Cross-Border Disputes With US Parties

Jurisdiction and forum

US courts exercise personal jurisdiction only within the limits of due process: a company is generally subject to general jurisdiction where it is incorporated or has its principal place of business, and to specific jurisdiction where the claim arises from its activities in the forum State. Federal courts hear disputes between US and foreign parties under their diversity (alienage) or federal-question jurisdiction, and may dismiss in favour of a more appropriate foreign forum (forum non conveniens). The United States is a party to the HCCH Service Convention, which governs service between it and the Convention’s other Contracting States.

Discovery

Discovery in US litigation is broad — documents, electronic records and depositions of witnesses — and is often decisive in choosing or resisting a US forum. Under 28 U.S.C. § 1782, a federal district court may order a person who resides or is found in its district to give evidence for use in a proceeding before a foreign or international tribunal; since ZF Automotive US, Inc. v. Luxshare, Ltd. (2022), that excludes private commercial arbitration.

Arbitration

The United States has applied the New York Convention since 1970, with the reciprocity and commercial reservations, through Chapter 2 of the Federal Arbitration Act (9 U.S.C. §§ 201–208). An application to confirm an award falling under the Convention must be made within three years after the award is made (§ 207), and the court must confirm it unless one of the grounds for refusal in the Convention applies. The United States is also a party to the Inter-American (Panama) Convention, implemented by Chapter 3 of the Act.

Foreign judgments in the United States

No federal statute or treaty governs the recognition of foreign judgments: it is a matter of state law, and most states have adopted the Uniform Foreign-Country Money Judgments Recognition Act of 2005 or its 1962 predecessor. Under the 2005 Act, a court must refuse recognition if the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with due process, or by a court without personal or subject-matter jurisdiction, and may refuse it on further grounds, including lack of notice, fraud and public policy. An action to recognise a judgment must be brought within the shorter of the period during which it remains effective where it was given and fifteen years from when it became effective there.

US judgments abroad

Outside the United States, a US judgment is enforced under the enforcing country’s own law — usually by an action on the judgment in common-law countries, or by exequatur or reciprocity-based recognition elsewhere — with local counsel. Awards of punitive or multiple damages can meet resistance: in the United Kingdom, the Protection of Trading Interests Act 1980 bars the enforcement of judgments for multiple damages, such as treble damages. See foreign judgment enforcement.

Freezing assets

US federal courts do not grant pre-judgment freezing injunctions over a defendant’s assets in claims for money damages (Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 1999); pre-judgment attachment is available under state law in defined circumstances. After judgment, US courts allow broad discovery into the debtor’s assets, including assets abroad (Republic of Argentina v. NML Capital, Ltd., 2014). Freezing orders from courts in other countries can complete the strategy against assets outside the United States — see asset recovery.