Recognition and Enforcement of Foreign Provisional Orders in the United States: Toward a Practical Solution

Abstract

Currently, the United States law lacks a coherent mechanism for providing recognition to, and allowing enforcement of, provisional orders issued by a foreign court. This paper argues for establishing a system for recognition and enforcement of foreign provisional orders in the United States. Such a system would confer three main benefits: (1) enhanced efficiency of transnational litigation in the U.S. courts; (2) appropriate allocation of judicial resource between U.S. and foreign courts that would promote both constitutional rights and judicial efficiency, and; (3) creation of the U.S.-led ecosystem of private international law. This paper then examines the three possible paths of establishing the system of foreign provisional order recognition: judicial, legislative, and treaty-based. Although all three paths are viable, this paper argues that the treaty-based option provides the maximum flexibility necessary to reap the triple benefits of having a legal mechanism for recognition and enforcement of foreign provisional orders.