International Business Law Advisor
Our blogroll is very intentionally limited to blogs on China or, at minimum, those with a decided China focus. If we were to open it beyond these confines, I have no idea what the new confines would be, our blogroll would get too big, and we would almost certainly leave out deserving blogs.
Keeping our blogroll limited does have its downsides, including that many great blogs we read regularly are left out. Over time, we will be highlighting some of these blogs because we believe many of our readers will have an interest in those blogs as well. I am starting this "series" by highlighting the International Business Law Advisor blog, written by Santiago Cueto, a Miami (technically, Coral Gables) based international lawyer who focuses on international litigation and arbitration. The blog's byline is "identifying trends in international business law," and that is exactly what it so deftly does. For example:
-- "Hey Brazil: It'sTime to Ratify Those Bilateral Investment Agreements," where he rightly points out how Brazil's rising economic and political status signals it is time for Brazil to start signing bilateral trade agreements:
However, it [Brazil] lags behind all other Latin American countries in one important respect: it has yet to ratify any bilateral investment agreements (BITs). These agreements protect international investors when disputes arise in host countries. In light of Brazil’s recent good fortune, the time has come for Brazil to rethink its approach to BITs and implement measures to protect foreign investors.
-- "Florida Court Refuses to Enforce $97M Foreign Judgment Against Dole," highlighting the refusal of a Florida Federal Court's refusal to enforce a Nicaraguan judgment against Dole Foods because the law on which it was based violated international standards.
-- "Alien Tort Claims Act: A Threat to U.S. Corporations Operating Overseas?" This post posits that corporations are being sued as surrogates for countries that violate human rights.
In addition to being thoughtful and crisply written, its design is first rate as well. I have it on my RSS feeder and if you have an interest in international law generally, so should you.
Comments (2)
Read through and enter the discussion by using the form at the endLouis Brands Savage - November 7, 2009 1:54 PM
That is a great blog, and I read a post there that I have strong opinions on, but he doesn't allow comments over there, so I wonder if you might post my comment here.
This is in regards to the enforcement of Chinese judgments in the Unites States, which Mr. Cueto referenced in his recent post on the Dole case.
Judgments from China are presumptively enforceable in the United States. However, they should not be, for the time being. The reason is not the non-existence of a treaty or lack of reciprocity, rather the reason Chinese judgments should not be enforced is because they may have been gotten under a system that does not provide fair tribunals, even if it does largely comport with international due process, and US defendants are unable to defend themselves against specific instances of unfairness under the current law.
The Uniform Foreign Money Judgments Act provides only three mandatory defenses to the enforcement of a foreign judgment. Aside from jurisdictional defenses, a party opposing enforcement may only try to show that the Chinese judicial system is unfair or that it does not provide for international due process. A party may not challenge the actual procedures used in the judgment at issue.
I don't know why you say that it is generally believed that US courts will not enforce Chinese judgments due to the lack of a treaty or reciprocity. The UFMJA does not require either. And, as the Hubei case demonstrates, it is up to the defendant to show that the Chinese judicial system is unfair. Failing that, the judgment is enforceable.
As you point out in the Dole case, defendants can use State Dept. reports to show the unfairness of a foreign system, but they have little else at their disposal, and the State Dept. report on China is, currently, woefully light on judicial system details.
I'm currently writing an article on this exact topic, and my thesis is that states should amend the UFMJA to allow for a greater examination of the fairness and due process aspects of individual judgments from China rather than requiring judges to appraise the entire Chinese judicial system each time a judgment from China comes before them.
Also, there are significant fairness problems inherent in the Chinese judicial system, so failing an amendment of the Act, US judges should refrain from enforcing Chinese judgments for the time being.
As far as I have found, the Hubei case is the only mainland Chinese judgment that has been enforced in the US, and the defendant did not even attempt to show any evidence that the Chinese judicial system was unfair. I think if a subsequent defendant made a stronger (or even any) showing on the fairness issue, that defendant might win non-enforcement quite easily.
Santiago A. Cueto - November 8, 2009 6:17 AM
Mr. Savage, thanks for your comments. I could write at great length, but I’ll try to be brief given the forum. You pose an excellent point. Mainland China judgments, strictly speaking, can and should be suspect for the time being. While the rendition of unfair judgments remains widespread, we are beginning to see “green shoots” of fairness (to borrow from economic vernacular) sprout up in isolated instances. Based on what was presented to the California court in the Hubei case, I believe the judgment rendered in China was one of these green shoots; it at least appeared to be fair. It’s important to take into account that the defendant in the Hubei case did not seek an appeal at any time, although it was permitted under Article 249 of Part Four of PRC Civil Procedure Law. Because a defendant chose to rest on his rights, does not render the proceeding unfair.
I stated that it is generally believed that US courts will not enforce Chinese judgments in the context of the enforcement of judgments in federal courts vs. state courts. I should have made the distinction clearer.
I agree that it is unfortunate that the current State Dept. Report on China lacks any specificity regarding the judicial system in China. However, I think the Hubei court did a good job in examining the rendition of the individual judgment in question. Why the defendant RHC failed to raise any fairness issues (if they existed in this particular case) either in China or the US is beyond me. The court was left with no choice but to rule in favor of the plaintiff.
By the way, I do allow comments on my blog. However, the blog service provider was invaded by spambots causing them to shut down the comments feature for the weekend. I'm told it should be up and ready to go today.