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Recognition of Foreign Administrative Acts in the United States

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Book cover Recognition of Foreign Administrative Acts

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 10))

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Abstract

The legal rules governing recognition in the United States of foreign administrative acts vary sharply depending on whether the foreign administrative act in question is covered by a mutual recognition agreement (MRA), which seeks to eliminate duplicative assessments in international trade of conformity of goods and services with applicable product and service standards, or similar treaties. Such agreements and their implementing legislation and regulation give a clear legal basis for recognition to the extent that they cover foreign administrative acts though in fact many do not. Otherwise, recognition is based on the common law, which provides for recognition--chiefly enforcement of money judgments or collateral estoppel on common issues, but excluding fines and penalties--in order to avoid duplicative litigation in situations in which there has already been a full and fair opportunity to litigate all relevant issues in connection with the issuance of the foreign administrative act. The common law is subject to exceptions to protect crucial U.S. public policies, but the act of state doctrine extends the scope of administrative acts that may be granted recognition in the United States by eliminating the defense of public policy in certain cases.

This report is a substantially revised presentation of the national report for the United States on this topic originally submitted to the General Reporter and published in the collection of U.S. national reports. See Reitz, J.C. 2014. Recognition of Foreign Administrative Acts. In American Journal of Comparative Law, 2014, vol. 62 (Supplement), pp. 589–615.

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Notes

  1. 1.

    5 U.S.C. § 551(1)(2012).

  2. 2.

    The Fifth Amendment’s due process clause in the federal Constitution applies to the federal government, and the Fourteenth Amendment’s due process clause applies to the states.

  3. 3.

    Cf. Nigel, G.F., Satish S. 2002. German Legal System and Laws. New York: Oxford University Press, 2002, pp. 3–585, at 259. ISBN 0199254834 (administrative act is “an order, decision or other sovereign measure . . . taken by an authority for the regulation of an individual case in the sphere of public law and directed at immediate external legal consequence.”). For an explanation of how the federal APA definitions may be read to support this claim of similarity, despite the literal wording which seems to belie the assertion, see Asimow, M., Levin, R.M. 2009. State and Federal Administrative Law. 3rd ed. St. Paul, Minnesota: Thomson/West, 2009, pp, 1–779, at 200. ISBN 978-0-314-15928-1.

  4. 4.

    See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (contract with the government to fulfill functions that the government would otherwise provide itself does not subject the private party to the strictures of the Constitution, even though it receives most of its funding from governmental sources, is subject to extensive regulation, and could be said to be performing a public function).

  5. 5.

    5 U.S.C. § 551 (7)(2012).

  6. 6.

    Id. §§ 557, 701–706 (2012).

  7. 7.

    Id. §§ 554, 556, 557 (2012).

  8. 8.

    See id. § 706(2)(E)(“substantial evidence” test for review of fact-finding in formal process); Camp v. Pitts, 411 U.S. 138 (1973)(judicial review based on agency record, not on new evidence). Moderate deference to agency interpretations of the law, especially—but not only—those imposed through formal adjudication and notice-and-comment rulemaking, is required wherever the relevant statute is ambiguous or vague or otherwise can be read as delegating policy-making discretion to the agency. See 5 U.S.C. § 706(2)(A)(2012)(“arbitrary and capricious” general standard for review of rationality of agency action); Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984); United States v. Mead Corp., 533 U.S. 218 (2001).

  9. 9.

    See, e.g., Pension Benefit Guaranty Corporation v. LTV, Inc., 496 U.S. 633 (1990).

  10. 10.

    Also called “execution.”

  11. 11.

    Although there are some summary proceedings for the enforcement of sister state judgments and a form of registration of federal judgments in districts other than where it was rendered, there is no special procedure like that of exequatur in many civil law countries for registering judgments of foreign nations for enforcement in U.S. courts, but the provisions for summary judgment may make the U.S. procedure roughly just as expeditious. Ehrenzweig, A., Jayme, E. 1973. Private International Law. Leyden: A.W. Sijthoff. 1973, vol. 2, pp. 1–338, at 59–60. ISBN 379-00204-3; Hay, P., Borchers, P.J., Symeonides, S.C. 2010. Conflict of Laws. St. Paul, Minnesota: West, 2010, pp. 1–1764, at 1446. ISBN 978-0-314-91160-5.

  12. 12.

    Ehrenzweig and Jayme, supra n. 11, at 59–60; Hay, et al., supra n. 11, at 1436–39.

  13. 13.

    Compare Ehrenzweig and Jayme, supra note 11, at 58–66 (recognition includes non-preclusive forms) with Hay, et al., supra note 11, at 1442–51(discussing preclusion only).

  14. 14.

    Strauss, T.D. et al. eds. 2011. Gellhorn and Byse’s Administrative Law. New York: Foundation Press, 2011, pp 1–1508, at 1194. ISBN 978-1-59941-429-4.

  15. 15.

    5 U.S.C. § 703 (2012) (last sentence). For the limits on judicial review, see text at supra note 8.

  16. 16.

    Ehrenzweig and Jayme, supra n. 11, at 72–73; Hay, et al., supra n. 11, at 1470–78.

  17. 17.

    Hay, et al., supra n. 11, at 1472–73 (arguing that a better policy explanation for the decided cases has to do with preclusion).

  18. 18.

    For one example, see the Regierungspraesident case cited in note 30, infra.

  19. 19.

    For one example, see Petition of Breau, cited in note 30, infra.

  20. 20.

    E.g., Palavra v. INS, 287 F.3d 690 (8th Cir. 2002) (Croatian passport is not preclusive proof of Croatian citizenship; immigration authorities must consider asylum applicants’ claims that Croatian passport was granted to them on humanitarian grounds because they are ethnic Croats from Bosnia whose own country would not grant them a passport to come to the United States for emergency medical treatment); Kinfe v. Ashcroft, 121 Fed. Appx. 675 (8th Cir. 2005) (citing with approval but distinguishing Palavra); Walker v. Ashcroft, 112 Fed. Appx. 243 (3d Cir. 2004)(same). But see Ruffert, M. 2012. Recognition of Foreign Legislative and Administrative Acts. In Wolfrum, R. The Max Planck Encyclopedia of Public International Law. New York : Oxford University Press, 2012, vol. 8, pp. 1–1138, at 683, ¶ 8. ISBN 9780199291687. (arguing that only international courts should be permitted to refuse preclusive effect to a nation’s determinations of citizenship of persons, corporations, vessels or aircraft).

  21. 21.

    Estin, A.L. 2012. International Family Law Desk Book. Chicago : American Bar Association, 2012, pp. 1–301. ISBN 9781614383178 (administrative registration regimes for opposite-sex and same-sex couples in Europe (at 39); administrative registration of nonjudicial divorce such as Muslim talaq or Jewish get (at 63); see also infra note 23 (claim that civil register from civil law tradition is recognized in the United States)). Some family law issues take us outside the common law because of the force of international treaties. See Estin, op.cit., at 237–38, 245 (Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, once ratified by the United States, will require enforcement of support orders from other participating states, whether from courts or administrative bodies, but subject essentially to the same requirement for a full and fair opportunity to litigate as under the common law).

  22. 22.

    Riggs National Corp. v. Commissioner, 295 F.3d 16, 20–21(D.C. Cir. 2002).

  23. 23.

    For argument that the decision in the Riggs case in fact does not seem to have made use of the presumption but instead treated the evidence of the foreign administrative act as mere evidence, see Reitz, supra article note, at 614–15. Professors Ehrenzweig and Jayme cited the following family law cases as examples showing that the “civil register of civil law countries now has found recognition even in the United States”: Sousa v. Freitas, 10 Cal. App. 3d 660, 667, 89 Cal. Rptr. 485, 490 (Ct. App. 1970); Caruso v. Lucius, 448 S.W.2d 711 (Tex. Civ. App. 1970); Johnson v. Berger, 273 N.Y.S.2d 484 (Fam. Ct. 1966). Ehrenzweig and Jayme, supra note 11, at 72–73 nn. 49, 52. It is, however, difficult to tell how these courts treat the evidence because the evidence of the foreign act affecting family status was either unopposed or the status in question does not appear to have been at issue in these cases.

  24. 24.

    Scheppele, K.L. 2011. Global Security Law and the Challenge to Constitutionalism after 9/11. In Public Law, 2011, vol. 2011, 353, at 370–71. For the similar concerns raised by MRAs, see Section 6b, infra.

  25. 25.

    See, e.g., Federal Rules of Civil Procedure § 24 (courts); APA, 5 U.S.C. § 555(b)(2012)(agencies).

  26. 26.

    March 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231.

  27. 27.

    The hearsay rule does not apply in agency adjudication, so documentary evidence can be used for testimony from absent witnesses but will be evaluated in light of the usual concerns about the trustworthiness of such written evidence. For exceptions to the hearsay rule to facilitate use in court of documentary evidence of foreign administrative acts, see Federal Rule of Evidence 803(8).

  28. 28.

    19 Code of Federal Regulations § 201.16(d)(2013).

  29. 29.

    Ehrenzweig and Jayme, supra note 11, at 72 (leading comparative treatise of conflicts of laws states that “[a]dministrative acts of foreign governments are quite generally denied the status of ‘judgments’ for the purpose of recognition . . . .”); Hay et al., supra note 11, at 1520 (a leading U.S. conflicts treatise opines that although domestic administrative orders “have been treated and recognized as judgments in the interstate setting, . . . [a]dministrative acts of foreign nations . . . have generally not been treated as judgments . . . .”); Restatement (Third) of Foreign Relations Law § 481 comment f (1987)(foreign court judgments are entitled, as a general matter, to recognition in U.S. courts, but the “rule is less clear with regard to decisions of administrative tribunals”). The Restatements are not statutes. They are the attempt by a prestigious non-governmental body of scholars, judges, and practitioners, the American Law Institute, to state the current law in specific areas; they have the authority that the writings of well-respected legal scholars have in the U.S. legal culture.

  30. 30.

    See, e.g., Regierungspraesident Land Nordrhein-Westfalen v. Rosenthal, 232 N.Y.S. 2d 963 (N.Y. App. Div. 1962)(opinion of New York trial court enforcing repayment order of German public authority against person whom German authority had found to have fraudulently obtained compensation for Nazi persecution), cited in Restatement (Third) of Foreign Relations Law § 481 reporter’s note 5 (1987); Petition of Breau, 565 A.2d 1044 (N.H. 1989)(New Hampshire Supreme Court upheld N.H. administrative agency’s revocation of N.H. teaching license for lack of good moral character on the basis of prior Canadian administrative decision revoking Canadian teaching license on the same grounds; Canadian agency determination applied by collateral estoppel), cited in Restatement (Second) of Conflict of Laws § 98 comment b (1971).

  31. 31.

    For discussion of the uncertainties surrounding both of these rules, see Reitz, supra article note, at 604–07.

  32. 32.

    See, e.g., Petition of Breau, 565 A.2d 1044, 1049–50 (N.H. 1989)(invoking both of these analogies).

  33. 33.

    Both of the cases cited in note 32, supra, emphasize this point.

  34. 34.

    Restatement (Second) of Judgments § 83(2)(a), (b), and (d)(1982).

  35. 35.

    Restatement (Third) of Foreign Relations Law of the United States § 482(1)(a)(1987); see also Restatement (Second) of Conflict of Laws § 98, comment d (1971)(quoting Hilton v. Guyot, 150 U.S. 113, 202(1895)); id. §§ 115, 117 (defenses of fraud and public policy, respectively).

  36. 36.

    See, e.g., cases cited in note 32, supra.

  37. 37.

    Wehrli v. County of Orange, 175 F.3d 692 (9th Cir. 1999) (cited in Pierce, R.J., JR. 2010. Administrative Law Treatise. Austin, Texas: Wolters Kluwer Law & Business, 2010, vol. 2, pp. 735–1400, at 1133, § 13.3. ISBN: 9780735580497).

  38. 38.

    Restatement (Second) of Judgments § 83(2)(a), (b), and (d)(1982).

  39. 39.

    See cases cited in note 30, supra.

  40. 40.

    Hay, et al., supra note 11, at 1517 (footnote omitted); see also Parsons & Whittemore Overseas Co., Inc. v. Societe Generale de l’Industrie du Papier (RAKTA), 508 F.2d 969, 974 (2d Cir. 1974) (public policy defense applies only to “forum state’s most basic notions of morality and justice”).

  41. 41.

    Ehrenzweig and Jayme, supra note 11, at 73; HAY et al., supra note 11, at 1514–15 (critical of these exceptions, except for criminal law).

  42. 42.

    Hay et al., supra note 11, at 1476–78, 1514–15.

  43. 43.

    Id. at 1477–78.

  44. 44.

    See Uniform Foreign Money-Judgments Recognition Act (UFMJRA), promulgated in 1962 and adopted in 31 states, and an updated version, the Uniform Foreign-Country Money Judgments Recognition Act (UFCMJRA), promulgated in 2005 and adopted in about 20 states. Current information and texts of Acts are available on the Uniform Law Commission website, http://www.uniformlaws.org/Default.aspx. For the exemptions for penalties, see UFMJRA §§ 1(2) (1962); UFCMJRA § 3 (2005).

  45. 45.

    Restatement (Third) of Foreign Relations Law § 483 comment b (1987)(exclusion for agency fines and penalties).

  46. 46.

    Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964).

  47. 47.

    W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., 493 U.S. 400, 406 (1990) (quoting Sabbatino, 376 U.S. at 423).

  48. 48.

    22 U.S.C. § 2370(e)(1) & (2) (2012).

  49. 49.

    But see Banco Nacional de Cuba v. Farr, 388 F.2d 166 (2d Cir. 1967)(upholding constitutionality).

  50. 50.

    For a more detailed discussion of limitations on the act of state doctrine, see Bradley, C.A. and Goldsmith, J.L. Foreign Relations Law. New York : Aspen Publishers, 2011, pp. 1–847, at 108–16. ISBN 978-1-4548-0684-4.

  51. 51.

    See, e.g., Riggs National Corporation v. Commissioner of the Internal Revenue Service, 163 F.3d 1363 (D.C. Cir. 1999).

  52. 52.

    Ruffert, supra note 20, ¶6, at 685. Ruffert argues, however, for a customary international law obligation on the part of all states to respect a state’s recognition of nationality. Id. ¶ 8.

  53. 53.

    For the substance of these arguments, see Reitz, supra article note, at 597–99. For the language in statutes, executive orders, and ABA resolutions, urging the U.S. government to expand its use of MRAs and facilitating the use of MRAs, see id. at 599–600.

  54. 54.

    Barron, M.R. 2007. Creating Consumer Confidence or Confusion? The Role of Product Certification Marks in the Market Today. In Marquette Intellectual Property Law Review, 2007, vol. 11, issue 2, pp. 413–442. (detailed description of roles private conformity assessment bodies play in the United States and Europe). U.S. federal agencies are directed by OMB Circular A-119 to participate with private organizations in developing standards, a process that is overseen by the Interagency Committee for Standards Policy. Office of U.S. trade representative. 2011 Report on the Technical Barriers to Trade. [online] Accessible from https://ustr.gov/sites/default/files/TBT%20Report%20Mar%2025%20Master%20Draft%20Final%20pdf%20-%20Adobe%20Acrobat%20Pro.pdf [hereinafter: USTR 2011 Report].

  55. 55.

    See, e.g., Horton, L. 1998. Mutual Recognition Agreements and Harmonization. In Seton Hall Law Review, 1998, vol. 29, issue 2, pp. 692–735, at 717.

  56. 56.

    See text supra at note 4.

  57. 57.

    McCarthy, M.T. 2011. International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91–1. [online] Accessible from http://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf; Administrative Conference of the United States (ACUS). 2011. Recommendation 2011–2016, International Regulatory Cooperation. [online] Accessible from http://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf [hereinafter ACUS Recommendation 2011–2016]. ACUS is a federal administrative agency that functions as a law reform commission for federal administrative law.

  58. 58.

    See text in Section 1f, supra.

  59. 59.

    See, e.g., Shapiro, S.A. 2002. International Trade Agreements, Regulatory Protection, and Public Accountability. In Administrative Law Review, 2002, vol. 54, issue 1 pp. 435–458; see also Merrill, R.A. 1998. The Importance and Challenges of “Mutual Recognition.” In Seton Hall Law Review, 1998, vol. 29, pp. 736–755, at 746–54 (types of MRAs arguably exempt from notice-and-comment rulemaking procedures); Feldman, M.L. 2013. The Domestic Implementation of International Regulations. In New York University Law Review, 2013, vol. 88, pp. 401–438 (detailed description of domestic implementation of Basel Accords; arguing that despite international agreement, domestic U.S. notice-and-comment rulemaking procedure still meaningful).

  60. 60.

    See, e.g., Lesser, C. 2007. Do Bilateral and Regional Approaches for Reducing Technical Barriers to Trade Converge towards the Multilateral Trading System? In OECD Trade Policy Papers, 2007, No. 58, at 20–21 and 56–60. Accessible from http://dx.doi.org/10.1787/051058723767 (surveying mutual recognition of conformity assessments concerning technical standards in 82 bilateral and regional trade agreements, among which are U.S. agreements with Australia, Chile, Israel, Jordan, Morocco, and Singapore).

  61. 61.

    See text at note 54, supra.

  62. 62.

    USTR 2011 Report, supra note 54, at 26.

  63. 63.

    Horton, supra note 55, at 722 (FDA had over 50 agreements with its counterparts in other countries in 1998); Shapiro, supra note 59, at 453–57 (overview of the equivalency process with examples from U.S. Department of Agriculture and FDA).

  64. 64.

    Horton, supra note 55 (passim); Merrill, supra note 59, at 740 (FDA’s MRAs are “contracts for service” because mainly about providing information about conformity inspections).

  65. 65.

    Horton, supra note 55, at 722 (for over quarter century, FDA has had agreements with counterparts in Canada and Sweden providing for mutual acceptance of results of inspections for compliance with standards of good manufacturing practice).

  66. 66.

    McCarthy, supra note 57, at 20; ACUS Recommendation 2011–2016, supra note 57, at 4.

  67. 67.

    Horton, supra note 55, at 729–32.

  68. 68.

    See text at notes 22–23, supra.

  69. 69.

    Verdier, P.H. 2011. Mutual Recognition in International Finance. In Harvard International Law Journal, 2011, vol. 52, pp. 55–108, at 82–87; see also Wei, T. The Equivalence Approach to Securities Regulation. In Northwestern Journal of International Law & Business, 2007, vol. 27, pp. 255–300, at 263–82 (examples of unilateral determinations of equivalence by U.S. regulators in accounting, finance, and securities law).

  70. 70.

    Verdier, supra note 69, at 88–108.

  71. 71.

    49 U.S.C. § 44,704 (2006)(amended 2012).

  72. 72.

    For the FAA’s BASA program, see Federal Aviation Admin. Generic Steps for Obtaining a Bilateral Aviation Safety Agreement —Implementation Procedure for Airworthiness. [online] Accessible from http://www.faa.gov/aircraft/air_cert/international/bilateral_agreements/media/BASAProcess.pdf.

  73. 73.

    Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, February 17, 1978, art. 5 (1), 1341 U.N.T.S. 3. For implementation of this obligation, see Act to Prevent Pollution from Ships, 33 U.S.C. §§1904 (b) (2012).

  74. 74.

    Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Mar. 3,1973, arts. III, IV, V, 27 U.S.T. 1087, 993 U.N.T.S. 243. For implementation, see the Endangered Species Act of 1973, 16 U.S.C. §§ 1538 (c)(1)(2012).

  75. 75.

    October 5, 1961, 527 U.N.T.S. 189, T.I.A.S. 10072. The entire text of the treaty is printed in the Advisory Committee’s Notes to Federal Rule of Civil Procedure 44.

  76. 76.

    The Apostille Convention has not attracted much scholarship. Sherry, K.D. [Student Note]. 1998. Old Treaties Never Die, They Just Lose Their Teeth: Authentication Needs of Global Community Demand Retirement of the Hague Public Documents Convention. In John Marshall Law Review 1998, vol. 31, pp. 1045–1084. Some of this student note’s strongest criticisms of the convention would seem to be mooted to the extent U.S. states have adopted the Electronic Apostille program. See text at next note.

  77. 77.

    See Hague Conference on Private International Law, Operational e-Registers by State. [online] Accessible from http://www.hcch.net/index_en.php?act=text.display&tid=146 (last visited February 25, 2014) (seven U.S. states listed as having implemented electronic apostille provisions).

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  1. College of Law, University of Iowa, Iowa City, IA, 52242-1113, USA

    John C. Reitz

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  1. Full Professor of Administrative Law, Universidade da Coruña, Coruña, Spain

    Jaime Rodríguez-Arana Muñoz

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Reitz, J.C. (2016). Recognition of Foreign Administrative Acts in the United States. In: Rodríguez-Arana Muñoz, J. (eds) Recognition of Foreign Administrative Acts. Ius Comparatum - Global Studies in Comparative Law, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-319-18974-1_18

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