Faith and Scepticism in Private International Law: Trust, Governance, Politics, and Foreign Judgments

Abstract

Faith and Scepticism in Private International Law: Trust, Governance, Politics, and Foreign Judgments Christopher Whytock* Abstract In both the European Union (EU) and the United States (US), the law governing the enforcement of foreign judg- ments is evolving, but in different directions. EU law, espe- cially after the elimination of exequatur by the 2012 ’Recast’ of the Brussels I Regulation, increasingly facilitates enforce- ment in member states of judgments of other member states’ courts, reflecting growing faith in a multilateral pri- vate international law approach to foreign judgments. In US law, on the other hand, increasingly widespread adoption of state legislation based on the 2005 Uniform Foreign- Country Money Judgments Recognition Act (2005 Act), which adds new case-specific grounds for refusing enforce- ment, suggests growing scepticism. In this essay, I explore possible reasons for these diverging trends. I begin with the most obvious explanation: the Brussels framework governs the effect of internal EU member state judgments within the EU, whereas the 2005 Act governs the effect of external foreign country judgments within the US. One would expect more mutual trust – and thus more faith in foreign judgment enforcement – internally than externally. But I argue that this mutual trust explanation is only partially sat- isfactory. I therefore sketch out two other possible explana- tions. One is that the different trends in EU and US law are a result of an emphasis on ’governance values’ in EU law and an emphasis on ’rights values’ in US law. Another explanation – and perhaps the most fundamental one – is that these trends are ultimately traceable to politics. Keywords: private international law, conflict of laws, foreign judgments, European Union, United States 1 Introduction ‘It is time to stop pretending that Europeans and Americans share a common view of the world ....’ 1 So Christopher Whytock is Professor of Law and Political Science at the University of California, Irvine School of Law. For helpful comments on an earlier draft of this essay, I thank Bill Dodge, Deborah Hensler, Stefaan Voet, participants at the Bay Area Procedural Forum at Univer- sity of California, Hastings College of Law, and two anonymous review- ers. R. Kagan, Of Paradise and Power: America and Europe in the New World Order (2003), at 3. Christopher Whytock begins Robert Kagan’s 2003 book, Of Paradise and Pow- er: America and Europe in the New World Order. Writ- ing about differences between European and American strategic culture, Kagan argued that Europe favors mul- tilateral solutions to global problems, while the Ameri- can impulse is unilateral. 2 American exceptionalism ‘may be welcomed, ridiculed, or lamented. But it should not be doubted.’ 3 Recent developments suggest that similar differences may exist in European and American approaches to one of the main branches of private international law: the enforcement of foreign country judgments. In both the European Union (EU) and the United States (US), this area of law is evolving – but in different directions. Within the EU, the law increasingly facilitates the enforcement in member states of the judgments of other member states, reflecting a growing faith in a multilater- al private international law approach to foreign judg- ments. Most notably, the 2012 ‘Recast’ of the Brussels I Regulation (Brussels I Recast) promises to streamline enforcement by eliminating the declaration of enforcea- bility (exequatur) as a requirement for the enforcement of EU member state judgments in civil and commercial matters. 4 In US law, on the other hand, there is evi- dence of growing scepticism and insistence on more searching unilateral US review of foreign country judg- ments. In particular, US states are increasingly adopting legislation based on the 2005 Uniform Foreign-Country Money Judgments Recognition Act (2005 Act), which contains two new grounds for refusing enforcement: one that allows non-enforcement if ‘the judgment was ren- dered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment’ and the other if ‘the specific proceed- ing in the foreign court leading to the judgment was not compatible with the requirements of due process of law.’ 5 In this essay I offer some comparative reflections on these trends. I first develop the claim that EU law Id., at 55. Id., at 88. See Article 39 of Regulation No. 1215/2012 on jurisdiction and the rec- ognition and enforcement of judgments in civil and commercial matters (recast), OJ 2012, L 351/1 (hereinafter Brussels I Recast). The Brussels I Recast will apply beginning in January 2015. Id., Article 66(1). See Section 4(c) of the Uniform Foreign-Country Money Judgments Recognition Act (hereinafter 2005 Act). ELR November 2014 | No. 3