Document Type

Article

Publication Date

1999

Keywords

International litigation, Foreign judgments, Reciprocity, Territorial jurisdiction, Hague Treaty, Treatymaking, EEC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968), Brussels Convention

Disciplines

European Law | International Law | Jurisdiction

Abstract

The United States' law of territorial jurisdiction in civil cases is a mess. Many commentators, here and abroad, have said so for a long time. The United States' treatment of foreign judgments, however, stands in contrast. As a well-behaved member of the international community of nations, the United States eagerly gives appropriate respect to foreign judgments, despite sometimes getting no respect in return.

Now, ongoing negotiations at the Hague have generated a prospect for an international agreement on the reciprocal treatment of foreign judgments. The envisaged treaty would ensure mutual respect of judgments among contracting countries, but it would also require agreement on a sensible scheme of jurisdiction. Such a treaty would produce the great benefit of rationalizing U.S. jurisdictional law on the international level. Ironically, this treaty would hand lawmakers a bigger, but hidden, benefit in providing the opportunity to untangle the jurisdictional law applied at home. Rethinking jurisdiction through the process of treatymaking would permit the United States to improve its own interstate law. The Hague negotiations thus represent a major legal development, but they are proceeding without much professional awareness.

Part I of this Article describes the probable Hague treaty. Part II then paints the big picture of potential reform for U.S. jurisdictional law not only on the international level, but especially on the domestic level. However, as Part III discusses, the reform might raise constitutional questions. The reform probably would authorize jurisdiction formerly prohibited to U.S. courts and would push federal law into domains that state law currently occupies. This Article closes by arguing that the treatymakers' and Congress's powers are broad enough to work the reform.

Publication Citation

Kevin M. Clermont, "Jurisdictional Salvation and the Hague Treaty", 85 Cornell Law Review (1999)

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