Comparative and Foreign Law


Recognition and Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought?

Linda J. Silberman, Aaron D. Simowitz

In Daimler AG v. Bauman, the Supreme Court confirmed what it had only hinted at previously—that general jurisdiction over a corporation is limited only to a state which can be regarded as its “home.” In doing so, the Court brought the United States closer to the rest of the world in its approach to general jurisdiction. What may have been overlooked, however, is the impact of Daimler on actions brought to recognize and enforce foreign country judgments and foreign arbitral awards if the Daimler standard is applied in that context. Some courts have already done so. Professors Silberman and Simowitz offer an overview of the present jurisdictional regimes for recognition and enforcement actions with respect to both foreign judgments and arbitral awards. Their own analysis concludes that a jurisdictional nexus should be required for recognition and enforcement but that the context of recognition and enforcement presents unique differences from a plenary action. Thus, they argue that Daimler needs to be tailored to fit such actions. Professors Silberman and Simowitz also examine various alternative bases of jurisdiction—property-based jurisdiction, specific jurisdiction, and consent—that may be pressed into service if Daimler is extended to recognition and enforcement actions, and find both promise as well as limits in those alternatives.

The Grudge Informer Case Revisited

David Dyzenhaus

This Article explores a decision by a German postwar court—the Case of the Grudge Informer—which was central to the 1958 debate between H.L.A. Hart and Lon L. Fuller. The author argues that Fuller’s presentation of the problem in the case is better than Hart’s both as a descriptive matter and as a matter of promoting a morally responsible resolution—not least because Hart’s method of candor falls short of illuminating the complexities inherent in such cases. In particular, Hart’s positivist conception of law does not appreciate how judges in such cases have to contend with a connection between the doctrinal level and the fundamental level. At the former, judges have to resolve issues of substantive law such as the issues of criminal law in the Grudge Informer Case. At the latter, judges confront the question of what Fuller called their “ideal of fidelity to law,” since they are faced with questions about what legality—the principles of the rule of law—requires. The confrontation between such ideals is not, as Hart suggested, one that takes place in an extralegal political space. Rather, it is firmly within the scope of both law and the philosophy of law.