Concept Legal Nature And Law Applicable To Recognition And Enforcement Of Foreign Judgments

Author : Gilberto Hernandez Oseguera
Publisher :
ISBN 13 : 9781303817281
Total Pages : 213 pages
Book Rating : 4.8/5 (172 download)

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Download or read book Recognition and Enforcement of Foreign Judgments Between Mexico and the United States of America written by Gilberto Hernandez Oseguera and published by . This book was released on 2014 with total page 213 pages. Available in PDF, EPUB and Kindle. Book excerpt: The U.S. has not ratified any international convention nor has it adopted federal legislation regarding the enforcement or recognition of foreign judgments. The contemporary rule of thumb in judicial proceedings that deal with the recognition or enforcement of foreign judgments is the use of the principles of judicial comity by state or federal judges, where state law is the most important source in the recognition process. The historical root of this rule is a decision from the U.S. Supreme Court dating back to 1895, Hilton v. Guyot, where Justice Gray grounded his reasoning in common law principles and rejected the application by analogy of the Full Faith and Credit Clause in Article IV of the U.S. Constitution. Naturally, the context of global trade and commerce at that time is dramatically different from today's globalized economic transactions that require a higher level of certainty. The current rule does not provide it and hence has generated several concerns related to the existing diversity between state law interpretations on enforcement grounds. The academic reports show that the fragmentation discourages particular sets of business transactions and forces people to rely on commercial arbitration instead; ironically, this has a clearer set of rules for the enforcement of its awards due to the fact that the U.S. is a party to the New York Convention for the Enforcement of Foreign Arbitral Awards and has adopted federal legislation to implement it. The latest efforts to stop the fragmented approach on the part of the U.S. concerning this issue includes the adoption of international multilateral instruments and the passing of federal legislation that sets principles of enforcement for all federal judicial bodies in the U.S. Nevertheless, both efforts have been unfruitful. This research agrees with the general academic consensus that argues that the most suitable way to solve this fragmentation is to federalize the procedure through legislation. This conclusion comes from the fact that the adoption of an international convention would still need a federal state statute passed to avoid being framed as a non-self executing treaty or a decision from a federal court recognizing its self executing nature in order to put an end to uncertainty. In addition to being free of the traditional perils of the U.S. doctrine on the constitutional status of international covenants, a federal bill would not be subject to this problem.