. Under the SPEECH Act, a

judgment creditor with a foreign defamation judgment must show that the

foreign law offers at least as much protection for speech as that protected by our

First Amendment and resulting case law. Three states have amended their

foreign-country money judgment Acts to provide extra defense against

defamation judgments rendered in foreign countries. Two states—California and

293

. See supra notes 178–187 and accompanying text.

294

. Soc’y of Lloyd’s v. Ashenden, 233 F.3d 473, 478 (7th Cir. 2000).

295

. UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4 cmt. 5.

296

. See Ashenden, 233 F.3d at 477.

297

. See DeJoria v. Maghreb Petroleum Expl., S.A., 935 F.3d 381, 395–96 (5th Cir. 2019) (declining a

Moroccan judgment); Bridgeway Corp. v. Citibank, 201 F.3d 134, 144 (2d Cir. 2000) (declining a Liberian

judgment rendered during the Liberian Civil War).

298

. Securing the Protection of Our Enduring and Established Constitutional Heritage Act, 28 U.S.C.

§§ 4101–05 (2018).

299

. See Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 483–84, 496 (5th Cir. 2013) (rejecting Nova

Scotia defamation judgment regarding statements made on a website based in Mississippi).

300

. See Pontigon v. Lord, 340 S.W.3d 315, 316 (Mo. Ct. App. 2011) (rejecting an Ontario defamation

judgment arising from a book written in Missouri which the Canadian judgment creditor was able to download

on her computer).

301

. 28 U.S.C. §§ 4101–05.

November 2020] MONEY JUDGMENT ENFORCEMENT 155

Oklahoma—amended their versions of the 2005 Act

302

and Florida amended its

1962 Act.

303

The amendments do not appear to be from a uniform or

standardized statute.

The Foreign Sovereign Immunities Act

304

is another example. The FSIA

applies to both state and federal courts for any claim filed against a foreign state

as defined in the Act.

305

It governs the immunity of foreign countries and their

subsidiaries,

306

and in doing so addresses personal jurisdiction, service of

process, governing law for the underlying claim, and subject matter jurisdiction

if the claim is filed in federal court. The FSIA is premised on claims filed

originally in a court in the United States, but by its wording also applies to

assertions of judicial jurisdiction over a foreign sovereign for judgment

execution purposes.

307

If a Canadian court renders a judgment against a foreign

sovereign and the judgment creditor then attempts to enforce it under the 2019

Registration Act, the filing in the enforcing state (state or federal court) would

have to comply with the FSIA. Several enforcing courts have applied the FSIA

to recognitions under the 1962 Act or the 2005 Act, generally without question

as to the FSIA’s applicability. There have been four 2005 Act cases in the past

two years, all in the District of Columbia.

308

An interesting question is whether

the FSIA governs or at least assesses the rendering court’s jurisdiction. In

Commissions Import Export, S.A. v. Republic of Congo, the D.C. Circuit Court

of Appeals held that it did.

309

If the United States signs on to the new Hague Judgments Conventions

310

(or any other judgments treaty), it will preempt any inconsistent aspects of state

enforcement law, although the Convention appears compatible with both the

2005 Act and the 2019 Registration Act.

311

In addition, if the United States

eventually ratifies the Hague Choice of Court Convention,

312

the 2019

Registration Act may inform contested issues on forum clauses in establishing

302

. See CAL. CIV. PROC. CODE § 1725 (2019); OKLA. STAT. tit. 12, § 718A (2015).

303

. FLA. STAT. ANN. § 55.6055 (2019).

304

. 28 U.S.C. §§ 1330, 1602–11.

305

. See id. § 1603.

306

. See id. § 1603(b).

307

. See id. § 1610 (referring to execution “upon a judgment entered by a court of the United States or of a

State”).

308

. See Comm’ns Imp. Exp., S.A. v. Republic of the Congo, 118 F. Supp. 3d 220 (D.D.C. 2018); BCB

Holdings Ltd. v. Gov’t of Belize, 232 F. Supp. 3d 28 (D.D.C. 2017); Cont’l Transfert Technique Ltd. v. Fed.

Gov’t of Nigeria, 603 F. App’x 1 (D.C. Cir. 2015); SACE S.p.A. v. Republic of Para., 243 F. Supp. 3d 21

(D.D.C. 2017).

309

. See Comm’ns Imp., 118 F. Supp. 3d at 226–28.

310

. Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial

Matters, supra note 37.

311

. Id. at art. 13 (“The procedure for recognition, declaration of enforceability or registration for

enforcement, and the enforcement of the judgment, are governed by the law of the requested State unless this

Convention provides otherwise.”); see also id. at art. 15 (allowing for alternative enforcement under national

law).

312

. Convention on Choice of Court Agreements, supra note 33.

156 HASTINGS LAW JOURNAL [Vol. 72:99

the rendering court’s jurisdiction, or in challenging that jurisdiction if it

conflicted with the parties otherwise valid choice.

313

Apart from possible treaty application, customary international law has

applicable provisions even though they are less likely to be used by enforcing

courts. Specifically, customary international law echoes the due process clause’s

requirement that personal jurisdiction and choice of law (legislative jurisdiction)

be based on a reasonable connection between the parties, the dispute, and the

forum.

314

Other issues can arise inside or outside the terms of the 2019 Registration

Act. As to which law governs, the default rule should be that the enforcing state’s

law governs, either through its local law regarding judgment enforcement or

through its conflict of laws rule.

E. PARALLEL AND COLLATERAL LITIGATION

A conflicting judgment is a defense to recognition under the 2005 Act, and

accordingly to registration under the 2019 Registration Act.

315

There are no

reported cases raising that defense, but parallel or collateral litigation can affect

enforcement in other ways. With any parallel (that is, coinciding) litigation, the

first lawsuit to final judgment will have whatever preclusive effect is appropriate

against the remaining lawsuit or lawsuits.

316

Otter Valley Foods, Inc, v. Aliki Foods, LLC,

317

involved parallel litigation

in Connecticut and Ontario regarding frozen food products. Otter Valley was a

Canadian manufacturer of frozen food products and had various contracts with

Aliki, a Connecticut marketer of frozen foods. In 2005, the parties renegotiated

their agreement so that Aliki could pay down its accumulated debt to Otter. Then

in 2007, Otter shipped contaminated food to Aliki which had to be recalled. Aliki

sued Otter in federal court in Connecticut, and Otter then sued Aliki in Ontario

for breaching the 2005 agreement.

318

The Ontario case was first to judgment,

and Otter filed for recognition in Connecticut. Aliki defended on grounds that

Otter’s claim was (1) repugnant to public policy because of the attorney fees

based on English law, (2) a compulsory counterclaim which required filing in

the Connecticut action (which still had not reached final judgment), and (3)

subject to a set-off from the Connecticut action.

319

The enforcing Connecticut

313

. See supra note 244 and accompanying text (discussing section 4(c)(5) of the 2005 Act).

314

. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 402–04 (AM. L.

INST. 1987).

315

. See UNIF. FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION ACT § 4(c)(4) (UNIF. L. CMM’N

2005).

316

. See, e.g., Cromwell v. County of Sac, 94 U.S. 351, 353 (1877) (addressing both claim and issue

preclusion); see also HAY ET AL., supra note 5, at 1376–84.

317

. Otter Valley Foods, Inc. v. Aliki Foods, LLC, No. CV094009931, 2010 WL 2573760 (Conn. Super.

Ct. May 21, 2010).

318

. See id. at *1.

319

. See id. at *2–3.

November 2020] MONEY JUDGMENT ENFORCEMENT 157

court disagreed with all three defenses and ordered recognition of the Canadian

judgment.

320

Otter Valley was only a two-lawsuit dispute. Kitchens Intern., Inc. v. Evans

Cabinet Corp., Ltd.,

321

was a drawn-out dispute in Quebec, Georgia, New York,

and New Jersey regarding breach of contract. Kitchens obtained a Canadian

judgment and sought to enforce it in the United States and preclude Evans’s

parallel U.S. actions. Evans objected to the Canadian judgment on personal

jurisdiction grounds.

322

The New Jersey trial court upheld the Canadian

judgment but the court of appeals reversed, citing the federal action in the First

Circuit where Evans’s personal jurisdiction objection was pending, and noting

that the Canadian judgment was not conclusive.

323

Parallel cases may also be filed as declaratory judgment actions to be used

preclusively against an action on the merits. CE Design Ltd. v. HealthCraft

Products, Inc.

324

is an example where a party—ING Insurance Company—used

Illinois’s version of the 1962 Act to gain recognition of its Canadian declaratory

judgment to preclude liability incurred by a policy holder. The dispute started

when CE Design obtained a judgment against Healthcraft in Illinois, then took

an assignment of Healthcraft’s insurance rights against ING Insurance Co., an

Ontario corporation. Meanwhile, ING filed an action in Canada seeking a

declaration that it had no duty to defend Healthcraft.

325

When CE Design used

its assignment from Healthcraft to sue ING in Illinois, ING responded by filing

its Canadian declaratory judgment which led to the dismissal of Healthcraft’s

claim.

326

Collateral litigation, filed after the foreign judgment is filed in the

enforcing state, is another variation. Drake v. Brady

327

involved two default

judgments from Canadian small claims courts against two Minnesota couples

for unpaid bills to a Canadian resort, Northern Outpost (Brady). The judgment

creditor filed the two Canadian defaults in two Minnesota counties against the

respective couples. The couples then sued the resort in a separate Minnesota

court for deceptive trade practices and a declaration of the Canadian judgments’

unenforceability.

328

The Minnesota trial court (the collateral attack court, not the

enforcing court) dismissed the judgment debtors’ declaratory judgment claim

for legal inadequacies, and found it had no jurisdiction over the Canadian

defendants for the deceptive trade claims.

329

The Minnesota appellate court

320

. See id. at *3–4.

321

. Kitchens Int’l, Inc. v. Evans Cabinet Corp., 993 A.2d 252 (N.J. App. Div. 2010).

322

. Id. at 253–56.

323

. Id. at 256–58 (referring to Evans Cabinet Corp. v. Kitchen Int’l, Inc., 584 F. Supp. 2d 410 (D. Mass.

2008), rev’d, 593 F.3d 135 (1st Cir. 2010)) (stating that fact issues regarding personal jurisdiction precluded

summary judgment).

324

. CE Design Ltd. v. HealthCraft Prods., Inc., 79 N.E.3d 325 (Ill. App. Ct. 2017).

325

. See id. at 327–29.

326

. See id. at 329–33.

327

. Drake v. Brady, No. A08-2137, 2009 WL 2928157, at *5 (Minn. Ct. App. Sept. 15, 2009).

328

. See id. at *1.

329

. See id.

158 HASTINGS LAW JOURNAL [Vol. 72:99

affirmed the dismissal of the declaratory judgment action but reversed regarding

Minnesota jurisdiction over the Canadian parties on the deceptive trade claim.

330

The court remanded the case to the trial court for consideration of the judgment

creditor’s preclusion claim (based on the Canadian judgments), which the trial

court had not addressed because of the jurisdictional dismissal.

331

Investorshub.com, Inc. v. Mina Mar Group, Inc.

332

is an example of using

a federal court for a collateral attack raising federal public policy.

Investorshub.com is a website based in the United States, which posted

derogatory comments about Mina Mar Group, based in Ontario with a subsidiary

in Texas. Mina Mar obtained an Ontario default judgment against Investorshub

and other defendants which it then filed in a Florida state court.

333

In response,

Investorshub sued in federal court seeking a declaration that the Canadian

judgment was unenforceable under the SPEECH Act and under the Florida

version of the 1962 Act.

334

During the pre-trial phase, Mina Mar conceded and

the court entered the declaratory judgment as a consent decree.

335

This was an

effective use of a federal collateral attack, but unnecessary because the defense

could have been raised in the Florida state court.

CONCLUSION AND SPECULATIONS

The 2019 Registration of Canadian Money Judgments Act offers a new

level of efficiency for civil money judgment enforcement between Canada and

the United States. Rather than a stand-alone statute, it supplements the 2005

Uniform Foreign Country Money Judgment Recognition Act. But unlike the

2005 Act’s requiring “filing an action seeking recognition,” the 2019

Registration Act presumes the Canadian judgment’s enforceability and avoids

litigation unless the judgment debtor raises a defense.

That efficiency does not short-circuit due process safeguards. The 2019

Registration Act requires detailed information that both assists the court and

protects the judgment debtor. That detail—ranging from judgment

authentication to an accounting of the amount and interest already collected—

replicates the prima facie proof required in any summary judicial proceeding for

enforcement. Notice is also crucial. Where the 2005 Act implicitly requires

notice with the filing of a recognition lawsuit, the 2019 Registration Act

expressly requires both detailed information at the outset and service consistent

with the enforcing state’s rules for new lawsuit. In addition, the registering

attorney must attest to the judgment’s propriety, an express declaration of

validity as opposed to the imputed claim validity when filing an enforcing

lawsuit.

330

. See id. at *2–5.

331

. See id. at *6.

332

. Investorshub.com, Inc. v. Mina Mar Grp., Inc., No. 4:11CV9-RH/WS, 2011 WL 12506239 (N.D. Fla.

June 20, 2011).

333

. See id. at *1–2.

334

. See id. at *2.

335

. See id. at *3.

November 2020] MONEY JUDGMENT ENFORCEMENT 159

Proper registration and completed notice trigger a thirty-day waiting period

after which the judgment is enforceable under local law unless the judgment

debtor files a petition to vacate. Stays are not automatic but available upon a

showing of likelihood of success. The concern that foregoing litigation exposes

people to invalid judgments fails to consider that the current lawsuit process

typically allows only thirty days to respond before default.

The registration process is a balance of efficiency and detail that aids the

court and protects the judgment debtor. Matched with its Canadian counterpart,

money judgment enforcement between Canada and the United States will be

shortened (by months in some cases), and costs reduced, without sacrificing the

judgment debtor’s defenses.

So what’s next? If the registration process is viable for Canadian

judgments, what does it offer for other foreign-judgment enforcement in the

United States, or for that matter between other countries? It is tempting to argue

that this registration process provides a model for wider use, and that may be. If

the concern is the filing of questionable or even fraudulent judgments from any

given country, that can be done now under the 2005 Act. As the 2019

Registration Act does for Canadian judgments, a wider registration process

would retain all the defenses and protection of the 2005 Act along with more

detailed filing and notice requirements.

That’s the argument for wider use but it’s not realistic, at least not yet. The

reason is that governments are inherently resistant to commands—executive,

legislative, or judicial—from other governments. This resistance exists even

between polities in the same system. In the United States, for example, we

needed constitutional compulsion for interstate judgment recognition, and even

then states resist.

336

That inherent resistance to external judgments is not only

about the application process (such as registration), but the very idea of

domesticating foreign adjudication. A primary issue, then, is not so much

registration as it is recognition—what makes a foreign judgment acceptable for

domestication? Registration and other cross-border efficiencies won’t occur

without consensus on recognition standards.

That’s not to say that consensus on recognition is operationally necessary

for a registration process to work. It’s just to say that without recognition

consensus, the comfort level with registration won’t be there. The 2019 Hague

Judgments Convention,

337

focused on recognition standards and deferring to

signatories for the recognition process (for example, registration or litigation),

appears to be a good vehicle to pursue that consensus widely. But consensus

need not be universal. Smaller groups—two, for example—can benefit as well.

The group may be defined by a common legal history, culture, trade, or location,

and it’s notable that all four factors are true of Canada and the United States.

336

. See Fauntleroy v. Lum, 210 U.S. 230, 236–38 (1908) (finding that full faith and credit required

Mississippi to enforce Missouri judgment that violated Mississippi public policy); see also HAY ET AL., supra

note 5, at 1406–12 (discussing later cases).

337

. Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial

Matters, supra note 37.

160 HASTINGS LAW JOURNAL [Vol. 72:99

Wherever that alignment on recognition occurs, that group will be poised to

consider changing the application process to registration.

338

In achieving agreement, it may be important to limit consensus to

recognition standards and defer to the enforcing state’s local law on some

fundamental concepts as well as the enforcement process. Although the use of

local law for much of enforcement is obvious and difficult to imagine otherwise,

the point is not its use but the sharp distinctions among states on a wide variety

of fundamental issues, including some involving international standards. These

polar differences, many discussed in Part III, can encourage forum shopping by

creditors and asset hiding by debtors. This is not to propose that states abandon

local control, but merely that greater harmonization on key issues would benefit

predictable judgment enforcement. Local control and local distinctions are

understandable in light of the inherent in rem nature of executing against local

assets, but greater alignment on crucial issues could lead to comprehensive

judgment conventions. But we are not there yet, even for sister-state

enforcement in the United States.

339

Even without more alignment in the enforcing stage, we will see a growing

harmonization of judgment recognition standards, emanating from the 2019

Hague Judgments Convention or elsewhere. That standardization will in turn

lead to emphasis on more efficient application processes, and the 2019

Registration Act offers an excellent model.

338

. While a comparative study beyond Canada and the United States is outside this Article’s scope, the

2007 Lugano Convention appears to create a registration procedure: “The judgment shall be declared enforceable

immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The

party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any

submissions on the application.” Lugano Convention on Jurisdiction and the Recognition and Enforcement of

Judgments in Civil and Commercial Matters art. 41, Dec. 21, 2007, 2007 O.J. (L 339) 3, https://eur-

lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:22007A1221(03). The earlier European Union judgment

conventions merely referred to local law. See 1968 Brussels Convention on Jurisdiction and the Enforcement of

Judgments in Civil and Commercial Matters art. 33, Dec. 31, 1972, 1968 O.J. (L 299) 32, https://eur-

lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:41968A0927(01); Convention on Jurisdiction and the

Enforcement of Judgments in Civil and Commercial Matters art. 33, Nov. 25, 1988, 1988 O.J. (L 319) 9,

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A41988A0592. Of course, the full faith and

credit statute, now codified at 28 U.S.C. § 1738, has mandated a simple authentication process for sister-state

judgment recognition in the United States since 1790. Although that can be described as an internal procedure,

it was not necessarily perceived that way at the time.

339

. See Baker v. General Motors Corp., 522 U.S. 222, 235 (1998) (quoting McElmoyle ex rel. Bailey v.

Cohen, 38 U.S. (13 Pet.) 312, 325 (1839)); see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 99 (AM.

L. INST. 1971).

November 2020] MONEY JUDGMENT ENFORCEMENT 161

IV. APPENDICES

A. THE UNIFORM FOREIGN-COUNTRY MONEY JUDGMENTS RECOGNITION

ACT (2005)

UNIFORM FOREIGN-COUNTRY

MONEY JUDGMENTS RECOGNITION ACT

340

SECTION 1. SHORT TITLE. This [act] may be cited as the [Uniform

Foreign-Country Money Judgments Recognition Act].

SECTION 2. DEFINITIONS. In this [act]:

(1) “Foreign country” means a government other than:

(A) the United States;

(B) a state, district, commonwealth, territory, or insular possession of the

United States; or

to whether to recognize a judgment of that government’s courts is initially

subject to determination under the Full Faith and Credit Clause of the United

States Constitution.

(2) “Foreign-country judgment” means a judgment of a court of a foreign

country.

SECTION 3. APPLICABILITY.

(a) Except as otherwise provided in subsection (b), this [act] applies to a

foreign-country judgment to the extent that the judgment:

(1) grants or denies recovery of a sum of money; and

(2) under the law of the foreign country where rendered, is final,

conclusive, and enforceable.

340

162 HASTINGS LAW JOURNAL [Vol. 72:99

(b) This [act] does not apply to a foreign-country judgment, even if the

judgment grants or denies recovery of a sum of money, to the extent that the

judgment is:

(1) a judgment for taxes;

(2) a fine or other penalty; or

(3) a judgment for divorce, support, or maintenance, or other judgment

rendered in connection with domestic relations.

burden of

establishing that this [act] applies to the foreign-country judgment.

SECTION 4. STANDARDS FOR RECOGNITION OF FOREIGN-

COUNTRY

JUDGMENT.

(a) Except as otherwise provided in subsections (b) and (c), a court of this

state shall recognize a foreign-country judgment to which this [act] applies.

(b) A court of this state may not recognize a foreign-country judgment if:

(1) the judgment was rendered under a judicial system that does not provide

impartial tribunals or procedures compatible with the requirements of due

process of law;

(2) the foreign court did not have personal jurisdiction over the defendant;

(3) the foreign court did not have jurisdiction over the subject matter.

(1) the defendant in the proceeding in the foreign court did not receive

notice of the proceeding in sufficient time to enable the defendant to defend;

(2) the judgment was obtained by fraud that deprived the losing party of an

adequate opportunity to present its case;

(3) the judgment or the [cause of action] [claim for relief] on which the

judgment is based is repugnant to the public policy of this state or of the United

States;

(4) the judgment conflicts with another final and conclusive judgment;

(5) the proceeding in the foreign court was contrary to an agreement

between the parties under which the dispute in question was to be determined

otherwise than by proceedings in that foreign court;

(6) in the case of jurisdiction based only on personal service, the foreign

court was a seriously inconvenient forum for the trial of the action;

(7) the judgment was rendered in circumstances that raise substantial doubt

about the integrity of the rendering court with respect to the judgment; or

(8) the specific proceeding in the foreign court leading to the judgment was

not compatible with the requirements of due process of law.

(d) A party resisting recognition of a foreign-country judgment has the

burden of establishing that a ground for nonrecognition stated in subsection (b)

or (c) exists.

SECTION 5. PERSONAL JURISDICTION.

November 2020] MONEY JUDGMENT ENFORCEMENT 163

(a) A foreign-country judgment may not be refused recognition for lack of

personal jurisdiction if:

(1) the defendant was served with process personally in the foreign

country;

(2) the defendant voluntarily appeared in the proceeding, other than for the

purpose of protecting property seized or threatened with seizure in the

proceeding or of contesting the jurisdiction of the court over the defendant;

(3) the defendant, before the commencement of the proceeding, had agreed

to submit to the jurisdiction of the foreign court with respect to the subject matter

involved;

(4) the defendant was domiciled in the foreign country when the

proceeding was instituted or was a corporation or other form of business

organization that had its principal place of business in, or was organized under

the laws of, the foreign country;

(5) the defendant had a business office in the foreign country and the

proceeding in the foreign court involved a [cause of action] [claim for relief]

arising out of business done by the defendant through that office in the foreign

country; or

(6) the defendant operated a motor vehicle or airplane in the foreign

country and the proceeding involved a [cause of action] [claim for relief] arising

out of that operation.

(b) The list of bases for personal jurisdiction in subsection (a) is not

exclusive.

The courts of this state may recognize bases of personal jurisdiction other

than those listed in

subsection(a) as sufficient to support a foreign-country judgment.

SECTION 6. PROCEDURE FOR RECOGNITION OF FOREIGN-

COUNTRY JUDGMENT.

(a) If recognition of a foreign-country judgment is sought as an original

matter, the issue of recognition shall be raised by filing an action seeking

recognition of the foreign-country judgment.

(b) If recognition of a foreign-country judgment is sought in a pending

action, the issue of recognition may be raised by counterclaim, cross-claim, or

affirmative defense.

SECTION 7. EFFECT OF RECOGNITION OF FOREIGN-

COUNTRY JUDGMENT. If the court in a proceeding under Section 6 finds

that the foreign-country judgment is entitled to recognition under this [act] then,

to the extent that the foreign-country judgment grants or denies recovery of a

sum of money, the foreign-country judgment is:

(1) conclusive between the parties to the same extent as the judgment of a

sister state entitled to full faith and credit in this state would be conclusive; and

(2) enforceable in the same manner and to the same extent as a judgment

rendered

in this state.

164 HASTINGS LAW JOURNAL [Vol. 72:99

SECTION 8. STAY OF PROCEEDINGS PENDING APPEAL OF

FOREIGNCOUNTRY JUDGMENT. If a party establishes that an appeal

from a foreign-country judgment is pending or will be taken, the court may stay

any proceedings with regard to the foreign-country judgment until the appeal is

concluded, the time for appeal expires, or the appellant has had sufficient time

to prosecute the appeal and has failed to do so.

SECTION 9. STATUTE OF LIMITATIONS. An action to recognize a

foreign-country judgment must be commenced within the earlier of the time

during which the foreign-country judgment is effective in the foreign country or

15 years from the date that the foreign-country judgment became effective in the

foreign country.

SECTION 10. UNIFORMITY OF INTERPRETATION. In applying

and construing this uniform act, consideration must be given to the need to

promote uniformity of the law with respect to its subject matter among states

that enact it.

SECTION 11. SAVING CLAUSE. This [act] does not prevent the

recognition under principles of comity or otherwise of a foreign-country

judgment not within the scope of this [act].

SECTION 12. EFFECTIVE DATE.

[(a) This [act] takes effect … .

[(b) This [act] applies to all actions commenced on or after the effective

date of

this [act] in which the issue of recognition of a foreign-country judgment

is raised.]

SECTION 13. REPEAL. The following [acts] are repealed:

(a) Uniform Foreign Money-Judgments Recognition Act,

(b)

B. THE UNIFORM REGISTRATION OF CANADIAN MONEY JUDGMENTS ACT

(2019)

UNIFORM REGISTRATION OF

CANADIAN MONEY JUDGMENTS ACT

341

SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform

Registration of Canadian Money Judgments Act.

SECTION 2. DEFINITIONS. In this [act]:

(1) “Canada” means the sovereign nation of Canada and its provinces and

territories. “Canadian” has a corresponding meaning.

(2) “Canadian judgment” means a judgment of a court of Canada, other

than a judgment that recognizes the judgment of another foreign country.

SECTION 3. APPLICABILITY.

(a) This [act] applies to a Canadian judgment to the extent the judgment is

within the scope of [cite to Uniform Foreign-Country Money Judgments

Recognition Act Section 3], if

341

November 2020] MONEY JUDGMENT ENFORCEMENT 165

recognition of the judgment is sought to enforce the judgment.

(b) A Canadian judgment that grants both recovery of a sum of money and

other relief

may be registered under this [act], but only to the extent of the grant of

recovery of a sum of

money.

within the scope

of this [act] may be registered under this [act], but only to the extent the

judgment is with regard

to subject matter within the scope of this [act]

SECTION 4. REGISTRATION OF CANADIAN JUDGMENT.

(a) A person seeking recognition of a Canadian judgment described in

Section 3 to

enforce the judgment may register the judgment in the office of the [clerk]

of a court in which an

action for recognition of the judgment could be filed under [cite to Uniform

Foreign-Country

Money Judgments Recognition Act Section 6].

(b) A registration under subsection (a) must be executed by the person

registering the

judgment or the person’s attorney and include:

(1) a copy of the Canadian judgment authenticated [under [cite to state’s

law on authentication of a foreign-country judgment]] [in the same manner as a

copy of a foreign

judgment is authenticated in an action under [cite to Uniform Foreign-

Country Money

Judgments Recognition Act Section 6]] as an accurate copy by the court

that entered the

judgment;

(2) the name and address of the person registering the judgment;

(3) if the person registering the judgment is not the person in whose favor

the judgment was rendered, a statement describing the interest the person

registering the judgment has in the judgment which entitles the person to seek

its recognition and enforcement;

(4) the name and last-known address of the person against whom the

judgment is being registered;

(5) if the judgment is of the type described in Section 3(b) or (c), a

description of the part of the judgment being registered;

(6) the amount of the judgment or part of the judgment being registered,

identifying:

(A) the amount of interest accrued as of the date of registration on the

judgment or part of the judgment being registered, the rate of interest, the part

of the judgment to which interest applies, and the date when interest began to

accrue;

166 HASTINGS LAW JOURNAL [Vol. 72:99

(B) costs and expenses included in the judgment or part of the judgment

being registered, other than an amount awarded for attorney’s fees; and

or part of the judgment being registered;

(7) the amount, as of the date of registration, of post-judgment costs,

expenses, and attorney’s fees claimed by the person registering the judgment or

part of the judgment;

(8) the amount of the judgment or part of the judgment being registered

which has been satisfied as of the date of registration;

(9) a statement that:

(A) the judgment is final, conclusive, and enforceable under the law of

the Canadian jurisdiction in which it was rendered;

(B) the judgment or part of the judgment being registered is within the

scope of this [act]; and

registration under paragraphs (6), (7), and (8) relate to the part;

(10) if the judgment is not in English, a certified translation of the judgment

into English; and

(11) [a registration fee of $[____]] [the registration fee stated in [cite to

applicable statute or administrative rule]].

and registration fee required by subsection (b), the [clerk] shall file the

registration, assign a [registration] docket

number, and enter the Canadian judgment in the court’s [registration]

docket.

(d) A registration substantially in the following form complies with the

registration requirements under subsection (b) if the registration includes the

attachments specified in the form:

SECTION 5. EFFECT OF REGISTRATION.

(a) Subject to subsection (b), a Canadian judgment registered under Section

4 has the same effect provided in [cite to Uniform Foreign-Country Money

Judgments Recognition Act Section 7] for a judgment a court determines to be

entitled to recognition.

(b) A Canadian judgment registered under Section 4 may not be enforced

by sale or other

disposition of property, or by seizure of property or [garnishment] [trustee

process], until 31 days

after notice under Section 6 of registration is served. The court for cause

may provide for a

shorter or longer time. This subsection does not preclude use of relief

available under law of this

state other than this [act] to prevent dissipation, disposition, or removal of

property

SECTION 6. NOTICE OF REGISTRATION.

November 2020] MONEY JUDGMENT ENFORCEMENT 167

(a) A person that registers a Canadian judgment under Section 4 shall cause

notice of registration to be served on the person against whom the judgment has

been registered.

(b) Notice under this section must be served in the same manner that a

summons and

[complaint] must be served in an action seeking recognition under [cite to

Uniform Foreign Country Money Judgments Recognition Act Section 6] of a

foreign-country money judgment.

(1) the date of registration and court in which the judgment was registered;

(2) the [registration] docket number assigned to the registration;

(3) the name and address of:

(A) the person registering the judgment; and

(B) the person’s attorney, if any;

(4) a copy of the registration, including the documents required under

Section 4(b); and

(5) a statement that:

(A) the person against whom the judgment has been registered, not later

than 30 days after the date of service of notice, may [petition] the court to vacate

the registration; and

(B) the court for cause may provide for a shorter or longer time.

(d) Proof of service of notice under this section must be filed with the

[clerk] of the court

SECTION 7. [PETITION] TO VACATE REGISTRATION.

(a) Not later than 30 days after notice under Section 6 is served, the person

against whom the judgment was registered may [petition] the court to vacate the

registration. The court for cause may provide for a shorter or longer time for

filing the [petition].

(b) A [petition] under this section may assert only:

(1) a ground that could be asserted to deny recognition of the judgment

under [cite to Uniform Foreign-Country Money Judgments Recognition Act]; or

(2) a failure to comply with a requirement of this [act] for registration of

the judgment.

the registered

judgment.

(d) If the court grants a [petition] under this section, the registration is

vacated, and any act under the registration to enforce the registered judgment is

void.

(e) If the court grants a [petition] under this section on a ground under

subsection (b)(1), the court also shall render a [judgment] denying recognition

of the Canadian judgment. A [judgment] rendered under this subsection has the

same effect as a [judgment] denying recognition to a judgment on the same

ground under [cite to Uniform Foreign-Country Money Judgments Recognition

Act].

168 HASTINGS LAW JOURNAL [Vol. 72:99

SECTION 8. STAY OF ENFORCEMENT OF JUDGMENT

PENDING DETERMINATION OF [PETITION]. A person that files a

[petition] under Section 7(a) to vacate registration of a Canadian judgment may

request the court to stay enforcement of the judgment pending determination of

the [petition]. The court shall grant the stay if the person establishes a likelihood

of success on the merits with regard to a ground listed in Section 7(b) for

vacating a registration. The court may require the person to provide security in

an amount determined by the court as a condition of granting the stay

SECTION 9. RELATIONSHIP TO UNIFORM FOREIGN-

COUNTRY MONEY JUDGMENTS RECOGNITION ACT.

(a) This [act] supplements [cite to Uniform Foreign-Country Money

Judgments Recognition Act] and that [act], other than [cite to Uniform Foreign-

Country Money Judgments Recognition Act Section 6], applies to a registration

under this [act].

(b) A person may seek recognition of a Canadian judgment described in

Section 3 either:

(1) by registration under this [act]; or

(2) under [cite to Uniform Foreign-Country Money Judgments Recognition

Act

Section 6].

of the same judgment or part of a judgment described in Section 3(b) or (c) with

regard to the same person

under both this [act] and [cite to Uniform Foreign-Country Money

Judgments Recognition Act

Section 6].

(d) If the court grants a [petition] to vacate a registration solely on a ground

under Section

7(b)(2), the person seeking registration may:

(1) if the defect in the registration can be cured, file a new registration under

this

[act]; or

(2) seek recognition of the judgment under [cite to Uniform Foreign-

Country Money Judgments Recognition Act Section 6].

SECTION 10. UNIFORMITY OF APPLICATION AND

INTERPRETATION. In applying and construing this uniform act,

consideration must be given to the need to promote uniformity of the law with

respect to its subject matter among states that enact it.

SECTION 11. TRANSITIONAL PROVISION. This [act] applies to the

registration of a Canadian judgment entered in a proceeding that is commenced

in Canada on or after [the effective date of this [act]].

SECTION 12. EFFECTIVE DATE. This [act] takes effect ….