Proskauer Rose International Practice Guide Proskauer Rose LLP | Proskauer.com
      Proskauer on International Litigation and Dispute Resolution:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
 ABOUT US  |  TRENDS  |  NEWS & EVENTS  |  CONTACT  |  AUTHORS
Text Size:  A  A  A
Print Print
  1. As a general rule, comity may be granted where “it is shown that the foreign court is a court of competent jurisdiction, and that the laws and public policy of the forum state and the rights of its residents will not be violated.” Cunard S.S. Co. v. Salen Reefer Serv. AB, 773 F.2d 452, 457 (2d Cir. 1985).
  2. The specific factors that are relevant to the comity analysis are:
    1. Whether the foreign court was one of competent jurisdiction;
    2. Whether the defendant had an opportunity to be heard at the foreign tribunal;
    3. Whether there were adequate procedural safeguards to protect the defendant in the underlying proceeding equivalent to or compatible with the notions of Due Process under U.S. law; and
    4. Whether the judgment in question offends U.S. public policy or the rights of U.S. residents or citizens.
      1. There is often a tension between the notion that comity only comes into play when there is a conflict and then the question of how to resolve that conflict – i.e., when adherence to the foreign law would be abhorrent to or violate fundamental principles of U.S. fairness, due process, or public policy, courts may refuse to grant comity to the foreign judgment. Cunard, 773 F.2d at 457; In re Treco, 240 F.3d 148, 157-8 (2d Cir. 2001).
      2. Comity has its greatest force (and, from U.S. Supreme Court jurisprudence, perhaps its only applicability) when a litigant can show that U.S. law compels it to do something that is actually prohibited by foreign law, rather than just that two sovereign regimes will be dealing with the same issue or approach the matter in different ways. “International comity comes into play only when there is a true conflict between American law and that of a foreign jurisdiction.” In re Maxwell Commc’n Corp., 93 F.3d at 1049 (citing Hartford Fire Ins. Co. v. Cal., 509 U.S. 764, 798 (1993) (emphasis supplied).
      3. “No conflict exists... ‘where a person subject to regulation by two states can comply with the laws of both.’” Hartford Fire Ins. Co., 509 U.S. at 799 (citing Restatement(Third) Foreign Relations Law Section 403 (1987)).
      4. U.S. Free Speech Issues: A particularly difficult issue is whether to enforce non-U.S. judgments that may impinge U.S. concepts of free speech (and similar fundamental constitutional rights). The Second Circuit Court of Appeals in Sarl Louis Peraud Int’l v. Viewfinder, Inc., 489 F.3d 474 (2d Cir. 2007), vacated a judgment of the federal District Court in New York, which had refused to accord recognition to a French judgment on the ground that it was offensive to US free speech policy. The Circuit Court remanded the case to the District Court. If proceedings continue in the District Court, significant issues of public policy and US First Amendment bars to recognition of foreign judgments will be litigated.
  3. Practice Tip: Traditionally, New York has been a generous forum in which to enforce judgments for money damages rendered by foreign courts. In 1970, New York adopted the Uniform Foreign Money-Judgments Recognition Act (“UFMJRA”), which codified the principles of comity as respects money judgments in the form of CPLR Article 53. Thus, since 1970, the recognition of foreign country money judgments has been governed by the statutory requirements of CPLR §§ 5302-5304 within the larger universe of common-law comity. (Non-money judgments continue to be governed exclusively by the common law).
    1. Article 53 provides that “a foreign country judgment . . . is conclusive between the parties to the extent that it grants or denies recovery of a sum of money.” It applies to “any foreign country judgment which is final, conclusive and enforceable where rendered, even though an appeal therefrom is pending or it is subject to appeal.”
    2. Generally, the policy of New York is that “New York State courts must recognize the judgments rendered in a foreign country under the doctrine of comity, absent some showing of fraud in the procurement of the judgment or that recognition of the judgment would do violence to some strong public policy of this State.” Fickling v. Fickling, 210 A.D.2d 223, 223-24 (N.Y. App. Div. 2d Dep’t 1994).
    3. The New York Court of Appeals has made clear that “a departure from settled comity principles can be justified only as a rare exception.” Gotlib v. Ratsutsky, 83 N.Y.2d 696, 699 (1994).

< Previous Section | Next Section >