I can speak only for the American system of justice. Normally in a suit within the U.S. there are issues of the court's jurisdiction over the person of the Defendant and the subject matter. There is also the issue of choice of law to be applied by the court. Generally it is easier to sue the American Defendant in his native state than to have to rely on the long arm statute of the Plaintiff's state. However, as with all rules there are exceptions. If the Defendant has engaged in conduct that would render him liable under the long arm statute, the Plaintiff may sue him in the Plaintiff's native state.

While the chances are slim, it is not impossible to find one's self as a Defendant in the court of a foreign nation. The question is how easy would it be to enforce the foreign judgment in the American courts. With respect to the 50 states of America, it is a very easy matter. The Full Faith and Credit Clause of the U. S. Constitution requires that all 50 states respect the judgments of the sister states. It is simply a matter of formulating a court procedure to do so.

The court is mainly concerned with whether the court rendering judgment had jurisdiction over the person of the Defendant and that his right to due process has been properly observed. If the Defendant has filed an appearance in the case he has submitted to the jurisdiction of the forum court, and all that is necessary is for the Plaintiff to get a verified copy of the judgment from the forum court and to file it with the court of the Defendant's native state. It then becomes a fully enforceable judgment of the court of the Defendant's native state.

If the Defendant has not filed an appearance in the forum court, and judgment has entered against him after default for failure to appear, it is necessary for the Plaintiff to file another suit in the court of the Defendant's native state to enforce the judgment. The inquiry in this subsequent suit is largely confined to an inquiry as to whether the Defendant's rights to due process were observed. I have filed these cases several times. It is an easy and expedited process, and the Defendant has few defenses available to him.

With respect to orders and judgments entered by courts of foreign nations, they are enforceable through the American Courts to the extent that international law or treaties permit. I have seen it work in reverse. I have seen a child custody order in a divorce entered by the Connecticut Superior Court in the Judicial District of Milford ,Connecticut enforced by a German Court. The child was taken from her mother in Germany and delivered into the care of her American Father. It is not impossible to find yourself on the reciprocal end of a foreign court's judgment.  It can be a two way street.

There are pretrial motions that can be filed to contest jurisdiction, but if the case were pending in India, the motion to challenge jurisdiction would most likely have to be filed and argued in the Indian court. Otherwise I would assume that the judgments of the Indian court would have to comply with the above mentioned American law to be enforced (i.e. inquiry as to jurisdiction and observance of the American Defendant's due process rights.)

If enforcement of the foreign judgment were sought in the federal courts the nature of the inquiry would depend upon whether the court had jurisdiction based upon diversity of citizenship (in which case state law may be controlling depending upon whether procedural or substantive law is applicable). If the court's jurisdiction were based on federal question ( e.g. federal statute or treaty) federal law would apply to the inquiry.

There is also the matter of choice of law to be applied to the case. It is not impossible that the court of one state may need to try a case using the law of another state. It is an area known as Conflicts of Law.  Each state has its own rules about deciding which state's law is applicable. This is true of the law of foreign nations also. For example in Connecticut when the validity of a contract is at issue the proper law to be applied is the law of the state in which the contract was formed..an issue as to performance by the parties is to be determined by the law of the state in which performance was to take place...with respect to torts it is the law of the state in which the tort was perpetrated which is to be applied.

Consequently, if a Connecticut abstractor entered into a contract with a foreign national which contract was formed in the foreign nation, it is conceivable that the Connecticut court may need to apply the law of the foreign nation. So, even if you do not find yourself being tried in a foreign court, it is possible that you may be subject to foreign law applied by the American court. When I was in law school I remember reading about an Iranian-American Attorney that insisted on filing all of his court pleadings written in some Iranian dialect with the U S District Court for the Northern District of Illinois. He drove the court crazy, but they let him do it.

The issues of jurisdiction and conflicts of law are a real can of worms when opened. This would especially be true in the arena of international law. Normally a Defendant abstractor would turn the matter over to his/her e&o insurer, and the insurer would select the defense law firm. Most policies provide that payment of the Defendant's legal expenses are to be deducted from the proceeds of the policy. The more work performed...the fewer proceeds there are to pay the claim. I would have to assume the legal expenses for an American citizen to defend in an Indian court would be astronomical.  to post a reply: login - or - register