We are presently working on a case where a New York law firm obtained a judgement against a Korean debtor in a New York court and the attorney failed to serve the defendant under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). This New York lawyer, wrongfully, believed that all that was needed to be complied with is service under the requirements of New York law.
Too many local New York attorneys think in this fashion, because of the lack of experience in international law and the lack of an ability to proactively consider all potentialities. This sad reality happens way too often and, often, leads to clients with judgments and no way to collect on the judgments.
Simply, in most cases, if you do not serve the defendant under the protocols set out in the Hague Service Convention, you will be unable to collect on the judgment abroad. The judgment you paid for is useless. Most countries, in the world, have signed onto the Hague Service Convention and, thus, require these protocols to apply. For countries that have not signed onto the Hague Service Convention – other protocols will, likely, apply.
Enforcement of U.S. Judgments in Foreign Courts/Countries
Most foreign courts with require the following to enforce a New York judgment in its foreign court.
- “Judgment” Must be Rendered by a Foreign Court: Most foreign courts recognize “default” judgments when a Korean plaintiff was properly served, had the opportunity to be heard and the judgment was a final and conclusive judgment. Fo most courts to recognize a New York judgement/order as a valid judgment the plaintiff:
A. Must have had an opportunity to be heard;
B. Must have been properly served; and
C. The judgment must be a “final and conclusive judgment.”
- Recognition of the Foreign Court: Most major countries, broadly, recognize the “international jurisdiction” of all jurisdictions within the United States.
- Proper Service of Process: In most cases service must be via an international treaty on the service of process called the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
- Reciprocity:The foreign court, usually, requires the United States to recognize the judgment of the foreign court. U.S. recognizes most foreign courts.
- Public Policy: The judgment, in most foreign courts, must, also, not violate the public policy of the country. For example, some countries do not recognize punitive damage.
Enforcing judgments against non-American parties requires an international attorney with experience abroad to be involved at the commencement of the New York ligation. Don’t loose the opportunity to collect on a debt because of the lack of an experienced New York-based lawyer with international legal experience.
*Sean Hayes may be contacted at: SeanHayes@ipglegal.com.
Sean Hayes is co-chair of the Korea Practice Team and Chair of International Practice Group at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw. He has, also, received the highest rating by AVVO and other legal rating services.
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