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Foreign Court Judgments and the United States Legal System
Foreign Court Judgments and the United States Legal System, edited by Paul B. Stephan, gathers essays from leading thinkers, scholars and practitioners in international law to address the recognition and enforcement of foreign court judgments in the United States legal system.
eBook
British extraterritoriality in Korea 1884-1910 : a comparison with Japan
\"At the root of Britain's requirement for extraterritorial rights was its need, as a commercial and trading power, for British subjects to be able to trade on a publicly available set of legal rules which were applied consistently and fairly by an indepedent judiciary and to ensure that British subjects in foreign countries were not subject to a capricious or arbitrary criminal law system. As Western powers had expanded into Asia from the seventeenth century onwards, their economic and military power had enabled them to impose their demands for extraterritoriality upon Asian countries in a form of legal imperialsim. So, when they came to Korea at the end of the nineteenth century, they simply continued in this fashion--as had Japan in 1876 when, as part of its march to achieve parity of status with the Western powers, it had insisted upon extraterritoriality for itself and its subjects in Korea\"--Page xxv of Preface.
BOOK
VIOLATION OF PUBLIC ORDER AS A GROUND FOR NON-RECOGNITION OF FOREIGN COURT JUDGMENTS IN LITHUANIAN CASE LAW
This article analyzes public order as a ground for the non-recognition of foreign court judgments in the case-law of Lithuanian courts. Violation of public order is often used by the parties to challenge the recognition of foreign court judgments. Firstly, the authors seek to reveal the content of public order as a ground for the non-recognition of foreign court judgments. The concept of public policy must be in-terpreted narrowly, thus ensuring the effectiveness of the process of the recognition and enforcement of foreign judgments and equality of parties. Secondly, the authors raise a debatable question regarding the validity of Lithuanian case law interpreting international treaties concluded between the Republic of Lithuania and other states, as far as it is related to public order as grounds for the non-recognition of foreign judgments. The authors analyze whether these international treaties concluded more than two decades ago are still compatible with the current international standards. Thirdly, this article presents the development of the application of the public policy clause in separate areas of legal relations. Violations of public order are linked to fundamental principles of law and human rights. Such case law is justified and meets the requirements of a narrow interpretation of public order. The courts have found violations of public policy in cases when the child was not heard in person by the court in family cases. Also, courts have found violations of public policy in certain commercial disputes.
Journal Article
Međudržavno posvojenje u Republici Hrvatskoj kroz prizmu slučaja posvojenja djece iz DR Konga
Intercountry and interracial adoptions are forms of international adoption that imply the difference between adopter and adoptee in geographical, racial, and ethnic terms, which makes the adoption process very complex. The recent case of intercountry adoption of children from DR Congo by Croatian citizens confirmed the globally recognized controversy, questionability, and complexity of the intercountry adoption process. The key or additional problem in this case of intercountry adoption is the fact that DR Congo is not a party to the 1993 Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. The case of intercountry adoption of children from DR Congo encouraged the authors to research and analyze international and national regulations and practices relevant to intercountry adoption. In this paper, the authors specifically analyze open issues related to intercountry adoptions in Croatian legislation, more precisely the recognition of foreign court decisions on adoption, minimum standards related to the establishment and recognition of intercountry adoptions, the possibility of termination of adoption, the citizenship status of adopted children, and the children's right to access information about adoption. In conclusion, the authors propose de lege ferenda solutions for the future regulation of intercountry adoptions.
Journal Article
Citations to Foreign Courts—Illegitimate and Superfluous, or Unavoidable? Evidence from Europe
The theoretical arguments in favor and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions as to their actual purpose. This Article aims to fill this gap in the literature. It offers quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. The Article highlights the often superficial nature of cross-citations in some courts. Yet, by and large, our analysis supports the use of cross-citations: it does not have the pernicious effects sometimes suggested by critics, such as undercutting national sovereignty or the legitimacy of the legal system. At best, cross-citations provide a source of inspiration to interpret national law. At worst, they are largely ornamental and of marginal help to make a particular policy argument more persuasive.
Journal Article
Public wrongs, private actions
Corruption and thefts of public assets harm a diffuse set of victims, weakens confidence in public institutions, damages the private investment climate, and threatens the foundations of the society as a whole. In developing countries with scarce public resources, the cost of corruption is an impediment to development: developing countries lose between US
eBook
FORUM NON CONVENIENS AND THE ENFORCEMENT OF FOREIGN JUDGMENTS
When a plaintiff files a transnational suit in the United States, the defendant will often file a forum non conveniens motion to dismiss the suit in favor of a court in a foreign country, arguing, as the forum non conveniens doctrine requires, that the foreign country provides an adequate alternative forum that is more appropriate than a U. S. court for hearing the suit. Some defendants, however, experience \"forum shopper's remorse\": Having obtained what they wished for—a dismissal in favor of a foreign legal system with a supposedly more pro-defendant environment than the United States—they encounter unexpectedly pro-plaintiff outcomes, including substantial judgments against them. When this happens, a defendant may argue that the foreign judiciary suffers from deficiencies that should preclude enforcement of the judgment—an argument seemingly at odds with the defendant's earlier forum non conveniens argument that the same foreign judiciary was adequate and more appropriate. This Article shows that under current doctrine, these seemingly inconsistent arguments are not necessarily inconsistent at all. The forum non conveniens doctrine's foreign judicial adequacy standard is lenient, plaintifffocused and ex ante, but the judgment enforcement doctrine's standard is relatively strict, defendant-focused, and ex post. Therefore, the same foreign judiciary may be adequate for a forum non conveniens dismissal, but inadequate for purposes of enforcing an ensuing foreign judgment. However, these different standards can create a transnational access-tojustice gap: A plaintiff may be denied both court access in the United States and a remedy based on the foreign court's judgment. This Article argues that this gap should be closed, and it proposes doctrinal changes to accomplish this.
Journal Article
RE FLIGHTLEASE: THE ‘REAL AND SUBSTANTIAL CONNECTION’ TEST FOR RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS FAILS TO TAKE FLIGHT IN IRELAND
The common law rules for recognition and enforcement of foreign judgments were radically reformulated by the Canadian Supreme Court in Beals v Saldanha. Few other common law jurisdictions have considered whether or not to follow Canada in this development in private International Law. In 2012, the Irish Supreme Court definitively rejected the Canadian approach. This note examines the judgment in that case, and assesses the reasoning of the Irish Court.
Journal Article
COURTS ON COURTS: CONTRACTING FOR ENGAGEMENT AND INDIFFERENCE IN INTERNATIONAL JUDICIAL ENCOUNTERS
Court-on-court encounters have become a significant part of international life. As people and firms spread their assets and activities over the globe, disputes arise. These matters often end up in more than one country's courts. Judges thus face choices that have consequences abroad, often for foreign judicial bodies. How should courts behave when they know their actions will affect foreign litigation?
Journal Article