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RECOGNITION AND ENFORCEMENT OF 

FOREIGN JUDGMENTS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS, COMMERCIAL 

AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

NOVEMBER 15, 2011 

Serial No. 112–109 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

[Vacant] 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW

HOWARD COBLE, North Carolina, Chairman 

TREY GOWDY, South Carolina, Vice-Chairman 

ELTON GALLEGLY, California 

TRENT FRANKS, Arizona 

DENNIS ROSS, Florida 

BEN QUAYLE, Arizona 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

MELVIN L. WATT, North Carolina 

[Vacant] 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 

(III) 

C O N T E N T S 

NOVEMBER 15, 2011 

Page 

OPENING STATEMENT 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Commercial 

and Administrative Law ...................................................................................... 1 

WITNESSES 

Linda J. Silberman, Martin Lipton Professor of Law, New York University 

School of Law 

Oral Testimony ..................................................................................................... 3 

Prepared Statement ............................................................................................. 6 

H. Kathy Patchel, Uniform Law Commissioner, Indianapolis, IN 

Oral Testimony ..................................................................................................... 46 

Prepared Statement ............................................................................................. 48 

John B. Bellinger, III, Partner, Arnold & Porter, LLP, on behalf of the 

U.S. Chamber of Commerce and the U.S. Chamber Institute for Legal 

Reform 

Oral Testimony ..................................................................................................... 55 

Prepared Statement ............................................................................................. 58 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on Courts, Commercial and Administrative Law .............................................. 73 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 74 

Response to Post-Hearing Questions from Linda J. Silberman, Martin Lipton 

Professor of Law, New York University School of Law .................................... 75 

Response to Post-Hearing Questions from H. Kathy Patchel, Uniform Law 

Commissioner, Indianapolis, IN .......................................................................... 83 

Response to Post-Hearing Questions from John B. Bellinger, III, Partner, 

Arnold & Porter, LLP, on behalf of the U.S. Chamber of Commerce and 

the U.S. Chamber Institute for Legal Reform ................................................... 87 

Letter from Louis B. Kimmelman, Chair, the New York City Bar ..................... 110 

Letter from Forum Nobis PLLC ............................................................................. 113 

Letter from John B. Bellinger, III, Arnold & Arnold LLP ................................... 175 

Letter from William E. Thomson, Gibson Dunn ................................................... 178 

(1) 

RECOGNITION AND ENFORCEMENT OF 

FOREIGN JUDGMENTS 

TUESDAY, NOVEMBER 15, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, 

COMMERCIAL AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 1:30 p.m., in room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Gowdy, Cohen, and Watt. 

Staff Present: (Majority) Daniel Flores, Subcommittee Chief 

Counsel; Blaine Merritt, Counsel; Johnny Mautz, Counsel; Ashley 

Lewis, Clerk; and (Minority) James Park, Subcommittee Chief 

Counsel. 

Mr. COBLE. The Subcommittee will come to order. 

I don’t believe in penalizing people who get here in a timely way, 

and you all are here in a timely way, so we will proceed. 

I think there is a scheduled vote on or about 2:30, so we will try 

to move along and not keep you all here excessively. It is good to 

have you with us, each of the three witnesses. 

This hearing is an outgrowth of the libel tourism project that resulted in passage of the SPEECH Act in the 111th Congress. The 

SPEECH Act addresses the issue of so-called libel tourism lawsuits 

and how they may be enforced against American citizens. The 

Ranking Member, Mr. Cohen, will be here shortly; and he was actively involved in that legislation as well. 

The recognition and enforcement of libel tourism judgment is a 

subset of a larger concern, namely how are most judgments rendered by foreign courts recognized and enforced in the United 

States. The purpose of the hearing is to provide general background on the subject matter so Members can determine whether 

Congress should create a Federal statute to address how foreign 

judgments are treated in our country. This will dovetail into an 

analysis on the American Law Institute’s 2006 report on the subject, which included a proposed Federal statute. 

The recognition and enforcement of foreign judgments in the 

United States is governed by State law and there is no Federal 

statute on the subject. The United States is not a party to any 

international agreement that addresses the topic, though it has 

participated in multilateral negotiations in the 1900’s and early 

2 

2000’s that led to the development of a choice of courts treaty that 

has been signed but not ratified. 

Aside from uniform model acts, many States have adopted in 

whole or in part State law regarding the recognition and enforcement of foreign judgments is a function of comity, the principle 

that courts of one State or jurisdiction will give effect to laws and 

judicial decisions of another State or jurisdiction, not as a matter 

of obligation but out of deference and mutual respect. 

In addition, States frequently revoked the restatements of lawful 

authority when deciding foreign treatment cases. The two most 

cited texts are the restatement third of foreign relations law and 

the restatement second conflict of laws. 

The Subcommittee wants to explore the extent to which State 

law is doing a good job of recognizing and enforcing foreign judgment in a way that is equitable to litigants. How do the individual 

States vary in their treatment on this jurisprudence? Does this variation result in forum shopping? 

Should the Federal Government preempt the States and create 

an exclusive and uniform way of recognizing and enforcing foreign 

judgments? These are some of the issues we want to explore this 

afternoon. 

I will conclude with this final point. The hearing is not about 

sticking a square peg in a round hole. We don’t want to write and 

process a bill if this would create havoc. The hearing is an opportunity for the Members to learn more about the subject matter so 

that we can learn and make more informed decisions about proceeding or not proceeding at a later time. 

Again, I thank the witnesses for your being here today, and I recognize the—well, the only Member we have is Mr. Gowdy from the 

land of the palmetto. Do you have an opening statement to make? 

Mr. GOWDY. No, sir, Mr. Chairman. 

The gentleman from North Carolina has since joined us as well, 

Mr. Chairman. 

Mr. COBLE. I recognize Mr. Watt, the distinguished gentleman 

from North Carolina. Do you have a statement to make? 

Mr. WATT. No. 

Mr. COBLE. No statement, so we will proceed. 

We have a very distinguished panel of witnesses today. Each of 

the witness’s written statements will be entered into the record in 

its entirety. 

I ask that each witness summarize his or her testimony in 5 

minutes or less, if possible. You will have—the red light will illuminate that your 5 minutes are expired. Now you won’t be keel 

hauled if you violate it, but we would like to comply with the 5- 

minute rule as do we here and particularly since there is a scheduled vote that is probably imminent. When the red light becomes 

amber, that’s a 1 minute warning that the ice on which you are 

skating is getting thin. When the light switches from green to yellow, that will be your note. 

Without objection, all Members have 5 legislative days within 

which to submit materials for the record. 

Our first witness is Professor Linda Silberman, the Martin 

Lipton Professor of Law at the New York University School of Law. 

She is the first tenured woman full professor at the school where 

3 

she teaches conflict of laws, civil procedure, comparative civil procedure, transitional litigation, and international commercial arbitration. 

Prior to joining the NYU faculty, Professor Silberman practiced 

law in Chicago, worked at a professor in residence at the Department of Justice, and served as a member of numerous State Department delegations to The Hague Conference on Private International Law. She is the author of case books and numerous law 

review articles of great relevance to our hearing. She was a co-reporter of the 2006 American Law Institute Project on the Recognition and Enforcement of Foreign Judgments. Professor Silberman 

received her undergraduate and law degrees from the University of 

Michigan, and she was a Fulbright scholar as well in London. 

Our second witness is Mr. John Bellinger, partner at the law 

firm of Arnold & Porter in Washington, D.C. 

Earlier in his career, Mr. Bellinger served in a number of senior 

positions of the Federal Government, including as legal advisor to 

the Department of State, the legal advisor to the National Security 

Council and the Council for National Security Matters in the 

Criminal Division at the Department of Justice. He was also an 

Adjunct Senior Fellow in International and Security Law at the 

Council of Foreign Relations. Mr. Bellinger earned his undergraduate degree from Princeton, his M.A. in Foreign Affairs from 

the University of Virginia, and his J.D. From the Harvard School 

of Law, where he was the editor of the Harvard International Law 

Journal. 

Our final witness is Ms. Kathy Patchel, an Indiana Commissioner of the National Conference of Commissioners of Uniform 

State Law, also known as Uniform Law Commission. She will be 

testifying on behalf of that organization. 

Ms. Patchel is also an emeritus professor at the Indiana School 

of Law in Indianapolis. Through the years, she has taught legislation, constitutional law, commercial paper, remedies, and other 

subjects. In addition, Professor Patchel has taught at Northern Illinois University and the University of Mississippi, clerked for the 

Honorable Frank M. Johnson, Jr., of the 11th Circuit and practiced 

law in Atlanta. 

She earned her B.A. Degree in English from Huntington College, 

a J.D. From my alma mater, University of North Carolina—and 

Mrs. Watts spent some time at Chapel Hill as well, if my memory 

serves correctly. As I said, from Huntington College and then the 

J.D. From the University of North Carolina Chapel Hill, her L.L.M. 

From Yale. Professor Patchel has published widely and served on 

a number of Uniform Law Commission committees. 

Welcome to each of you. The witnesses will be allowed, as I said, 

5 minutes; and we will recognize Ms. Silberman to begin with. 

TESTIMONY OF LINDA J. SILBERMAN, MARTIN LIPTON 

PROFESSOR OF LAW, NEW YORK UNIVERSITY SCHOOL OF LAW 

Ms. SILBERMAN. Thank you, Chairman Coble. I am delighted to 

have this invitation and delighted to find the Subcommittee interested in considering Federal legislation in this area. 

I testified before this Subcommittee when it was considering Federal legislation to deal with concerns over the recognition and enVerDate Aug 31 2005 17:12 Jul 25, 2012 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\111511\71239.000 HJUD1 PsN: 71239
4 

forcement of foreign defamation judgments which eventually resulted in the SPEECH Act, and I suggested then that perhaps 

more comprehensive legislation might be in order at a later time. 

So to summarize points made more extensively in my written testimony, I think the need for Federal legislation is more important 

now than ever before. 

A comprehensive Federal statute will have an impact in two 

areas. First, it will provide a Federal uniform standard for recognition and enforcement in foreign judgments in the United States; 

and, second, it has the potential to enhance recognition and enforcement of U.S. judgments in other countries. 

Let me first address the point about recognition practice in the 

United States. As you know and as you have said, recognition and 

enforcement is presently a matter of State law, although there is 

a curious history about that which I detail in my written testimony. Notwithstanding the existence of two uniform State laws, 

there is still no uniformity of practice. And that is because, first, 

not all States have adopted the Uniform Acts, which differ in various ways themselves; second, the adoptions, when they occurred, 

are not necessarily uniform; and, three, interpretations by State 

courts of those Acts are not necessarily uniform. 

Just to give one significant example, some States and even some 

that have the Uniform Act have added a requirement of reciprocity. 

Reciprocity is the requirement that if a foreign country judgment 

is to be recognized and enforced in the United States, the foreign 

country must also respect a United States judgment in similar circumstance. Most States do not have a reciprocity requirement. 

Some do. 

So, in short, the Uniform Act is not uniform; and only a Federal 

statute can ultimately achieve the maximum level of uniformity. 

Now you might wonder whether uniformity is actually important 

in this area, and my answer is yes for several reasons. A judgment 

can be enforceable in New York or Illinois but not in Texas or 

Georgia. In the absence of uniformity, both the judgment creditor 

in an enforcement proceeding or the judgment debtor in a declaratory judgment proceeding for nonenforcement can forum shop for a 

State law favorable to its position. 

Moreover, at the earlier stage of deciding whether to commence 

litigation abroad—because you are trying to decide whether a judgment abroad will be enforced—a prediction is difficult because a potential litigant may not know in which State in the United States 

eventual enforcement action will take place. And, perhaps even 

more significantly, uniformity is tied to the need for Federal legislation because this issue of recognition and enforcement involves 

relations between the United States and foreign governments. 

The Supreme Court itself has commented on aspects of the reciprocity requirement in other contexts as saying States are improperly intruding into the field of foreign affairs. But whether reciprocity is or is not to be required as a precondition of foreign judgment lies with the Congress. 

Another example of the impact on foreign relations relates to one 

of the traditional defenses that can be raised and that is the failure 

to have a system of impartial tribunals or to have procedures that 

are compatible with due process of law. And although it is accurate 

5 

to say that all States would probably recognize such a defense, 

each State is entitled to make that assessment according to its own 

interpretation. Questions about the quality and fairness of a foreign judicial system would seem to easily fall within foreign relations concerns of the United States, and so there should be uniform 

Federal criteria. 

Potential corruption in a judicial system is another issue that 

has arisen. Again, that is a decision that should be decided by Congress; and the criteria about making that assessment should also 

be determined by Congress. State and Federal courts can interpret 

those provisions, but the ultimate guidance should be that of the 

Supreme Court. In this way, a uniform level of the proper protection of American interests can be established within a framework 

of recognition practice that encourages and sustains international 

global commerce. I recognize that there is also an important role 

for State policy, and where the issues pertain to State rather than 

Federal policy, State policy can apply in the context of a Federal 

statute. 

There are other aspects of Federal judgment recognition where 

the patchwork of State laws I think also leads to uncertainty and 

predictability. The constitutional issue I think is quite clear. The 

concern about the recognition of foreign judgments abroad is also 

enhanced by a uniform statute. 

Recognition and enforcement of foreign judgments as well as 

nonrecognition and nonenforcement is and ought to be a matter of 

national concern. We are in an age of globalization and international commerce, and the relevant standards and criteria should 

be in the hands of the Federal Government. 

I thank you for this opportunity. 

[The prepared statement of Ms. Silberman follows:] 

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Mr. COBLE. Thank you, Professor Silberman. 

Professor Patchel, you are recognized. 

TESTIMONY OF H. KATHY PATCHEL, UNIFORM LAW 

COMMISSIONER, INDIANAPOLIS, IN 

Ms. PATCHEL. Thank you, Chairman Coble and the Committee, 

for inviting me to testify on behalf of the National Conference of 

Commissioners on Uniform State Laws. 

My testimony focuses on two issues that I believe the Committee 

needs to consider. They are raised by Professor Silberman in her 

testimony. 

The first is whether there are specific problems in the legal system as it exists under State law which would justify federalizing 

this area and disrupting the 70 years of State governance of recognition and enforcement. 

The law in this area in my experience is well settled, it is familiar to courts and to practitioners, and it has been effective. The 

United States is recognized as one of the most cooperative nations 

in the recognition and enforcement of judgments and yet the legal 

regime gives courts the ability, when they need to, to deny recognition to a judgment that should not be recognized. 

My experience in this area is based in large part in serving as 

a reporter for the 2005 revision of the Conference’s Recognition Act. 

In preparing to be a reporter for that Act, I did some research. I 

looked at a large number of cases. I also looked at all of the nonuniform amendments under the 1962 Act, which is the primary 

source of law in this area. 

I found, somewhat to my own surprise, that there is an amazing 

degree of uniformity here. I believe there is as much uniformity of 

interpretation in the courts as there would be if there were only 

one statute being interpreted by courts, rather than a number of 

State uniform laws. This doesn’t mean that there is complete uniformity of interpretation. You cannot have that with any statute. 

But there is a high degree. 

Professor Silberman mentions reciprocity. That is, I think, the 

most significant area in which I found that there was variance. It 

was actually statutory in my research. There were eight of the 32 

States that had adopted the 1962 Act which had amended it to require reciprocity. North Carolina was actually one of those. But we 

have found that the 2005 Act is being adopted in those States to 

update their law that the States are dropping that reciprocity requirement. In fact, North Carolina recently adopted our law; and 

they adopted it without that reciprocity requirement. So I believe 

that that particular nonuniformity is going away as States are 

adopting the 2005 Act. 

I think that the Subcommittee needs to identify specific problems 

if it is going to overturn this law in favor of federalization in this 

area in favor of a new Federal law which then will require new interpretation. And necessarily whenever you have a subject that has 

shifted from the State to the Federal domain, you are going to have 

a period when you are having to reinterpret any law. And I think 

that there need to be problems with the current law, problems that 

implicate an important Federal interest in order to justify that sort 

of disruption. 

47 

Mr. COBLE. You may continue. 

Ms. PATCHEL. I believe that simply the fact that a judgment is 

issued by a foreign court which gives this private right isn’t a sufficient Federal interest here. I think the Federal courts have implicitly recognized that when they have said that it is not enough of 

a Federal interest to give rise to Federal question jurisdiction. 

There needs to be some more specific interest identified, as the 

Subcommittee identified when it passed the SPEECH Act. There, 

even though the uniform law was following what the SPEECH Act 

did, it was striking down these libel decisions under the public policy exception. This Committee and Congress felt that a stronger 

statement, a Federal statement needed to be made; and I think 

that there would need to be an identification of particular other 

issues that are problematic that would cause that. 

Secondly, I think that the Committee needs to consider the costs 

and weigh those. Federal courts are available in their diversity jurisdiction under State law, but if this area is federalized then they 

will become the primary adjudicators in this area, and they will 

have Federal question jurisdiction. That means that necessarily 

their case load will increase vis—vis the States; and it also means 

that their enforcement officials, the U.S. Marshals, will be burdened with these additional enforcement actions. 

Finally, with regard to those enforcement actions, I would like to 

point out, which I don’t think is often noted, the relationship between recognition and enforcement. Recognition is a precondition to 

enforcement, to being able to get your monies. And the procedures 

for getting your money are State procedures. They differ from State 

to State, and they are very local in nature. And so if the area of 

recognition is federalized it takes away the State’s ability to control 

the prerequisite to invoking these local State procedures. 

[The prepared statement of Ms. Patchel follows:] 

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Mr. COBLE. Thank you, professor. 

We have a vote. I am going to recognize the distinguished gentleman from North Carolina for his questioning. We will then go 

vote and return after the vote. 

Mr. WATT. Mr. Bellinger. 

Mr. COBLE. Oh, I stand corrected. Mr. Bellinger, let me get to 

you now, and then we will go vote. I apologize, sir. 


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TESTIMONY OF JOHN B. BELLINGER, III, PARTNER, ARNOLD & 

PORTER, LLP, ON BEHALF OF THE U.S. CHAMBER OF COMMERCE AND THE U.S. CHAMBER INSTITUTE FOR LEGAL REFORM 

Mr. BELLINGER. Thanks, Mr. Chairman; and thank you and Mr. 

Gowdy and Mr. Watt for having me here today. I am testifying 

today on behalf of the U.S. Chamber of Commerce and the U.S. 

Chamber Institute for Legal Reform. 

As you correctly noted, I was the legal advisor for the Department of State during the Bush administration under Secretary of 

State Condoleezza Rice. In fact, I spent my very last day in office, 

almost my last minutes in office, dealing with these very issues 

when I signed The Hague Choice of Court Treaty in The Hague on 

January 19th, 2009. I will come back to that in a moment. 

I want to make six very brief points today, and I will stay under 

5 minutes because I don’t want to be keelhauled by the Chairman. 

First, and most important, the business community supports recognition and enforcement in U.S. courts of appropriate foreign 

judgments. Recognition and respect for foreign judgments serves 

our interests. When U.S. Courts recognize and enforce foreign judgments in our country, foreign courts are more likely to recognize 

and enforce U.S. judgments out of reciprocity. 

But, second, the business community is concerned, however, 

about the potential abuse of the U.S. system for recognition of foreign judgments rendered by politicized or corrupt foreign judicial 

systems; and in recent years there have been some controversial 

judgments coming out of courts in Latin America against U.S. companies that plaintiffs have sought to enforce in U.S. courts. 

In one case, plaintiffs sought to enforce a $96 million judgment 

in Nicaragua rendered against the Dole Food Company and Dow 

Chemical under a special law that had been specifically designed 

to discriminate against U.S. companies. 

And then earlier this year Ecuadorian plaintiffs obtained an $18 

billion judgment against Chevron for alleged environmental harm 

in Ecuador based on another special law designed specifically to 

limit Chevron’s ability to defend the suits. 

Now, so far, U.S. courts have refused to recognize both the Nicaraguan and the Ecuadorian judgments, but these cases are being 

very closely watched by the U.S. business community as the possible tip of a dangerous iceberg. 

Now, last month, the U.S. Chamber Institute for Legal Reform 

published a report which I would commend to the Committee’s attention on recognition of abusive foreign judgments like this. And 

the report describes the recent rise in global forum shopping and 

explains how U.S. courts must ensure that foreign judgments comport with U.S. legal requirements and the basic norms of due process before they are enforced in the United States. 

Third, and touching on the points that my colleagues have mentioned, the business community is concerned about the patchwork 

of State laws that currently govern recognition and enforcement of 

foreign judgments—— 

Mr. COBLE. Mr. Bellinger, I am going to ask you to suspend. 

Mr. BELLINGER. Certainly. 

56 

Mr. COBLE. Because the second vote has already been called. We 

will probably be gone from between 35 to 40 minutes. So you all 

rest easy, and I apologize for this problem, but the problem appears 

to be universal and consistent. We will stand in recess. 

[Recess.] 

Mr. COBLE. I apologize to you, folks. 

Mr. Bellinger, I particularly owe you an apology. Not only did I 

fail to recognize you in order, I may have muzzled you in the middle of your testimony. So if you will resume, we will proceed. 

Mr. BELLINGER. Mr. Chairman, it is better to be muzzled than 

keelhauled. 

Mr. COBLE. You are right about that. 

Mr. BELLINGER. Thank you very much. 

I was just making several points on the recognition and enforcement of foreign judgments, and I had made the point that the business community generally supports recognition and enforcement of 

appropriate foreign judgments but has a concern about some recent 

cases that may be the beginning of a trend of efforts to enforce inappropriate foreign judgments. And just resuming my quick points, 

we are also concerned about the current system of State laws, 

which, as my colleagues have said, currently govern enforcement 

and recognition of foreign judgments in the United States. 

As you know, 17 States are currently governed by the 1962 Uniform Foreign Money Judgments Act; another 17 have adopted the 

2005 revised Recognition Act, which has slightly different standards from the 1962 Act; and then the remaining States have no 

statutory provisions at all and instead rely on common law doctrines. So this is a patchwork of State laws, which creates a problem for the U.S. business community. 

This lack of uniformity amongst the State laws jeopardizes the 

procedural rights of judgment debtors; it encourages forum shopping, both here in the United States and abroad; and it enables 

plaintiffs to circumvent rules that would prevent recovery under 

U.S. law. So that is my third point. 

And then, fourth, turning to my colleague, Professor Silberman 

and the American Law Institute’s proposal, they have proposed a 

very useful Federal statute that would address some of the problems in this patchwork of State laws. 

A Federal statute would establish a uniform standard for recognition and enforcement of foreign money judgments. In my view, 

however, the ALI statute could be significantly improved in some 

ways. And we need to bear in mind that it was put together 5 or 

6 years ago, and there have been some significant changes in international litigation since that time that I think the ALI might take 

into account. 

So, for example, the proposal could clarify the public policy exception for nonrecognition. The U.S. business community is concerned that plaintiffs may try to circumvent U.S. laws by obtaining 

judgments in politicized forums abroad and then seek enforcement 

of those judgments here. Courts need to have clearer authority to 

reject judgments that are based on foreign suits that would not 

prevail if brought originally in the United States. 

Fifth, the 2005 Hague Convention on Choice of Courts Agreements, which as I mentioned I signed in The Hague on my last day 

57 

in office, is an important treaty that is likely to be transmitted by 

the Obama administration to the Senate for advice and consent in 

the near future. The convention provides that a judgment by a 

court that has been chosen by the parties in a commercial agreement must be recognized and enforced in the courts of countries 

that are parties to the convention. In order for the Senate to approve the convention, legislation by both Houses of Congress will 

be needed to ensure that the United States is in a position to enforce judgments reached under the terms of the convention. So if 

this treaty is transmitted to the Senate, both the House and the 

Senate will have an opportunity to consider Federal legislation in 

any case. 

And then sixth and my last point, although greater uniformity in 

the recognition and enforcement of foreign judgments would be desirable in my view, the Committee should consider whether the law 

should be fully federalized or whether some discretion should be 

left to the States. My personal view is that a purely Federal statute 

would have certain advantages. 

So, with that, I will conclude my remarks and am happy to take 

your questions. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Bellinger follows:] 

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Mr. COBLE. Thank you, Mr. Bellinger. 

Thanks to all of you. 

I believe it was Professor Patchel, I believe, mentioned the uniformity, did you not, Professor? 

Ms. PATCHEL. Yes. 

Mr. COBLE. And I want to go down that path, Mr. Bellinger, with 

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eral States when it comes to enforcing and recognizing foreign 

judgments, A? And, B, is there a great deal, in your opinion, of 

forum shopping that occurs in this area of jurisprudence? 

Mr. BELLINGER. Thank you, Mr. Chairman. 

There really is not uniformity at all amongst the State laws. 

There are some States that have adopted the 1962 Recognition Act, 

some that have adopted the 2005 Recognition Act, and then some 

States that don’t have a statutory framework at all. 

As Professor Patchel said, there has tended to be greater uniformity in the way the courts have interpreted these statutes, but 

still the statutes and the common law framework are significantly 

different, and it does create a tremendous incentive for a judgment 

creditor to pick the State where it is going to be the easiest to enforce a judgment. And so it does encourage forum shopping. The 

business community I think would like to see greater uniformity in 

the recognition and enforcement of foreign judgments, and that 

would have sufficient protections for judgment debtors. 

Mr. COBLE. Thank you, Mr. Bellinger. 

Professor Patchel, what is the best argument you can submit in 

defense of the status quo to a foreign national trying to enforce a 

judgment in the United States? 

Ms. PATCHEL. Well, the best argument for the status quo is that 

it has been around for 70 years. And so the people who are going 

to be enforcing those judgments on behalf of foreign nationals are 

familiar with it, and they know what they need to do under it. 

If we federalize the area, you are going to have a brand new Federal statute which will have to be interpreted by the court in its 

own light. If it is interpreted consistently with the current State 

law, then I suppose it will be familiar. But if it isn’t changing the 

current State law, then I don’t see the argument there for federalizing. 

Mr. COBLE. I thank you for that. 

Professor Silberman, if we in the Congress decide to in fact write 

a Federal statute, your belief is what? Should we adopt the ALI 

model in its entirety, or does the model contain provisions that may 

be difficult to include in a final draft? 

Ms. SILBERMAN. Yes, thank you. 

As I said in my testimony, I was not making a special plea for 

the ALI statute. Much more importantly was the principle that Mr. 

Bellinger also identified, which was to have a uniform Federal statute. 

There are areas, I think, of the ALI provision that may well be 

useful, including issues about accepted bases of jurisdiction, which 

for the moment I think are unclear. There are also developments 

since we have done the ALI statute which may indicate a rethinking of certain provisions. For example, the issue of whether or not 

you look to the specific proceeding, for example, is one that was rejected at the time of the ALI; and I think one might want at least 

to revisit that. 

So the ALI statute also dealt with some broad issues that I think 

may not have to be done by the Congress, and so I think the ALI 

proposal ought to be looked at as just that. 

And I think it can actually be improved upon. Like all of us, 

when you have done something and it sits for a while and you take 

69 

a second look, I think you are never completely satisfied with the 

product you have, and there is always room for improvement, and 

I suspect that it can be improved upon. 

Mr. COBLE. Thank you, Professor. 

I stated to the panelists, unlike you all, it is an area of the law 

in which I am not proficient. So I am learning as we go along. 

And I thank you all again for your attendance today, reiterate 

my apology. But I think, as you know, you assume that risk when 

you come to Capitol Hill. 

But without objection, all Members will have 5 legislative days 

to submit—I want to be sure no one else is up here—to submit to 

the Chair additional written questions for the witnesses, which we 

will in turn forward to the witnesses. Mr. Cohen may be on his 

way. Do you all want to submit anything additionally while we are 

waiting? Feel free to do so. 

Mr. BELLINGER. Nothing here, but happy to wait for Mr. Cohen 

to hear his questions as well. 

Mr. COBLE. Let me go ahead and complete what I was about to 

do until Mr. Cohen arrives. 

All Members will have 5 legislative days to submit to the Chair 

additional written questions for the witnesses, which we will in 

turn forward to the witnesses; and I ask that you respond as 

promptly as possible so that your answers may be made a part of 

the record. Without objection, all Members will have 5 legislative 

days to submit any additional materials for inclusion in the record, 

and then I will thank you again once Mr. Cohen arrives. 

Ms. PATCHEL. Chairman Coble? 

Mr. COBLE. Yes. 

Ms. PATCHEL. I would perhaps make one more statement, if we 

have time for that. 

Mr. COBLE. Sure. 

Ms. PATCHEL. Because both of my colleagues had expressed their 

concern about the patchwork nature of the State law, although, as 

Mr. Bellinger noted, the patchwork, the lack of uniformity is in the 

form that the law takes and not so much in the rule. And the results from jurisdiction to jurisdiction come out the same, for the 

most part, as I said, as much as I think you would find under the 

interpretation of one statute. 

And the reason for that, I think, is that when you look at the 

development of this area of the law, it started as common law, but 

common law that was interpreting international comity. And so it 

was looking at uniform rules. The 1962 Act simply codified those 

rules, and the 2005 Act was a clarification. And so although you 

have the law in different forms in the States, the rules are basically the same and have been continuous over time. 

Mr. COBLE. I thank you for that. 

The distinguished gentleman from Tennessee has just arrived, 

and we will be glad to hear from him. Unlike me, he is proficient 

in this area of the law. 

Steve, I just admitted that I am not that proficient in this area 

of the law, but you are. But it is good to recognize the gentleman 

from Tennessee—Memphis, specifically. 

Mr. COHEN. Thank you, sir. I appreciate that. 

70 

It shows that you and Rick Perry have something in common. 

You all are honest. Because he was honest when Ron Paul gave 

him the third branch of government; and instead of going for it, 

yeah, that is the ticket, I am for getting rid of the EPA, he said, 

no, and oops. 

Mr. COBLE. Would the gentleman yield? 

Mr. COHEN. Yes, I yield. 

Mr. COBLE. I don’t know Governor Perry, but I empathized with 

him that night. Because it has happened to me, and it has happened to a lot of people, and I think he probably handled it about 

as well as he could have. 

I yield back. 

Mr. COHEN. Thank you, sir. 

This is an important subject, and I appreciate the hearing. I 

apologize for being late. 

I was pleased to sponsor the SPEECH Act, which started out as 

a different name, but we went through the Senate and worked with 

Senator Leahy, and I really appreciated his help. We had some 

problems getting it passed at first with a couple of Congresses. We 

passed it here before the Senate did, in I think it was the 110th 

or 109th, and then we got it passed the next Congress, the 110th. 

The libel tourism was important, and I think it is maybe the 

forerunner of this particular hearing. We have got certain standards that we should have for First Amendment issues before we let 

folks get judgments and come here and try to collect on them on 

things that are really antithetical to the American perspective of 

First Amendment rights. And we check that. If they don’t have it, 

we don’t enforce the judgment. So that is important. 

I appreciate the assistance I had from Chairman Smith and Subcommittee Chairman Coble on that bill, Chairman Conyers, and everybody else that worked on it, particularly Senator Leahy, who 

was a gentleman, as he always is. 

We heard testimony from Professor Silberman in favor of a Federal statute to cover the recognition and enforcement of foreign 

judgments generally, rather than ones simply limited to defamation 

suits. That was when we had our hearing on the SPEECH Act in 

the Congress. My priority at that time was free speech, and we had 

some particular issues concerning a New York author and a book 

in England and some Saudi or Middle Eastern objections and problems. 

What you said made sense to me, that we need to have something uniform on the Federal level. So I appreciate your bringing 

that issue to the fore. 

There is a Federal interest, I think, in having foreign judgments 

recognized by our government. I don’t see where there is a problem. 

The States might object, but it is not exactly like making them 

have folks carry pistols that they didn’t authorize. It is not like 

that, which is something we will, without my vote, pass tomorrow. 

But that is different States’ rights. This is a different situation, 

where there truly is a Federal interest, and there should be uniformity among the States and among the jurisdictions. 

I am not sure what the other nations have done with having foreign judgment statutes similar to this. I presume they have something, and I will ask that question when I get a chance. 

71 

But I think it would help us in having that clarity and predictability for foreign judgments, when it is to be enforced and when 

it is not. They should be uniform throughout the country, and I 

think it would be a bipartisan effort. Since the 1920’s, it has largely been a State law issue. And that is not anything that was intended. It just happened because there were State court decisions 

and there was no Federal common law. Congress never had Ms. 

Silberman then. You were born too late to have us have a law at 

the right time. But you came around, and we are adjusting well to 

it. So we are catching up with history. 

If we go far with our Federal legislation, which I hope we do, we 

would seek the State Department’s input and might consider an 

initial step of enacting legislation implementing The Hague Choice 

of Court Convention that John Bellinger, a former State Department legal adviser and witness we have here, alluded to in his 

written statement. 

With the enactment of the SPEECH Act and the United States 

signing The Hague Choice of Court Convention, we have already 

been down—begun the road of federalizing law governing recognition and enforcement of foreign judgments. This broader Federal 

foreign judgment statute seems like the next logical step. 

I am sorry I missed the discussion. I am happy that we have had 

this hearing. I compliment the distinguished Chair of the Subcommittee from the 51st State of East Carolina for scheduling this 

and having this important hearing. 

I could ask one question of Ms. Silberman. Are you related to 

Judge Silberman? 

Ms. SILBERMAN. I am not. 

Mr. COHEN. He is also a brilliant legal mind. 

Ms. SILBERMAN. Thank you. I would be delighted to be in his 

company, which I have been on some occasions. But he once asked 

me if my family was in steel. And I said, no, unless you spelled it 

s-t-e-a-l. 

Mr. COHEN. My great grandfather immigrated from Lithuania, 

and my grandfather had newsstands. And my father at one time 

had a meeting with somebody that was like one of these publisher 

types, whatever. He said, my family was in papers; and my father 

said, mine was, too. 

The other man was publishing newspapers. My grandfather sold 

them on the curb stand. But we were in papers as well. 

Mr. COBLE. Steve, the witnesses have already submitted testimony. If you want to examine them, you may do so. 

Mr. COHEN. Just one question I would ask. What is the law in 

other nations concerning uniform statutes? 

Ms. SILBERMAN. Well, in unitary systems, of course, the U.K. Has 

a statute or common law standards. Australia has a statute. Germany has a statute. But those, of course, are unitary systems. 

Canada, of course, is different; and Canada does deal with these 

issues province by province. But that is also an interesting development, because Canada, in terms of its treaty powers, deals with 

international treaties province by province, unlike the United 

States, where these foreign relation issues are those of the national 

government and of the Congress. 

72 

Mr. COHEN. Let me ask you—this may go back to Government 

101, and I may pull a Rick Perry—but you said Germany has this 

unitary—I thought they had Landers, and I thought the Landers 

had some—like they were similar to States in their authority to 

pass laws. 

Ms. SILBERMAN. Well, I mean, they have—I don’t purport to be 

an expert on German law, but I have done a kind of survey of judgment recognition in other countries. And Germany does have a 

statute that deals with recognition of foreign judgments as to third 

States such as the United States. Of course, within Europe, there 

is the European Regulation or the Brussels Regulation, which deals 

both with jurisdiction and recognition of judgments among European states. 

At the moment, there is a review of the European Regulation ongoing, which would look to, if you will, federalize the rules at least 

with respect to jurisdiction as among third States. So they would 

then—all the rules of jurisdiction in Europe would be the European 

rules, and you would no longer look to jurisdiction or rules in England or in France or in Germany. There would now be European 

rules, and they would apply to defendants from the United States. 

So the move toward treating these issues as Federal subject I think 

is, I would say, pervasive. 

Mr. COHEN. Has the bar or any other body of legal authority in 

the United States taken any position on this? The ABA? 

Ms. SILBERMAN. Well, the ALI has recommended a proposed uniform statute on recognition. I mean, that was the proposal. Because 

we looked at this—the ALI looked at this and decided that the concept of a single uniform Federal law was very important in this 

growing age of commerce and particularly international commerce 

and transnational litigation. 

It is also, I think, important, as I said in my written remarks 

and my comments earlier, that when other countries are thinking 

about recognizing judgments in the United States, that is, taking 

U.S. judgments and enforcing them abroad, they often have a reciprocity requirement. And it will be much easier, much more transparent, much less costly if those countries can look to the United 

States and say here is the position of the United States in terms 

of what we do about foreign country judgments. 

Mr. COHEN. Thank you, Mr. Chairman. I yield back the balance 

of my time and celebrate Memphis’ first basketball victory on their 

way to New Orleans. 

Mr. COBLE. Thank you. And I want to ask you a football question 

after we adjourn. 

I have already submitted my concluding remarks. Again, thank 

you all for your attendance, as well as those in the audience. Come 

back, stay tuned. 

This hearing stands adjourned. 

[Whereupon, at 3:13 p.m., the Subcommittee was adjourned.] 

(73) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in 

Congress from the State of Tennessee, and Ranking Member, Subcommittee on Courts, Commercial and Administrative Law 

Last Congress, I introduced and successfully pushed to enactment the ‘‘Securing 

the Protection of our Enduring and Established Constitutional Heritage Act’’ or 

‘‘SPEECH Act.’’ That law addresses the so-called ‘‘libel tourism’’ phenomenon, 

whereby defamation plaintiffs seek to do an end-run around our free speech protections by seeking a more favorable, less speech-protective foreign forum. 

Among other things, the SPEECH Act prohibits a court in the United States from 

recognizing or enforcing a foreign defamation judgment unless such judgment provides as much protection for speech as our First Amendment and comports with our 

due process standards. As far as I know, it is the first time that Congress has enacted a national standard regarding recognition and enforcement of a type of foreign 

judgment. 

I am proud of having shepherded the SPEECH Act to enactment. I am grateful 

for the support and assistance that Subcommittee Chairman Howard Coble, full 

Chairman Lamar Smith, then-full-Committee-Chairman John Conyers, and our Senate colleagues provided in achieving that end. 

At our hearing on libel tourism that preceded introduction of the SPEECH Act 

last Congress, we heard testimony from Professor Linda Silberman arguing in favor 

of a federal statute to govern the recognition and enforcement of foreign judgments 

generally, rather than one limited just to defamation judgments. 

While my priority at the time was to protect our Nation’s free speech guarantees, 

Professor Silberman’s idea made a lot of sense to me. I am glad that she can be 

with us again to focus on the argument in favor of a broader federal foreign judgments statute. 

There is an overriding federal interest in matters affecting the foreign relations 

of the United States. 

This is particularly so with respect to ensuring a smoothly functioning global commercial system, one which is vital to America’s economic well-being, and in ensuring 

comity with other countries. 

A federal foreign judgments statute would serve this interest by ensuring nationwide uniformity and consistency in this area of the law, providing clarity and predictability for both U.S. and foreign parties in determining when a foreign judgment 

will be enforced and when it will not. 

This discussion should not be framed in an ideological or partisan way. American 

parties, be they plaintiffs or defendants, have the same interest in clear, uniform, 

and predictable rules regarding the recognition and enforcement of foreign judgments in U.S. courts. 

That the recognition and enforcement of foreign judgments has, since the 1920’s, 

largely been a state law matter is a bit of an historical accident, largely based on 

state court decisions, the absence of federal common law, and Congressional acquiescence rather than a specific constitutional prohibition or policy decision by Congress. 

These historical circumstances, by themselves, do not seem like good reasons for 

Congress not to act. 

Should we go forward with federal legislation, we should seek the State Department’s input and might also consider taking the initial step of enacting legislation 

implementing the Hague Choice of Court Convention that John Bellinger, former 

State Department legal adviser and one of our witnesses, alluded to in his written 

statement. 

74 

With enactment of the SPEECH Act and the U.S.’s signing of the Hague Choice 

of Court Convention, we have already begun down the road of federalizing the law 

governing the recognition and enforcement of foreign judgments. A broader federal 

foreign judgments statute seems to be the next logical step. 

I look forward to an interesting and fruitful discussion. 

f 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

Today we consider whether Congress should enact a federal statute to govern the 

recognition and enforcement of foreign judgments. 

I approach this topic with an open mind, and I hope that during the course of 

our discussion, the witnesses can help address a few questions. 

First, what are the concerns with the status quo when it comes to the recognition 

and enforcement of foreign judgments? 

The recognition and enforcement of foreign judgments traditionally has been a 

matter of state law. 

Among possible concerns with continuing under such a state-based system is that 

the existence of a patchwork of state laws governing foreign judgment recognition 

and enforcement undermines necessary uniformity in this area of the law. 

Additionally, Congress ought to have the final say when it comes to matters that 

affect the foreign relations of the United States. The framework under which U.S. 

courts will recognize and enforce foreign judgments may fall within that federal interest. 

Still, any time Congress treads on an area of law traditionally left to the states, 

we must be sensitive to federalism concerns. Even where the Constitution allows us 

to intrude on areas traditionally left to states, we must consider whether doing so 

would be good policy. 

We should also examine the extent to which the recognition and enforcement of 

foreign judgments in fact impacts the Nation’s foreign relations, and what effect a 

federal statute may have on our relations with other countries. 

I am particularly interested to know how the exceptions to enforcement of foreign 

judgments that are part of current law—and that would presumably be made part 

of any federal statute—impact the willingness of other countries to recognize or enforce the judgments of U.S. courts. 

For example, if a U.S. court refused to recognize a foreign judgment on public policy grounds, would that simply open the door to other countries refusing to recognize or enforce U.S. judgments? 

Perhaps a reciprocity requirement such as the one contained in the American Law 

Institute’s model federal foreign judgments statute could help assuage that concern. 

Finally, I would also like the witnesses to address whether, assuming it chooses 

to go ahead with a federal foreign judgments statute, Congress should adopt the 

ALI’s model federal statute. 

The ALI’s proposal appears to be comprehensive and thoughtful. 

If, however, there should be additions or changes made to the ALI proposal, or 

even a different approach altogether, I would like to hear the witnesses’ thoughts 

on what those additions or changes should be, as well as the reasons for them. 

f 

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