Ch. 6 The Role of Comity

1. International litigation, especially complex litigation, typically involves cases pending in more than one jurisdiction. A key question in such cases is how the courts in one jurisdiction will react to decisions and judgments made by a court in another jurisdiction. (For ease, we use the term “foreign” to refer to courts or tribunals outside of the U.S., and we refer to the terms judgment, order, or decree collectively as “judgment.”)
2. Within the U.S., under the “full faith and credit” provision of the U.S. Constitution, the judgments of any domestic state or federal court are automatically enforceable in any other domestic state or federal court.
3. The enforcement of a foreign judgment rendered by a foreign court, however, is not subject to the constitutional “full faith and credit” provision. Although U.S. courts are predisposed to recognize foreign judgments, recognition is based on principles of comity, rather than constitution. Hilton v. Guyot 159 U.S. 113, (1895). Typically, analysis of comity begins with the definition proffered by Justice Gray:
   • “‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.” Hilton, 163-64, quoted in In re Maxwell Commc’n Corp., 93 F.3d 1036, 1046 (2d Cir. 1996).
4. The doctrine of international comity provides that, in certain circumstances, a U.S. court will (1) recognize or provide res judicata effect to foreign judgments and/or (2) dismiss a case before it in deference to a parallel action pending in a foreign jurisdiction. See Royal & Sun Alliance Ins. Co. of Canada v. Century Int’l Arms, Inc., 466 F.3d 88, 92 (2d Cir. 2006).
5. International comity is “concerned with maintaining amicable working relationships between nations, a shorthand for good neighbourliness, common courtesy and mutual respect between those who labour in adjoining judicial vineyards.” JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. 2005) (internal quotations omitted).
6. With respect to foreign money judgments, the general principles of comity have been codified in the U.S. as the Uniform Foreign Money Judgments Recognition Act (“UFMJRA”), which has been adopted by the majority of U.S. states¹. "Foreign money judgments" under UFMJRA means any judgment granting or denying recovery of a sum of money rendered in a jurisdiction outside the U.S. and its territories.
7. U.S. Federal courts will recognize foreign judgments based on the version of the UFMJRA adopted in the state which they sit.
   1. The UFMJRA applies to any judgment for payment of a sum of money (other than a judgment for taxes, a fine or other penalty, or a judgment for matrimonial support) that is final, conclusive and enforceable where rendered.

      Practice Tip: The burden is on the party seeking recognition to establish that a foreign judgment meets this criteria. Additionally, the UFMJRA sets forth two bases which mandate that such judgment not be recognized, and several bases under which, in the court’s discretion, the judgment need not be recognized. As a practical point, the plaintiff seeking recognition generally bears the burden of establishing that the mandatory bases are not applicable, and the defendant resisting recognition bears the burden on the discretionary grounds.

   2. While the UFMJRA only applies to money judgments, typically the act of recognizing and enforcing foreign judgments is much broader and extends to non-money judgments as well.

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1 The states which have adopted some form of the UFMJRA are: Alaska, California, Colorado, Connecticut, Delaware, D.C., Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, the Virgin Islands, Virginia and Washington.