Linda Silberman, Martin Lipton Professor of Law, testified before the House Judiciary Committee’s Subcommittee on Courts, Commercial and Administrative Law on November 15 as that body wa sconsidering federal legislation on a national standard for recognizing and enforcing foreign judgments in the U.S. She brought the specialized knowledge gleaned from serving as co-reporter, along with Herbert and Rose Rubin Professor of International Law Emeritus Andreas Lowenfeld, of an American Law Institute project that developed a proposal for such a federal statute.
“I think the need for federal legislation is more important now than ever before,” said Silberman, who previously appeared before the subcommittee in February 2009 to discuss the issue of libel tourism. “A comprehensive federal statute will have an impact in two areas. First, it will provide a federal uniform standard for recognition and enforcement of foreign judgments in the United States. And second, it has the potential to enhance recognition and enforcement of U.S. judgments in other countries.”
Pointing to the disparities among individual states’ laws, Silberman said, “Only a federal statue can ultimately achieve the maximum level of uniformity.” She added: “In the absence of uniformity, the judgment creditor in an enforcement proceeding or the judgment debtor in a declaratory judgment proceeding for non-enforcement can forum-shop for a state law favorable to its position.”
Ultimately, Silberman argued, broader issues than even interstate legal confusion were in play: “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…. Recognition and enforcement of foreign judgments, as well as non-recognition and non-enforcement, 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.”
Silberman is currently part of an advisory group to the State Department helping to prepare federal legislation to implement the Hague Choice of Court Convention, which pertains to choice of court agreements between parties in international civil and commercial cases. She also participated in a November 28 forum organized by the Law School’s Center on Transnational Litigation and Commercial Law, of which she is co-director, as well as in symposia at the University of South Carolina School of Law and Brooklyn Law School earlier in the fall.