In addition, according to many state laws, the foreign judgment must refer to the same parties named as defendants in the US lawsuit (Kaupthing ehf v Bricklayers and Trowel Trades International Pension Fund Liquidation Portfolio, 291 F Supp 3d 21 (DDC 2017)). If a company operates in New York without a power of attorney, it risks rejecting its enforcement actions. However, he can register with the state and pay all costs, taxes, penalties and interest while the trial is pending, thus avoiding dismissal (see Horizon Bancorp v Pompee, 82 A D 3d 935 (2d Dep`t 2011); Showcase Limousine, Inc v Carey, 703 NYS 3d 22, 23 (App Div 2000)). State remedies available for the enforcement of foreign judgments generally include interim injunctions, pending orders, seizure orders and sequestration. In New York, Section 6201(5) of the Civil Practice Law and Rules (CPLR), which governs seizure proceedings, is often the preferred means for the enforcement of a foreign judgment. Once the action is filed, the court decides whether the foreign judgment can be recognized in New York. New York also permits „transaction activities“ under Section 5225(b) of the CPLR (see question 7.2). The Model Laws provide that „a foreign judgment need not be recognized if it conflicts with another final and final judgment“ (see the 1962 Model Law, section 4 (b) (4); the 2005 Model Law, article 4 (c) (4)). Many state statutes contain this language (see CPLR § 5304(b); Byblos Bank Eur, SA v Sekerbank Turk Anonym Syrketi, 885 NE 2d 191 (NY 2008), upholding the non-recognition of a Belgian judgment which contradicted an earlier judgment of a Turkish court). However, there is no hard and fast rule as to the acceptance of the judgment (see Restatement (Third) of Foreign Relations Law, § 482(2)(e) and cmt g (Am Law Inst 1987): „The courts may recognize the later of two contradictory foreign judgments, but under paragraph 2(e) the court may recognize the earlier judgment or neither“).
Section 1312(a) of the New York Business Corporation Law provides that a foreign corporation (i.e., a corporation incorporated under the laws of another state or foreign government) without a certificate of power of attorney from the New York Secretary of State „shall not carry on any special action or proceeding in that State unless such corporation has been authorized“ (NY Bus Corp Law § 1312(a)). There is a presumption that, in the event of a lawsuit brought by a foreign corporation that does not have a power of attorney, the corporation operates in its state of incorporation and not in New York. Doing business in New York means having regular and continuous behavior in the state. Enforcement is not denied solely because the foreign law underlying the judgment or arbitral award differs from U.S. law or is more favorable to creditors than U.S. law (see, for example, Java Oil Ltd v Sullivan (2008) 168 Cal App 4th 1178, 1192 (Cal App 4th 2008): „The fact that a foreign judgment is based on laws that, by or contrary to California law, have no basis to refuse to enforce the foreign judgment“). However, if the foreign court`s judgment violates U.S. law, a court may, in the circumstances, refuse to recognize the foreign judgment on grounds of public policy. For example, in Telnikoff v. Matusevitch, 702 A 2d 230 (Md 1997), the court refused to execute an English judgment for libel, because the English libel law „opposes.
on the press freedom policy underlying the Maryland law“ (id. p. 249). A debtor can only object if the creditor has brought an action for enforcement. In Chevron Corp v Naranjo, 667 F 3d 232 (2d Cir 2012), the Second Circuit rejected the debtor`s attempt to have the judgment declared invalid from abroad before a party sought enforcement of the judgment. The court noted that „the recognition law does not empower a court anywhere to declare unenforceable a foreign judgment on an alleged debtor`s application for pre-emption“ (id, p. 240) (see Jill Stuart Asia LLC v. LG Fashion Corp, No. 18-CV-3786 (VSB), 2019 WL 4450631 (SDNY 17 September 2019), applying Chevron`s principles to a global injunction action)). Judgments on taxes, fines or other penalties are exempt from recognition laws.
Under the Recognition Act 1962, the courts also do not recognise or enforce judgments „in support of matrimonial or family matters“ (Recognition Act 1962, section 1(2)). The Recognition Act 2005 extended this exclusion to judgments „on divorce, maintenance or other judgments given in family relationships“ (Recognition Act 2005, § 3(b)(3)). Unlike state courts, federal courts are subject to constitutional jurisdiction. You will hear recognition and enforcement actions under the diversity of citizenship jurisdiction or federal jurisdiction, with diversity of citizenship jurisdiction being the most common ground of jurisdiction (28 U.S.C. § 1332) (district courts have jurisdiction over all civil actions if the disputed case exceeds $75,000 and the parties are different). In diversity cases, federal courts apply the rules of recognition and enforcement of the state in which the federal court has its seat. Therefore, the transfer of a state enforcement action to the Federal Court generally results in the Federal Court applying the same state law that would have been applied in state court proceedings. If the substantive jurisdiction of a federal court is based on a question of federal law rather than on reasons of diversity, the courts will apply the applicable federal law (if any) or the federal common law. If the creditor has brought an action, the procedures and limitation periods for filing a dispute are a matter for State law. In Florida, for example, „the debtor has 30 days after service of notice [of the foreign judgment record abroad] to file an objection with the clerk of the court setting out the reasons for non-recognition or non-enforceability under this Act“ (Fla Stat Ann § 55.604(2)).
Lawsuits against foreign sovereigns are governed by the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1608 (2012). This Act empowers federal courts to exercise personal jurisdiction over foreign sovereigns if one of its exceptions to jurisdictional immunity applies and the sovereign has been seized of proceedings in accordance with its provisions (e.g., see Crystallex Int`l Corp v. Bolivian Republic of Venezuela, 932 F 3d 126 (3d Cir 2019)). Many states, such as New York, allow „sales promotions“ (see CPLR § 5225(b)). An action for sale is a special proceeding brought by creditors when the person who owns or controls the money or property is not the debtor, but a third party — for example, a financial institution with branches in New York. Upon sufficient presentation, „the courts shall require that person pay the money, or the sum sufficient to satisfy the judgment, to the judgement creditor and, if the amount payable is insufficient to enforce the judgment, to hand over other personal belongings to the judgement or as much as they are of sufficient value to satisfy the judgment; to a designated sheriff“ (CPLR § 5225(b)). The „burden of proof in a transfer proceeding lies with the judgement creditor,“ but the creditor „is entitled to full disclosure to assist in the prosecution of claims“ (Petrocelli v Petrocelli Elec Co, 995 NYS 2d 552, 553 (App Div 2014). In addition, a New York-based court with personal jurisdiction over a non-sovereign third party may recall the extraterritorial assets of a foreign sovereign in New York (Peterson v Islamic Republic of Iran, 876 F 3d 63 (2d Cir 2017)), certificate application filed (US 7 May 2018) No.
17-1534).