International Business Law Advisor

Insights on International Litigation & Transactions

Enforcement of Foreign Judgments. The Basics.

By Santiago A. Cueto on Posted in International Litigation

Last week I received a call from the general counsel of a corporation looking to enforce a foreign judgment here in the U.S.  I explained that the process is straightforward, assuming the foreign judgment does not conflict with certain principles, which I’ll explain below.

The same also generally holds true for the enforcement of U.S. judgments in a foreign country. While the process is straight forward, the individual laws of each country will govern the enforceability of the U.S. judgment.

Enforcement of Foreign Judgment in the U.S.

In the U.S., recognition and enforcement of foreign judgments is usually a matter of state law.  More than half of the states have adopted some version of the Uniform foreign Money-Judgments Recognition Act (“UFMJRA”). Other states generally apply factors that are similar to those set out in the UFMJRA.  Under the UFMJRA, recognition of a foreign judment will be denied if:

  • The judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirement of due process of law;
  • The foreign court did not have personal jurisdiction over the defendant; or
  • The foreign court did not have subject matter jurisdiction.

Enforcement of a foreign judgment is generally accomplished by filing a new lawsuit based on the original foreign judgment and obtaining a U.S. judgment that can then be enforced in the same way as any other judgment.

Recognition of U.S. Judgment in Foreign Country

The recognition of a U.S. judgment in a foreign country will be determined by the domestic laws of the foreign country.  As a general rule, a U.S. judgment will only be enforced if there is a showing that the debtor received proper notice of the proceeding and the court that rendered the judgment possessed jurisdiction over both the debtor and the subject matter of the dispute.

An additional requirement that is often included as a condition of recognition and enforcement of a judgment is that the country where the judgment was rendered also grants reciprocity to the foreign couintry by recognizing its judgments.

 

 

 

Service of Process in Brazil, Part II. What You Need to Know.

By Santiago A. Cueto on Posted in International Litigation

Miami Business attorney & lawyerWe are thrilled to present this guest post by Gregory S. Barnett, who is a foreign legal consultant with Angelico Advogados in Sao Paulo, Brazil.

International investment in Brazil is on the rise. As economic struggles persist in the United States, anxious US investors are looking south for new opportunities. And while most countries are struggling, Brazil has weathered the storm with prospects for continued growth in the years to come.

With the World Cup in 2014 and the Olympic Games in 2016, all eyes are now turning to Brazil.

An expected consequence of the increase in international investment in Brazil is an increase in multijurisdictional disputes. Where a legal process commenced in the United States involves a party domiciled in Brazil, service of process on the Brazilian party must be made using a letter rogatory.

The procedure is extremely formal, time consuming and expensive. But in most cases it is the only way that US courts will deem service of process as being properly given.   Continue Reading

U.S. Exports Get Huge Boost with Passage of Free Trade Agreements. Finally.

By Santiago A. Cueto on Posted in Business Transactions, International Investments

International business attorneys & lawyersAs reported all over the media today, the U.S. Congress cleared free-trade agreements with South Korea, Colombia and Panama, bringing an end to years of stalemate.

The Agreements, the biggest trade deals since 1994,  promise to result in the export of billions of dollars of U.S. goods and boost hundreds of thousands of American jobs.

Whichever side of the political fence you sit, speaker of the House John Boehner issued a poignant statement about the passage of the trade agreements:

“With passage in the House and Senate today, a key component of the Republican jobs plan will be sent to the President for his signature. These significant trade pacts will provide new opportunities for American small businesses, farmers, and manufacturers to expand and hire more workers.

And frankly, it shouldn’t have taken this long for it to happen. While a Democrat-controlled House sat idle, other nations expanded their trading ties, and American competitiveness suffered. These common-sense agreements reverse that trend, level the playing field, and provide American job creators access to new customers and markets to sell their products.”

The U.S. Chamber of Commerce also praised the deals and urged policymakers to pursue a more aggressive trade agenda. The Chamber’s CEO, Tom Donohue, said in a statement:

Passing these trade agreements represents a victory for American workers, American competitiveness, and American leadership. It means we will immediately stop losing jobs to our competitors who have cut their own deals and we can start creating hundreds of thousands of new jobs for Americans.”

It’s great to see at least one area where centrist Democrats and Republicans can agree to take action that could benefit the American economy in the long run.

These long-overdue trade deals will improve the American economy and signal to these three trading partners that the United States is open for business.

What do you think?

 

U.S. Court Rules China an “Adequate Forum.” Really, It Is. Or Not?

By Santiago A. Cueto on Posted in International Litigation

Source: China Today

For all the exuberant talk about China being among the world’s greatest economic powers, with western marketers clamoring to get their products in front of China’s skyrocketing middle-class, the reputation of its legal systems has lagged behind considerably.

Whether China’s legal system is adequate or not, the arguments are all over the place. For example, contrast the recent Epoch Times post, Five Unspoken Rules of China’s Legal System with the South China Morning Post article, Legal System Less Arbitrary but Still a Work in Progress.

I mention this because I just read an excellent post on the Drug and Device Blog about a U.S. 4th Circuit decision issued just days ago finding that China is an adequate legal forum. Continue Reading

Service of Process in Brazil. The Basics.

By Santiago A. Cueto on Posted in International Litigation

In the past several months, there’s been a dramatic increase in the number of Brazil-related legal  questions I’ve received here in Miami, where our firm’s international law practice is based.

With Brazil-South Florida annual trade exceeding $13 billion and Brazilian visitors spending $1 billion annually in Miami, it’s really not all that surprising.

From exporting products, registering intellectual property or resolving business disputes, there’s been great interest in many areas of law that concern Brazil.

Increase in Disputes Between Parties Located in Brazil and U.S.

Also not surprising, with the surge of economic activity there’s also been a dramatic increase in the number of lawsuits filed between parties located both in the U.S. and Brazil. Continue Reading

Success in China is Built on Relationships. Just Ask General Motors.

By Santiago A. Cueto on Posted in Business Transactions, International Investments, Uncategorized

A few weeks ago, I received a call from a prospective client, Mr. X,  looking to expand his business and enter the China market. He wanted to know how best to go about forming this new venture.

It was obvious he had done his research. Mr. X discussed whether it was best to form a Wholly Foreign Owned Entity (WFOE), Representative Office (RO), Joint Venture (JV) or other foreign invested enterprise (FIE). (For unsurpassed detail into these and other China business forms, run, don’t walk to my friend Dan Harris’ China Law Blog).

I explained to Mr. X that, while all the formalities are important, it was crucial that he understood that success in China means a lot more than simply setting up a business and hoping that your widgets will sell in Guangzhou, Shenzhen or Tianjin.

I touched on this concept in an earlier post, How to Avoid International Disputes. First Be Good to Your Suppliers. The central idea was that you needed to build solid relationships to achieve any level of success in China. Continue Reading

Supreme Court Limits “Stream of Commerce” Jurisdiction Against Foreign Manufacturers.

By Santiago A. Cueto on Posted in Uncategorized

Given the globalization of the world economy in the past several decades, there was a huge upswing in the number of products liability lawsuits filed in the U.S. against foreign manufacturers.

These foreign defendants were generally subjected to the jurisdiction of U.S. courts under the “stream of commerce” theory articulated in the seminal case Asahi Metal industry.

This theory generally holds that a court could exercise jurisdiction over a foreign manufacturer of a product so long as the manufacturer knows or reasonably should know that its products are distributed through a “stream of commerce” or national distribution system that might lead to those products being sold in any of the fifty states.

Until recently, all a plaintiff needed to allege to gain personal jurisdiction was show that a foreign manufacturer knew or should have known that its product(s) could reach the forum state. Continue Reading

Registering Your Patent in International Markets. Not Always Easy.

By Santiago A. Cueto on Posted in Intellectual Property, Uncategorized

Earlier this week I received a call from a prospective client looking to register his intellectual property in several international markets. His call was prompted by a post I wrote several months ago, How Do I Register My Patent, Trademark or Copyright in a Foreign Country?

In the post, I presented a general overview of registering your intellectual property overseas. While registering your patent, trademark or copyright in a foreign country is a relatively straight forward process, problems can and do often arise.

U.S. online retail giant Amazon.com’s experience in the European Union presents an excellent example of problems that can arise in applying for intellectual property protection overseas.

As reported in the PC World article Europe Rejects One-click-to-buy Amazon Patent Application,  the European Patent Office (EPO) last month rejected Amazon.com’s appeal to be granted a patent for its “one-click” ordering system. Continue Reading

How to File a Lawsuit Against a Foreign Government: The Swiss Perspective.

By Santiago A. Cueto on Posted in International Litigation

I’m thrilled to publish this excellent guest post submitted by Yves Klein of Monfrini Crettol & Partners in Geneva, Switzerland.

I recently read Santiago Cueto’s entry on this blog titled How to File a Lawsuit Against a Foreign Government. The Basics, on which I commented on LinkedIn. Santiago kindly offered me to write this contribution on the Swiss perspective to this issue.

Like the United States of America, Switzerland respects the sovereignty of foreign States, of which immunity is a part under public international law. Continue Reading

What Multinational Corporations Need to Know About New Anti-Corruption Rules in the UK and China.

By Santiago A. Cueto on Posted in Corporate Governance

Several months ago, I received a call from the general counsel of a multinational corporation concerned about new anti-corruption laws that are now part of the international business law landscape.

He was particularly concerned with the recently enacted UK Bribery Act, which he characterized as the FCPA “on steroids.” While the UK’s Bribery Act certainly has quite a bite, I explained that anti-corruption enforcement is tightening all over the world—particularly in Asia.

It’s not unusual for me to get a call like this. For multinational corporations, managing liability risks under varying anti-corruption laws is a highly complicated process.

This is particularly true for companies with business operations in developing economies where history, customs and culture influence day-to-day business. Continue Reading