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Foreign Judgments: Is “System Fairness” Sufficient or Is “Specific Fairness” Also Required for Recognition and Enforcement?

Geoffrey C. Hazard, Jr. * and Michael Traynor**

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The Supreme Court has not yet resolved a constitutional question that is central to the recognition and enforcement of foreign country judgments: Is it sufficient that the judgment is rendered in a judicial system that is fair, or must it also meet a test of “specific fairness” under core principles of due process?

Core principles of due process include an impartial tribunal, opportunity to be heard, right to the assistance of counsel of the party’s choice, and due notice. Opportunity to be heard includes the right to present or openly suggest relevant evidence and to present legal contentions. These principles are also recognized internationally as essential to fair procedure. For example, a judgment rendered by a judge who is bribed by one party should not be entitled to recognition and enforcement in the United States even if the foreign judicial system in which it is rendered is otherwise fair.

The core principles whose observance by a foreign court is essential to recognition of its judgment as specifically fair do not necessarily include certain principles that courts in the United States apply customarily, and that they, as well as lawyers and others, may consider important in domestic cases. Examples include cross-examination of witnesses by a party’s lawyer rather than examination by a magistrate; jury trial; and discovery. In an increasingly globalized world and under precedents that call for comity, our courts should recognize and enforce foreign judgments that meet the dual tests of system fairness and specific fairness even if they depart from some procedures that we have grown accustomed to.

The Recent European Court of Human Rights Judgment in the Finogenov Case: Towards an Esoteric Humanization of Warfare

Solon Solomon*

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Introduction

In mankind’s history, war is a fact. The same is true for the brutality that accompanies it. The inclusion of human rights law as a separate field applying in tandem with international humanitarian law (IHL)[1] particularly vibrated efforts to legally regulate warfare and gave rise to a discourse on the humanization of IHL.[2]

This humanization of warfare, originally referring to the protection of combatants, has been expanded to include also civilians, in order to return in our era back to combatants.[3] In contemporary international law, an increasing number of commentators argue that military commanders must take into consideration also their troops’ human rights in their operational decisions, and that state authorities have to assure the human rights of enemy combatants, including those termed “unlawful,” are respected.[4]

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