International Litigation: Where to Sue and How to Enforce a Judgment

A U.S. .ourt has personal jurisdiction over a foreign defendant only when the defendant has sufficient minimum contacts with the forum state, and the forum non conveniens doctrine allows a court to decline jurisdiction in favor of a more convenient foreign forum. The forum chosen at the outset of an international litigation matter largely determines whether any judgment can be enforced where the defendant holds assets. International dispute resolution and international litigation counsel should confirm which forum has jurisdiction, which forum's law favors the client, and where any judgment can be enforced.

A forum selection clause designates the court or arbitral tribunal that will resolve cross-border disputes, and courts generally enforce these clauses unless enforcement would be fundamentally unfair or contravene strong public policy. Choice of law clauses designate the substantive law governing the contract, and parties must select governing law carefully because statutes of limitations, remedies, and default rules differ significantly across legal systems. International business contracts and international litigation counsel should confirm whether forum selection and choice of law provisions reflect the client's enforcement expectations.

Service of process on a foreign defendant must comply with the Hague Service Convention when the defendant is located in a member state, and noncompliance can result in dismissal or the invalidation of a default judgment. The Convention requires service through a designated Central Authority in the receiving state, a process that typically takes three to six months, and some countries prohibit direct mail service and require strict Central Authority compliance. Federal court trial and international litigation counsel should confirm that service complied with the Hague Service Convention.

Cross-Border Discovery and the Hague Evidence Convention

The United States has no general treaty requiring foreign courts to recognize its judgments, so enforcement depends on local law in the country where enforcement is sought, which typically requires showing proper jurisdiction, adequate notice, and the absence of fraud. The comity doctrine encourages courts to give effect to foreign laws and judgments, but comity is discretionary and foreign courts may refuse enforcement when the judgment conflicts with local public policy. International trade disputes and international litigation counsel should confirm which countries hold the defendant's assets.

A foreign party who obtains a judgment abroad and seeks to enforce it in the United States must bring a recognition action in federal or state court, and the applicable standard varies by state. Most U.S. .tates have adopted the Uniform Foreign-Country Money Judgments Recognition Act, which requires courts to recognize foreign judgments unless the judgment was rendered without due process or the foreign court lacked jurisdiction. International risk and investigations and international litigation counsel should confirm whether a statutory ground for non-recognition applies.

International arbitration under ICC, ICSID, LCIA, or AAA-ICDR rules avoids the jurisdictional uncertainty and enforcement unpredictability of cross-border court proceedings. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, to which more than 170 countries are parties, requires member states to enforce arbitral awards, making arbitration far more enforceable globally than court judgments. Arbitration and mediation and international litigation counsel should confirm whether arbitration or court-based litigation better serves the client's enforcement requirements.

When a judgment debtor holds assets in multiple countries, the judgment creditor may need to initiate parallel enforcement proceedings in each jurisdiction simultaneously to prevent asset transfer before enforcement is complete. Pre-judgment asset freezing orders, known as Mareva injunctions, can be obtained in the United Kingdom, Hong Kong, and other common law jurisdictions to preserve assets pending resolution of the underlying international litigation. Cross-border class actions and international litigation counsel should confirm whether pre-judgment asset freezing relief is available where the debtor holds assets.