Recognition and Enforcement of Foreign Judgments in American Courts and the Limits of the Law Market Model
The law market model posits that the most appropriate resolution of choice of law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to a healthy competition among jurisdictions to supply the most efficient law. This model has been followed in several areas, most notably in the widespread enforcement, at least within some limits, of contractual choice of law and forum selection clauses. One area that the model has had little influence is the enforcement of foreign judgments. In the American States, judgments from other countries face higher hurdles in obtaining recognition and enforcement, as compared to judgments issued by courts of sister states. There has been little discussion in the law market literature of the possibility of ex ante contractually waiving these hurdles, or of choosing the law of states that make it easier to enforce foreign judgments. This reticence appears to be based in part on the assumption that state law on such recognition is mandatory and non-waivable, and that such law reflects sovereign interests of states or, more bluntly, xenophobia. Revisiting this regime through the lens of the law market model suggests that courts and public policymakers should permit parties, within broad limits, to contractually waive or select the law on judgment recognition, as they are permitted to do with other areas of law.
Michael E. Solimine, Recognition and Enforcement of Foreign Judgments in American Courts and the Limits of the Law Market Model, 23 Theoretical Inq. L. 97 (2022).