Academic Corner: Recognition and Enforcement of Foreign Provisional Orders in the United States

After nearly two years of editing process, my first academic article is officially published. Recognition and Enforcement of Foreign Provisional Orders in the United States: Toward a Practical Solution is now available on the website of the University of Pennsylvania Journal of International Law.

The main thrust of the article is straightforward: just as much as there is a mechanism through which the United States enforces the final judgments rendered by foreign courts, there needs to be a mechanism to do the same with provisional orders by foreign courts, such as orders attaching money, because there is no such mechanism currently other than certain specific areas of the law (discussed further below.) Although the article goes through the reasons why this is necessary, I would think this is not a particularly controversial argument. Much of the reason why this has not yet happened inertia rather than an active opposition from any country.

One thing I learned in the process of writing this paper was that, in fact, there are already mechanisms that allow enforcement of provisional orders where the need seems urgent. For example, there are bilateral or multilateral treaties that allow enforcement of provisional orders in the case of drug crimes or securities fraud. See, e.g., U.N. Convention Against the Illicit Traffic in Narcotic Drugs and Psychotic Substances art. 7, 28 I.L.M. 492 (1989); Treaty on Mutual Assistance in Criminal Matters Between the United States and Switzerland, U.S.-Switz., May 23, 1973, 27 U.S.T. 2019; MOU Between the United States and Switzerland, U.S.-Switz., Aug. 31, 1978, 43 SEC Docket 14; Agreement XVI of the Swiss Bankers’ Association with Regard to the Handling of Requests for Information from the SEC on the Subject of Misuse of Insider Information, U.S.-Switz., July 14, 1982, 43 SEC Docket 155. 

In the civil litigation front, there is a long string of family court decisions that allow enforcement of foreign provisional orders, which are usually orders providing for alimony payments. Pacanins v. Pacanins, 650 So. 2d 1028 (Fla. Dist. Ct. App. 1995) (holding that a Venezuelan court order should be enforced in the U.S.). See also Cardenas v. Solis, 570 So. 2d 996 (Fla. Dist. Ct. App. 1990); Nahar v. Nahar, 656 So. 2d 225 (Fla. Dist. Ct. App. 1995); Wolff v. Wolff, 389 A.2d 413 (Md. Ct. Spec. App. 1978); Yoder v. Yoder, 330 A.2d 825 (Conn. Super. Ct. 1974) (providing more examples of various state courts recognizing foreign provisional orders).

The last part got me interested in international family law, which apparently is the only area of civil litigation in which there is a routine enforcement of provisional orders. It appears that international family law faces the same, difficult questions that face any international litigation involving millions of dollars, and handles them with relative ease. Why can't every international civil litigation be run like international family law litigation? That will be the topic for one of my next papers.