Is That Even Legal?
Is That Even Legal?
Cross-Border Judgments, Plainly Explained
Is that even legal? It's a question we ask ourselves on a daily basis. We ask it about our neighbors, we ask it about our elected officials, we ask it about our family, and sometimes we ask it to ourselves. The law is complex and it impacts everyone all the time. And that's why we are here. I'm Attorney Bob Stuhl, and this is season five of the Worldwide Podcast that explores that one burning question is that even legal? Let's go. Today's guest on the show is Marshall Hunt. Marshall, welcome to the show.
SPEAKER_01:Hey, thanks, Bob. Thanks for having me back.
SPEAKER_00:So one of the things that goes through my mind, because I I love business, right? And I just I'm really curious about business stuff because as a lawyer, we see all sorts of business transactions. In order to be business friendly in this global economy, you have to figure some things out. Like how do you enforce an agreement? If I got an agreement between company in Brazil and company in America, how do you enforce that agreement? You know, whose laws apply? And when you're moving stuff, money, and stuff and contracts over these borders, again, whose law applies? Who how does he enforce this agreement? How do you make money in the considerable risk that takes place? And it's a lot more complicated than a lot of people want to believe. In fact, it's really complicated, in my opinion. And I wanted to have you on because you know about this stuff. Yeah, I mean, I happen to know that you've worked on some of the most seminal seminal cases in Arizona on enforcement of foreign judgments. That is, how do you make someone pay? And whose law applies, things like this. There was a recent case that came up, and it was an interesting case. There's this guy named Ija, and he lives in Nigeria, and he lends his cousin in Arizona$100,000. And his cousin is Ali, and Ali pays him back nearly six grand and then stops payment. And it was for a business that Ali wanted to start in Arizona. And so Ija he says, Hey, I'm gonna sue you, and he sues him in Nigeria. And Ali, for whatever reason, doesn't defend but, or does defend and loses, I don't know which. And they bring that judgment to Arizona, and they say, and the Arizona Court, that is, the Arizona Court of Appeal says, yeah, that that judgment's enforceable here in Arizona. There's no need to riddle relitigate these issues. Do I got the facts right?
SPEAKER_01:Yeah, you got the facts basically right. Uh, you know, I know you know about Nigerian princes and how you gotta watch out for Nigerian princes. This is uh you gotta watch out for your Nigerian cousins, too, I think, in this case. So yeah. Yeah, Ija and Ali. Uh it's an interesting case. I I did a little bit of uh I can't help myself, so you know, because so Arizona courts, Arizona's court references the Nigerian court, the high court of the federal capital territory in the Abuja Judicial Division holding at Jabi. So I get on Google Maps and I'm looking up this court. It's sort of got this dirt road that leaves up, leads up to the court. It's got this awesome uh uh lady justice, but sort of the African version uh statue that's out in front of the court. Pretty cool court. Um not a place I would want to litigate. Now I'm just I'm just emptying my bag on all my stupid internet research that I did on you here, but um, not a place I would want to litigate because apparently they've had uh issues with quote deplorable and decrepit court facilities that hamper justice there. Uh the Nigerians have the uh the uh the unfortunate reality that they adopted some of the British uh legal trappings like wearing wigs, and so they're sweating through their wigs, they've got inadequate power, they've got overloaded dockets, they've got smell from toilets that's coming up. So not a great court. But anyway, yeah, this uh so each uh apparently they have a uh kind of a default proceeding where you sort of submit this affidavit on a liquidated debt and you say, you know, I've I've got this debt, uh uh it's owed, there's not really any defense to it. And then you can serve the defendant. Service was authorized by email here uh to the cousin that lives in Arizona, and uh then then um if you don't respond with your own affidavit saying, oh no, I do have a defense, then then uh then the plaintiff can basically get a default judgment.
SPEAKER_00:So we have a similar procedure in um other states. They call it a confession of judgment. We don't recognize that procedure in Arizona, but uh I know that uh Maryland recognizes it, because I litigated a case, multiple cases in Maryland. And um, but yeah, we have a similar procedure. I mean, it's fascinating because and that's one of the problems of doing business with the United States is there's 50 different procedures, 50 different laws, 50 different procedures, uh, plus territories. You got 50 different countries you're dealing with in one single country. Um anyways, I interrupted. Keep going. No, no, you're good.
SPEAKER_01:Yeah, so um two thoughts on that. One is it's fascinating the the reach of the influence of I'd say United States uh legal trappings, or maybe if we want to be generous to our uh cousins across the pond, the the con sort of common law tradition that descends from England. But um, you know, to read some of these Nigerian procedures, it didn't sound that different to you know what you would find in most states in the US, like you say.
SPEAKER_00:So um, no, and that makes sense, right? Because Nigeria was colonized by by Britain, we were colonized by Britain. Um the British legal system is well regarded throughout the world as as a uh fair system, and so why wouldn't you keep the mo some of that legal system? I mean, um, and Nigeria obviously did.
SPEAKER_01:Right. So so eja gets this judgment, he feels strongly enough about trying to collect that he finds an attorney in Arizona, and the question is, you know, how are you going to enforce your judgment? And it's sort of this philosophical question of are we in the United States going to, through one way of looking at it, you know, do other countries dirty work sort of by enforcing their judgments, or are we going to, on another way of looking at it, waste our time and our resources re-litigating issues that competent courts and other jurisdictions have already looked at? And for the most part, the tradition in the US is you know, the fun phrase that I like, international comedy, meaning we want to play nice with other countries and enforce their judgments, I think both as a means of promoting international relations and from a selfish perspective as a means of not again, not wasting our time relitigating issues that have already been decided. So to uh help resolve the issue you pointed out, which is what do you do when you have 50 different states? Uh, the very helpful uh Council on Uniform Laws, I believe they're called, has uh drafted and promulgated the Uniform Foreign Country Money Judgment Recognition Act.
SPEAKER_00:And just Oh my gosh, the sexiest, sexiest thing I've ever heard in my life.
SPEAKER_01:And of course, freaking because it can't be easier, not to not to be confused with the Uniform Foreign Uniform Enforcement of Foreign Judgments Act, right? Which also has the word foreign, but is actually talking about different states, not different countries. So to differentiate it, this uniform law that is relevant to this case is the Uniform Foreign Country Foreign Country Money Judgments Recognition Act or UFKM J Raw, is how I pronounce the uh acronym there. But uh so this uh is a uniform statute. It's passed in, I want to say two-thirds of the states, about including fairly recently in the in the 2010s, Arizona. Um, and so what does it take?
SPEAKER_00:I mean, so Arizona has a statute, and they got two sets of statutes. How to recognize judgment between Arizona, between the United States, different different states, how to recognize our sister states' judgments. Okay, that's one thing. The other one is involves forum countries. How do you recognize judgments? And this is really important, right? Because we want, as Arizonans, we want people to know that if they do business with an Arizonan, our courts aren't going to act like idiots. We're gonna be reasonable, right? We we're gonna be reasonable, we'll protect our citizens, but we're not gonna we're not gonna jump out and and um jump in front of a moving truck to protect our our citizens. We're we're gonna be reasonable. They want to know are contracts enforceable in Arizona? And are will they be will Pete will Arizonas be respectful of our country's judgments? But how do you know? How do you know which countries get recognized, which countries we like and which countries we don't like?
SPEAKER_01:Yeah, so it's uh it's interesting because Arizona on that question actually breaks with the sort of modern trend of most states, including the trend of the uh stock uniform act. So the stock uniform act has universally applicable rules that just say, you know, if the if there was basically United States uh concepts of due process and proper jurisdiction, and this is not a judgment for uh certain uh areas that we don't think port well from country to country, like a tax or penalty or domestic relations types judgments. We don't want to be enforcing those because social mores vary quite a bit um in those areas. But if it's not one of those things and they have due process, most states under the Uniform Act say we'll enforce it. Arizona uh and a minority of other jurisdictions has an additional uh requirement called reciprocity. And because that's a uh not a requirement everywhere, and it's an extra requirement above what's in the Uniform Act, a lot of these foreign country judgment recognition act cases end up turning on this question of reciprocity. So I was involved um in sort of the first case that really applied Arizona's uh version of the Uniform Act, uh litigated for several years, went up on appeal. We were successful in showing that the uh foreign country at issue in our case, which is the Netherlands, uh, meets this reciprocity requirement. And the basic requirement is that we in Arizona, in Arizona, are going to recognize a foreign country's judgment only if they would recognize our judgments through a sort of similar process to our act. And so, you know, in the in the Netherlands case, one of the big issues was okay, Arizona's reciprocity provision says that the foreign country has to have enacted or adopted a reciprocal law. Okay, so if this if the framers of the statute use the words enact and adopt, what do those refer to? Do those only refer to statutes? Do those refer to basically the equivalent of judge-made common law? Might they refer to treaties or other, you know, uh procedure? Yeah. And Arizona's courts, uh, in keeping with our argument, took a broad view of that concept of reciprocity, again, in keeping with this issue of international comedy. We want to play nice, we want to tell the world that Arizona is open for business, and so we are gonna recognize um a broad uh array of types of laws that other countries might use to enact or adopt reciprocal laws in their home uh countries. And so in the EG V Ali case, that was one of the most interesting uh parts to me is you know, you read through the the background of this case, and when the court in this case is applying um the reciprocity requirement, it describes the equivalent law that um Nigeria has, and it's frankly very similar to the Uniform Foreign Country Money Judgment Recognition Act. Um, and so it's Arizona's law. Exactly, exactly. So Eja, the plaintiff, he gets an affidavit from a Nigerian attorney that lays out what the process is in Nigeria. Um, Arizona Rules of Procedure 44.1 allows the court to basically determine foreign law through any relevant material or source. And so the court takes that affidavit, says, yep, sounds good. That establishes the requirements of foreign law. And I find that uh Nigeria has a reciprocal law that meets that uh requirement under Arizona's Foreign Country Money Judgment Recognition Act law.
SPEAKER_00:Yeah, yeah, and that and that it's interesting because first of all, I never given a second thought to Nigerian law. Never, period, right? I suppose that I knew that they had courts, never really considered it. Everyone's got courts, right? And so, but yet what Arizona's doing is it's saying it's investigating into this other country's legal system and then saying, does this look right to us? And if it looks right, great. And so if you want to win, if you're the defendant and that judgment's against you, if you want to win, you got to say, no, no, no, no, no, no, no, no, no. I couldn't even defend myself in that country because that's what due process is, right? Due process is did I get a chance to defend myself? And if I did, then I had due process. If I don't have a chance to defend myself, then there's no due process. And that could, that could be, you know, no due process is something like uh the court just said, yeah, without notice to me, yeah, you're getting judgment. This judgment's against Bob Sewell, you're done. Or they didn't hear any of my arguments, they wouldn't listen to my ru listen to my facts. They're like, well, you don't understand because Marshall Hunt, he right he employs 10,000 people in this town. So yeah, we're not gonna rule against Marshall Hunt. That would be a failure of due process, too, right? And so here we we we have this inquiry, and it's kind of interesting.
SPEAKER_01:And uh Yeah, so the the you know, our our statute, so it has the top-level question of does the statute apply to this judgment? You know, is it a judgment from a country that has a reciprocal law? And is it a judgment that doesn't have, you know, it's not for tax or marital relations and things like that. And then there's all these exceptions that the court looks at. And some of them are mandatory exceptions for things like you're uh describing due process. Um, and then some of them are more uh permissive discretionary uh exceptions for things like, you know, can you show that the judgment was based on fraudulent evidence and things like that? So yeah, the the analysis is always gonna be fact and country specific intensive, and it's you know, uh, we're lawyers, so we're kind of lame, but uh it's interesting to me to read through it. So for instance, you know, one of the disputed issues here was did Ali, the Arizona cousin, get proper service because he was served by email. Um, and so the court looks at the question of service by email and said, Well, in in Arizona, we allow service through alternative means other than personal service when it's impracticable, including by email. And it cites our rule, cites a case that has allowed alternative service by email. So the court says, do process isn't offended by if you're served by email instead of a process server handing you the documents, you know, in person. And so, okay, you know, and and then the court looks at uh, you know, was there personal jurisdiction uh in in uh in Nigeria? And the court says, Well, under the facts of this case, go for it.
SPEAKER_00:Yeah, yeah, and personal jurisdictions. In other words, did the guy who borrowed the money have enough contact with Nigeria that he should expect that he'd be sued in Nigeria, right? And the the court said, Yeah, yeah, he he's been to Nigeria before and he discussed his butt he went to Nigeria, discussed business, and and uh somehow procured a lot of people.
SPEAKER_01:It's where this loan occurred. It occurred in Nigeria, so he should expect to be uh sued in Nigeria.
SPEAKER_00:Let me ask you a question. Because I let me why do we care? I mean, do I care really? I mean this is a nerdy conversation about law, right? This is this is why lawyers bore people on uh at a dinner party and why people say, What type of lawyer are you? And then Marshall Hunt says, Yeah, you know, uh I'm an expert in uh enforcement of foreign judgments. Yeah. And then the the eyes glaze over and they're like, Well, I was hoping you'd say criminal defense and have some good good stories, right? But no, why do we care about Ija and Ollie in that decision? What doesn't matter?
SPEAKER_01:I guess the first answer, if I'm really honest in my heart of hearts, we don't care. Um come on. But but here's what here's why we care. Here's why we care, here's why we care. Why should we care? How about that? Yeah, how why should we care? Why should we care? So we care one, because you know, I I think that from a broad political perspective, the idea that the United States is a global hegemon is overstated somewhat, but it's it's I think indisputable that the United States has a great uh degree of influence around the globe. And I think that uh it's consonant with that position in the world to play nice with our neighbors. And going back to that issue of international comedy, it helps our relationships with other countries if their prominent citizens uh know that they can uh come to the United States and get fair treatment. Um I think the second reason why we care is that Arizona businesses or excuse uh uh United States businesses are in many instances with the larger companies international businesses. And if those businesses go around the globe, and like as you started out our conversation with, they're doing uh a great great deal of commerce with other countries. I think that a lot of this international relations stuff goes down to the old uh schoolyard principle of what goes around comes around. And if uh we want our businesses to be treated nice in other places, we better treat um other businesses nice here.
SPEAKER_00:And then Yeah, Arizona does Arizona um exports nine billion dollars of goods every year. Um at least nine billion to Mexico, Mexico alone, just just Mexico, and they import from Mexico almost twelve billion. Twelve billion. That's that's a huge percentage of Arizona's revenue and um commerce is with Mexico, our cousin our our uh our um you know sister country to the you know to the south of us. There's so much commerce with Canada that we have special laws in our books regarding how to deal with Canadians and insurance companies with Canadians and loans with a can with Canadians. And what we will even in my area, we even recognize in Maricopa County a Canadian probate. We come down and we give we give special recognitions to Canadian probates. You know, uh we don't survive very well without these countries in Arizona.
SPEAKER_01:Right, right. So there, you know, there's there's all those sort of high-minded uh reasons, and then I've mentioned it already, but I think the the sort of realist in me also recognizes that it's just a uh a recognition that if someone else already did a good enough job, we don't want to re-litigate cases here, jam up our courts, jam up our time, and potentially screw things up by having a Nigerian judgment that says one thing and an Arizona judgment that says something else. Uh, we'd rather just, if at all possible, rubber stamp the work that someone else already did and let that be good enough. So uh I think that's uh underlying a lot of these judgment recognition statutes is just the practical reality of not wanting to uh recreate the wheel.
SPEAKER_00:Marshall, thanks for coming on the show. Hey, no problem. If I wanted to get a hold of you to talk about some of these uh foreign judgment issues or any other commercial issue or real estate issue, how would I get a hold of you?
SPEAKER_01:Uh yeah, just look me up uh on our website, www.davismiles.com.
SPEAKER_00:Thanks, Marshall. Thanks for listening to the podcast. Is that of illegal is now listened to in a hundred countries and available on virtually all podcast platforms. Leave us a review, send us some show ideas, and do so at producer at evenlegal.com. Don't forget, as smart as we sound and as lovable as we are, we are not your lawyers. And we are not giving you legal advice. But if you need some legal advice, get stuck. There's some great lawyers out there, and we are always ready to help. See you next time.