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Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction?
New York's general policy is to facilitate recognition and enforcement of foreign judgments, provided that certain basic criteria are met (54 NY Jur 2d Enforcement and Execution of Judgments, Section 351 (2011)). This policy applies to recognition and enforcement proceedings before New York state courts, as well as before US federal courts located in New York (see Fed R Civ P Rule 69(1)(a)):
"A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution… must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies."
Although a set of common principles apply to recognition and enforcement of all foreign judgments, there are particular procedures for the recognition and enforcement of foreign money judgments as opposed to foreign non-money judgments. Such judgments are governed primarily, but not exclusively, by Article 53 of the New York Civil Practice Law and Rules, which in turn enacts the Uniform-Foreign Country Money Judgments Recognition Act. This legislation covers "any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters".
Subject to various exceptions, New York courts generally recognise and enforce a foreign money judgment, provided that the judgment meets:
- basic due process; and
- basic notions of personal jurisdiction against the defendant.
With respect to foreign non-money judgments, no statute directly regulates their recognition and enforcement. Their status is governed by New York common law, under which New York courts generally accord recognition to such judgments on the basis of comity, unless:
- basic jurisdictional or due process requirements are not satisfied; or
- the judgment violates fundamental rules of New York public policy (54 NY Jur 2d Enforcement and Execution of Judgments, Section 351; Siegel's New York Practice, Section 472; and Hilton v Guyot, 159 US 113 (1895)).
New York courts therefore have room to determine the ultimate enforceability of foreign non-money judgments based on the facts of the case. Once recognised, such judgments may be enforced under specific provisions of the rules (see Sections 5102 to 5104, 5201 and following).
Which international conventions and bilateral treaties relating to the recognition and enforcement of judgments apply in your jurisdiction?
The United States is not presently party to any binding multilateral treaties relating to the recognition and enforcement of foreign judgments, money or otherwise. The applicable legal framework must be found by reference to the laws of the state where a recognition or enforcement proceeding is commenced (Siegel's New York Practice, Section 472).
The United States is a signatory to the Hague Convention on Choice of Court Agreements. Under the convention, courts of one contracting state must recognise and enforce a judgment issued in a court of another contracting state designated in an exclusive choice of court agreement between the parties involved. The United States has yet to ratify the convention and it is therefore not applicable to the enforcement or recognition of foreign judgments in New York.
Which courts are competent to hear cases on the recognition and enforcement of foreign judgments?
The recognition and enforcement of a foreign judgment may be pursued in any New York state or federal court that possesses a competent basis for asserting jurisdiction over the judgment debtor.
With respect to New York state courts, the New York Supreme Court is the trial-level court of general or original jurisdiction. A proceeding for recognition and enforcement of a foreign judgment can be commenced there, assuming certain money thresholds are met. There are several other state trial-level courts possessing general jurisdiction, albeit constrained by geographic and amount-in-controversy limitations in which a recognition or enforcement proceeding could be pursued, including:
- the New York City Civil Court;
- the New York District Courts (not to be confused with the federal US district courts located within New York);
- the City Courts of New York; and
- the Town and Village Courts of New York.
These latter courts should be considered in cases in which the size of the judgment is relatively small.
US federal courts located in New York possess jurisdiction in certain situations where the following are established:
- subject matter jurisdiction;
- personal jurisdiction; and
In cases involving recognition of foreign judgments, an important source of subject-matter jurisdiction is diversity (ie, where one party is a citizen of a US state and the other party either is a citizen of another US state or is a foreign citizen – see, for example, 28 USC, Sections 1331 and 1332).
A state or federal court in the United States may require a showing of personal jurisdiction over the judgment debtor (ie, some connection, such as residence or ownership of local assets; Lenchyshyn v Pelko Electric Inc, 281 AD2d 42, 47 (4th Dep't 2001) – for personal jurisdiction purposes, it is sufficient if the judgment debtor's assets are located in the state). Judgment debtors might even attempt to seek dismissal of an enforcement action on the grounds of forum non conveniens. Such an argument might rely on decisions of the Second Circuit that allowed dismissal proceedings for enforcement of an arbitral award on such grounds (Figueiredo Ferraz E Engenharia de Projeto Ltda v Republic of Peru, 665 F3d 384 (2d Cir 2011)). However, the latter decision has attracted significant criteria from some quarters and has not been applied directly to foreign judgments.
Distinction between recognition and enforcement
Is there a legal distinction between the recognition and enforcement of a judgment?
There is a legal distinction between ‘recognition’ and ‘enforcement’ of a judgment. Recognition of a foreign judgment is when a court converts such judgment into a US judgment, giving it res judicata effect and preventing re-litigation of the underlying claims and facts between the parties. Thus, on recognition of a foreign judgment in New York, that judgment becomes conclusive between the parties in the eyes of New York courts.
Once the foreign judgment is recognised, it is enforceable as a domestic judgment, which means that a party can invoke the procedures for enforcement under New York law, as codified in the New York Civil Practice Law and Rules. The judgment is thereafter entitled to full faith and credit in other US courts.
Ease of enforcement
In general, how easy is it to secure recognition and enforcement of foreign judgments in your jurisdiction?
Although every case is different, a straightforward foreign money judgment should, in principle, be recognised and enforced in New York without undue difficulty.
Are any reforms to the framework on recognition and enforcement of judgments envisioned or underway?
There appears to be no publicly disclosed proposals to reform New York's existing legal framework regarding the recognition and enforcement of foreign judgments. Equally, it does not appear that the United States is close to ratifying any multilateral treaties on the enforcement of foreign judgments.
Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
Foreign money judgments (ie, any judgment of a foreign state granting or denying recovery of a sum of money) are enforceable under the Uniform Foreign-Country Money Judgments Recognition Act and the New York Civil Practice Law and Rules (Article 53), except to the extent that such judgment is "a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family affairs" (Section 5301(b) of the rules). The act does not apply to foreign non-money judgments, but such judgments may be recognised and enforced on the basis of comity (Badawi v Wael Mounir Alesawy, 135 AD3d 792, 793 (2d Dep't 2016)):
"Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York." (Downs v Yuen, 298 AD2d 177, 177 (1st Dep't 2002)).
"Even if the subject judgment is, at least in part, one 'for support' within the meaning of CPLR 5301(b), and therefore, at least in part, not enforceable under the UFCMJRA, there is no reason why the judgment should not be enforced under general principles of comity." (Overseas Dev Bank v Nothmann, 103 AD2d 534, 538-39 (2d Dep't 1984), rev'd on other grounds, 64 NY2d 927 (1985) – explaining that Article 53 does not preclude enforcement of non-money judgments in New York).
How are foreign judgments subject to appeal treated?
The Uniform Foreign-Country Money Judgments Recognition Act "applies to any foreign country judgment which is final, conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal". New York courts have discretion to stay proceedings though if a foreign monetary judgment remains subject to appeal (Section 5306 of the New York Civil Practice Law and Rules):
"If the defendant satisfies the court either that an appeal is pending or that he is entitled and intends to appeal from the foreign country judgment, the court may stay the proceedings until the appeal has been determined or until the expiration of a period of time sufficient to enable the defendant to prosecute the appeal."
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
New York requires that an authenticated copy of the foreign judgment for which recognition and enforcement is sought, and, if applicable, a certified English-language translation, be filed in court (Section 2101(b) of the New York Civil Practice Law and Rules):
"Each paper served or filed shall be in the English language… Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." (Smart Union Min Investments Ltd (in Liquidation) v Jin, 7034212013, 2015 NY slip op 30196(U), at *3; NY Sup Ct Queens Cnty, January 20 2015 – denying the defendant's cross-motion to dismiss recognition and enforcement proceeding of a foreign judgment on the basis that he had not received timely notice of the underlying complaint, in part, when the defendant failed to provide a certified translation of his sworn affidavit asserting such facts, rendering the affidavit inadmissible).
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
The grounds for recognition of a foreign money judgment in New York are enumerated in the Uniform Foreign-Country Money Judgments Recognition Act. A foreign money judgment will be recognised if it is "final, conclusive and enforceable where rendered" (Section 5302 of the New York Civil Practice Law and Rules).
First, a judgment will be final even if an appeal is pending or the judgment is subject to appeal (Id, SC Chimexim SA v Velco Enters Ltd, 36 F Supp 2d 206, 213 (SDNY 1999) – explaining that as long as the foreign money judgment is executory and no stays of enforcement are issued and pending in the foreign country, then it is deemed final).
Second, a foreign money judgment "is conclusive between the parties to the extent that it grants or denies recovery of a sum of money" (Section 5303), unless it falls under grounds for non-conclusiveness under Section 5304(a) of the rules (Dauerre SARL v Rabizadeh, 112 AD3d 876, 878 (2d Dep't 2013), citing Section 5304(a)(2) and refusing to recognise a foreign judgment as the plaintiff failed to show that the rendering court in Paris had personal jurisdiction over the defendant); infra Question IIF). Further, in determining whether a foreign money judgment is enforceable, New York courts will examine whether there are circumstances under the law of the country in which the judgment was rendered that would render it unenforceable in that country (Sea Trade Mar Corp v Coutsodontis, 135 AD3d 442, 442 (1st Dep't 2016) – recognising that the Spanish decree on which the court granted judgment had the necessary definitiveness and enforceability so as to make it enforceable in Spain; see also Overseas Dev Bank, 103 AD2d at 543 – refusing to recognise an English judgment because the English limitation period for enforcement of judgments had expired).
New York courts will not ordinarily review the merits of a foreign money judgment if it meets the criteria (Section 5303 of the rules; CIBC Mellon Tr Co v Mora Hotel Corp NV, 100 NY2d 215, 222 (2003) – explaining that the court's function when recognition of a foreign judgment is sought is merely to "perform its ministerial function of recognizing the foreign country money judgment and converting it into a New York judgment"). This is in line with respecting the principles of comity (Siegel's New York Practice, Section 472). However, a New York court can enquire into whether the foreign court's finding of personal and subject matter jurisdiction comports with New York's own notions of due process and public policy (Section 5304 of the rules; John Galliono SA v Stallion Inc, 15 NY3d 75, 81 (2010) – finding that proper notice was given but explaining that if a defendant had received no meaningful notice of the foreign proceeding, that lack of notice would be a legitimate basis for non-enforcement; Fairchild, Arabatzis & Smith Inc v Prometco (Produce & Metals) Co, 470 F Supp 610, 615 (SDNY 1979):
"Nevertheless, a foreign judgment when sued upon in New York normally precludes a retrial upon the merits unless the judgment is tainted with fraud or with an offense against public policy or the foreign court had no jurisdiction over the person of the defendant or of the subject matter of the action."
What is the limitation period for enforcement of a foreign judgment?
In New York the statute of limitations for enforcing a foreign judgment is determined by the nature or type of action. Generally, for enforcement of a money judgment, the limit is 20 years (Section 211(b) of the New York Civil Practice Law and Rules).
As the foreign judgment seeking enforcement must be "enforceable where rendered" (Section 5302), the foreign judgment must still be enforceable within the statute of limitations of where it was obtained, which will have its own unique rules of civil procedure (Overseas Dev Bank, 103 AD2d at 543 – refusing to recognise a foreign money judgment rendered in England, where the limitation period for actions on money judgments is six years, for failing to execute the judgment in that time).
Grounds for refusal
On what grounds can recognition and enforcement be refused?
New York courts will refuse recognition of a foreign money judgment if it is not final, conclusive and enforceable (Sections 5302 to 5304 of the New York Civil Practice Law and Rules). Further, the Uniform Foreign-Country Money Judgments Recognition Act provides two mandatory grounds on which a New York court must not recognise a foreign money judgment, because it is not conclusive:
- if it "was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law"; or
- if "the foreign court did not have personal jurisdiction over the defendant" (Section 5304(a)).
There are eight further enumerated grounds under the act on which New York courts have discretion not to recognise foreign money judgments and which broadly codify case law and public policy on these points:
- if the foreign court have no jurisdiction over the subject matter;
- if the defendant in the proceedings in the foreign court received no notice of the proceedings in sufficient time to defend;
- if the judgment was obtained by fraud;
- if the cause of action on which the judgment was based is repugnant to the public policy of this state;
- if the judgment conflicts with another final and conclusive judgment;
- if the proceedings in the foreign court are contrary to an agreement between the parties under which the dispute in question is to be settled otherwise than by proceedings in that court;
- if, in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of that action; and
- if the cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless the court before which the matter is brought sitting in this state first determines that the defamation law applied in the foreign court's adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York constitutions.
Section 5304(b) of the rules (eg, John Galliano SA, 15 NY3d at 81 (applying Section 5304(b)(2) and declining enforcement of lack of notice); Bachchan v India Abroad Publications Inc, 154 Misc 2d 228, 230 (NY Sup Ct NY Cnty 1992) (providing an example of non-recognition for violation of public policy as codified in Section 5304(b)(4)); Byblos Bank Europe SA v Sekerbank Turk Anonym Syrketi, 10 NY3d 243, 248-49 (2008) (applying Section 5304(b)(5) and declining enforcement); and Richard C Reilly, Supplementary Practice Commentaries (Section 5304:3)) explain that:
- with respect to Section 5304(b)(6), New York courts will look at the reasonableness of the foreign court's disregard of the agreement between the two parties before determining whether such disregard was unfair and therefore grounds for non-recognition; and
- Section 5304(b)(8) "bars New York's recognition of a foreign defamation judgment unless the New York court determines that the defamation law applied by the foreign court is 'at least' as protective of free speech as the United States and New York constitutions are".
Of particular note is Section 5304(b)(7), allowing for non-recognition where the foreign judgment was made in a "seriously inconvenient foreign forum". New York courts and scholars have interpreted this restrictively, holding that it should be applied only where a New York court in an analogous situation would have dismissed the case under its own doctrine of forum non conveniens (codified at Section 327 of the rules) (Silver v Great American Ins, 29 NY2d 356, 361-363 (1972), noting that the doctrine of forum non conveniens is a question of public policy which rests on considerations of justice, fairness and convenience and not solely on the residence of one of the parties).
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
Under Article 53 of the New York Civil Practice Law and Rules, New York courts will scrutinise the service of process to ensure that the foreign money judgment comports with traditional notions of due process of law. New York courts therefore must decline to recognise a foreign money judgment if the judgment was rendered under a system that does not possess procedures compatible with the requirements of due process of law, including with respect to service of process (Section 5304(a)(1) of the rules). New York courts also have discretion to decline to recognise a foreign money judgment if the defendant in the underlying proceeding did not receive notice of the proceedings in sufficient time to defend himself or herself (Section 5304(b)(2)). However, this does not mean foreign procedures must exactly match those of New York. Enforcement will be granted as long the as the foreign procedures are compatible with New York's notions of procedural fairness (CIBC Mellon, 100 NY2d at 222):
"In summary, the relevant inquiry under CPLR 5304 (a)(1) is the overall fairness of England's legal ‘system’, which is beyond dispute… Indeed, defendants were given ample notice and numerous opportunities to present their defense in England; they simply elected to forego these opportunities (apparently against the advice of their English attorneys) for strategic reasons."
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
New York law allows for non-recognition of a foreign money judgment where "the cause of action on which the judgment is based is repugnant to the public policy of the state" (Section 5304(b)(4) of the New York Civil Practice Law and Rules). Equally, for non-money judgments, comity will not be accorded if recognition would violate a strong New York public policy (J Zeevi & Sons Ltd v Grindlays Bank (Uganda) Ltd, 37 NY2d 220, 227-28 (1975) – noting that a violation will be triggered where the judgment offends New York court's own sense of justice and equity, as embodied in its public policy, but the holding exception did not apply; see also 19A NY Jur 2d Conflict of Laws Section 17 (2010)). A notable example of an objection on public policy grounds is Bachchan v India Abroad Publications Inc (154 Misc 2d 228 (Sup Ct NY Cnty 1992)), in which a defamation judgment obtained in England was denied recognition due to it offending safeguards for freedom of speech required by the First Amendment.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
New York courts do not recognise foreign money judgments rendered by a foreign court that did not have personal jurisdiction over the defendant (Section 5304(a)(2) of the New York Civil Practice Law and Rules). New York courts will review a foreign court's jurisdiction over the defendant by assessing whether the exercise of jurisdiction generally comports with New York's concept of personal jurisdiction (Sung Hwan Co v Rite Aid Corp, 7 NY3d 78, 82-83 (2006):
"Thus, the inquiry turns on whether exercise of jurisdiction by the foreign court comports with New York's concept of personal jurisdiction, and if so, whether that foreign jurisdiction shares our notions of procedure and due process of law."
New York courts will then ask whether that foreign jurisdiction shares New York's notion of procedure and due process of law (as codified under Section 5304(a)(1) of the rules). If so, the judgment will be enforced in New York without need for thorough analysis of the underlying proceeding (Id). The Uniform Foreign-Country Money Judgments Recognition Act also enumerates six specific situations in which recognition of a foreign money judgment will not be refused on the basis of a lack of personal jurisdiction.
The foreign country judgment will not be refused recognition for lack of personal jurisdiction if:
- the defendant was served personally in the foreign state;
- the defendant voluntarily appeared in the proceedings, other than for the purpose of protecting property seized or threatened with seizure or contesting the jurisdiction of the court over him or her;
- before commencement of proceedings, the defendant had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;
- the defendant was domiciled in the foreign state when the proceedings were instituted or, being a body corporate, had its principal place of business, was incorporated or had otherwise acquired corporate status in the foreign state;
- the defendant had a business office in the foreign state and the proceedings in the foreign court involved a cause of action arising out of business done by the defendant through that office in the foreign state; or
- the defendant operated a motor vehicle or aircraft in the foreign state and the proceedings involved a cause of action arising out of such operation (Section 5305).
Even if one of the six specific situations is not present, New York courts may still be determine that the foreign court had adequate personal jurisdiction over the defendant (Section 5305(b), "The courts of this state may recognize other bases of jurisdiction"), including by reference to the other bases for personal jurisdiction provided under Sections 301 and 302 of the rules (Gemstar Canada, Inc v George A Fuller Co, 127 AD3d 689, 690 (2d Dep't 2015), recognising a foreign judgment and citing Section 302(a)(1) of the rules to find a basis for the foreign court's personal jurisdiction over defendant based on their purposeful conduct of business within the jurisdiction of that court; see also Richard C Reilly, Supplementary Practice Commentaries, Section 5305:1: "[I]t would seem appropriate for New York to recognize for a foreign judgment, under subdivision (b) of CPLR 5305, any jurisdictional basis it recognizes in its own internal law").
With regard to subject-matter jurisdiction, New York courts may withhold recognition if the foreign court did not have jurisdiction over the subject matter of the dispute that led to the judgment (Section 5304(b)(1); Canada Inc v Abele Tractor & Equip Co, 299 AD2d 47, 49 (3d Dep't 2002), stating generally that lack of subject matter is grounds for non-recognition of a foreign judgment and denying the defendant's argument based on this because the Canadian courts had subject matter over the dispute under Canadian laws; see also Banco De Serguros Del Estado v JP Morgan Chase & Co, 500 F Supp. 2d 251, 253 (SDNY 2007), finding that the Uruguayan court had subject-matter jurisdiction over the case, as it had heard other cases based on the same fraud proceedings).
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
With regard to parallel foreign proceedings (assuming that such proceedings are appeals) and not the underlying action in which the judgment was obtained (as such a judgment is unlikely to be final, conclusive or enforceable), Article 53 of the New York Civil Practice Law and Rules allows a party to seek recognition of a foreign money judgment even if the judgment is on appeal or subject to appeal (Section 5302). However, New York courts have discretion to stay recognition until that appeal has concluded or the party opposing recognition has been allowed a reasonable opportunity to pursue the appeal (Section 5306).
With regard to parallel domestic proceeding before another New York (or United States) court, the Uniform Foreign-Country Money Judgments Recognition Act allows a party seeking recognition and enforcement of a foreign money judgment to raise the pendency of that proceeding issue as a counterclaim, cross-claim or affirmative defence (Section 5303).
With regard to conflicting foreign judgments, New York courts have discretion to refuse recognition if the "judgment conflicts with another final and conclusive judgment" (Section 5304(b)(5)). Since Article 53 does not specify which of the two conflicting foreign judgments is entitled to recognition, New York courts will ordinarily apply the principles of comity (Byblos Bank Europe SA v Sekerbank Turk Anonym Syrketi, 10 NY3d 243, 248-49 (2008) – rejecting an application seeking recognition of a Belgian judgment which did not recognise an earlier Turkish judgment because it had departed from the principles of res judicata and comity; see also Shakopee Mdewakanton Sioux (Dakota) Gaming Enter v Prescott, 779 NW2d 320, 326 (Minn 2010): "domestic courts may refuse to enforce judgments of foreign courts that ignore the preclusive effects of earlier judgments from other foreign jurisdictions").
What defences are available to the losing party to a foreign judgment that is sought to be recognised and enforced in your jurisdiction?
A defendant to a foreign money judgment may raise any of the grounds for non-recognition under the Uniform Foreign-Country Money Judgments Recognition Act (Section 5304 of the New York Civil Practice Law and Rules; supra Part IIF; John Galliono SA, 15 NY3d at 80, noting that a foreign money judgment is to be recognised in New York under Article 53 of the rules unless a ground for non-recognition under Section 5304 is applicable). Broadly the same principles apply as defences to an action to recognise or enforce a foreign non-money judgment (Richard C Reilly, Supplementary Practice Commentaries, Section 5304:1, explaining that "ultimately, CPLR 5304 denies recognition to a foreign judgment on a variety of grounds; in the aggregate probably broader than the grounds New York would invoke under case law built around the ‘comity’ doctrine").
What injunctive relief is available to defendants (eg, anti-suit injunctions)?
The Uniform Foreign-Country Money Judgments Recognition Act does not afford judgment debtors any affirmative injunctive remedies (eg, it does not create a statutory basis for seeking a pre-emptive injunction to restrain enforcement of a foreign money judgment). Thus, although every case is unique (and exceptions may apply), the usual procedure is to challenge the validity of foreign judgments only after the judgment-creditor seeks enforcement (Chevron Corp v Naranjo, 667 F3d 232, 241 (2d Cir 2012), "these procedural requirements exist for good reason… motivated by an interest to provide for the enforcement of foreign judgments, not to prevent them").
Recognition and enforcement procedure
What is the formal procedure for seeking recognition and enforcement of a foreign judgment?
Pursuant to Section 5303 of the New York Civil Practice Law and Rules, recognition and enforcement of a foreign money judgment in New York may be sought by "an action on the judgment, a motion for summary judgment in lieu of complaint, or in a pending action by counterclaim, cross-claim or affirmative defense". Plaintiffs will generally seek to do so through a motion for summary judgment in lieu of complaint.
What is the typical timeframe for the proceedings to grant recognition and enforcement?
This depends on whether the application is contested. In uncontested cases, recognition and enforcement may be granted not long after the service order. In contested cases, the proceedings may take several months (or even longer).
What fees apply to applications for recognition and enforcement of foreign judgments?
To commence an ordinary action or a summary judgment in lieu of complaint in a New York Supreme Court, the party seeking recognition and enforcement must purchase an index number for $210 (Section 8018 of the New York Civil Practice Law and Rules). To commence any new action in the Southern District of New York, a $350 filing fee and a $50 administrative fee must be paid (28 USCA, Section 1914).
Must the applicant for recognition and enforcement provide security for costs?
New York does has no system of fee-shifting, as found in the Common Law system (or systems based on Common Law). As such, the notion of ‘security for costs’ (as commonly understood in Common Law) does not apply in New York.
Are decisions on recognition and enforcement subject to appeal?
Appeal and review of a decision recognising a foreign judgment is available to an aggrieved party (Section 5501 of the New York Civil Practice Law and Rules). When a monetary judgment is appealed, there is generally no stay unless the judgment debtor posts a bond.
How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?
With regard to the calculation of interest, before the entry of a New York judgment, when a foreign money judgment seeks recognition and enforcement in New York, it is the foreign interest rate obtained on the judgment which governs (72 NY Jur 2d Interest and Usury, Section 6 (2013)). Once a judgment is entered, the law of the enforcing court controls the rate of, and the right to, interest on that judgment (Id). In state court there is a statutory rate (Section 5004 of the rules; the rate of interest in New York is 9% per annum).
Regarding exchange rates for judgments obtained in foreign currencies, New York courts will ordinarily set the rate as that which prevailed at the date that the contract was breached, or as of the date when the obligation is payable or matures (36 NY Jur 2d Damages, Section 47 (2014); Parker v Hoppe, 257 NY 333, 340 (1931)). However, in more recent cases, New York courts have been inclined to set the date for which the rate will be determined as that which does justice to both parties (ie, the judgment date) (Teca-Print AG v Amacoil Mach Inc, 138 Misc 2d 777, 784 (Sup Ct NY Cnty 1988) – courts will look at surrounding circumstances to reach a just and equitable result regarding exchange rate).
Enforcement against third parties
To what extent can the courts enforce a foreign judgment against third parties?
Article 52 of the New York Civil Practice Law and Rules allows for attachment of judgment debtors' assets in the hands of third parties. To seek turnover of such assets, the judgment creditor must commence special proceedings against the third party and New York courts must have personal jurisdiction over the third party (Section 5225(b) of the rules; see also Koehler v Bank of Bermuda Ltd, 12 NY3d 533, 541 (2009), "a New York court with personal jurisdiction over a defendant may order him to turn over out-of-state property regardless of whether the defendant is a judgment debtor or a garnishee"). However, Article 52 will not apply to property that is not in the actual possession or custody of the third party, and as a result will generally be unavailable if the property is merely in the custody of an entity that is legally separate from the third party (eg, its subsidiary or parent) (Commonwealth of N Mariana Islands v Canadian Imperial Bank of Commerce, 21 NY3d 55, 62-64 (2013)).
Partial recognition and enforcement
Can the courts grant partial recognition and enforcement of foreign judgments?
New York courts may grant partial recognition and enforcement of a foreign judgment while severing the unenforceable portions of such judgment (Sarl Louis Feraud Int'l v Viewfinder Inc, 406 F Supp 2d 274, 278 (SDNY 2005):
"The unenforceability of the astreinte, however, does not affect the judgment for damages. As the Second Circuit has recognized, 'courts are not limited to recognizing a [foreign] judgment entirely or not at all. Where a foreign judgment contains discrete components, the enforcing court should endeavor to discern the appropriate 'extent of recognition,' with reference to applicable public policy concerns'." (quoting Ackermann v Levine, 788 F 2d 830, 844 (2d Cir 1986), rev'd on other grounds, 489 F3d 474 (2007)).
Partial recognition is most likely to occur when the foreign judgment has been subject to public policy or penalty issues. However, severability is unlikely in cases where the foreign judgment suffers from more fundamental defects (eg, judgments procured by fraud or under a system lacking due process or impartial court systems).