4 Unjust Legal Systems and the Enforcement of Foreign Judgments

Abstract

This chapter first addresses the capacity issue, exploring the difficulty of a U.S. court launching an inquiry into the nature of a foreign judiciary in the context of an adversarial proceeding. It then examines the under-inclusiveness issue, namely the possibility that courts in good systems do bad things. The chapter reviews how U.S. courts have handled challenges to the quality of foreign legal systems under the systemic standard. Even when doctrine and statutes have directed these courts to look at the quality of the system, they have concentrated on how the court in the prior proceeding behaved. These receiving courts have separated local conceptions of judicial propriety from the standards to which they hold foreign litigation. Finally, the chapter draws on judicial practice in an analogous but distinct area, namely forum non conveniens dismissals, to illuminate what U.S. courts should focus on when they review a prior foreign court proceeding. Keywords: foreign judgments; foreign legal systems; judicial capacity; systemic standard; U.S. court