Enforcement of Judgments 2025 Comparisons

In the United States, there are a wide variety of disclosure or “discovery” tools available to judgment creditors, enabling them to compel production of documents, written disclosure of information and witness testimony. (See Fed. R. Civ. P. 69(a)(2).) Discovery can target debtors and non-parties alike and while pre-judgment asset discovery is limited, the scope of what information may be appropriately sought post-judgment is quite broad. The effective use of these tools can encourage judgment debtors to settle their judgments without the need for formal proceedings. Thus, the United States is an attractive location for creditors seeking to further clarity on the scope and scale of debtor’s assets.

The specific forms of discovery available in the United States vary somewhat from jurisdiction to jurisdiction, as the federal courts and the courts of each US state have their own slate of discovery tools. Nevertheless, while the formal terminology can vary depending on the jurisdiction, the discovery tools available to judgment creditors in all jurisdictions generally include: (i) depositions, where a third party or party witness is required to answer questions to opposing counsel under oath; and (ii) requests for production, by which parties can compel the provision of (non-privileged) documents for opposing counsel review. In addition, each US state has its own discovery options, which may afford creditors additional paths for collecting relevant information, and each state’s local discovery options may be used in federal courts located within that same state.

Creditors can use these tools to investigate a variety of debtor assets and property, including the following.

• Tangible and Intangible Assets – Creditors can uncover information concerning assets which might be subject to attachment. Notably, this discovery is not limited to assets in the United States (Republic of Argentina v NML Capital, 573 U.S. 134 (2014)). Creditors can also compel judgment debtors and other persons with knowledge to reveal information concerning the existence of virtually any property owned by the debtor or in which the debtor has a beneficial interest. In addition to assets such as real property and vehicle, this includes a debtor’s contract rights, including licences and leaseholds, as well as any assignable debts owed to the judgment debtor.
• Financial Accounts – Creditors can obtain information from US bank and securities accounts of the debtor or held at US financial institutions and their customers or other contractual counterparties, as well as compel banks to hand over debtors’ bank account records. (See Nike, Inc v Wu, 349 F. Supp. 3d 346 (S.D.N.Y. 2018).)
• Wire Transfers – Within the context of post-judge asset discovery, creditors can discover details regarding wire transfers conducted into, out of and through the United States, which includes the vast majority of wire transfers involving US dollars.

The US also has a specific statute, Section 1782 of Title 28 of the United States Code, that allows any “interested party” to a foreign proceeding to seek US-style discovery from a person or entity located in the United States.

In addition to litigation-based discovery, ownership interests in real property and certain personal property (especially vehicles such as airplanes, boats and automobiles) are maintained on local registries that may be available either online or for public inspection. Each state also maintains a registry for Uniform Commercial Code filings, which are public notices that a creditor has or had a security interest in a debtor’s personal property and may be helpful in identifying additional creditor assets. 

The specific procedures vary from state to state but, once assets are identified, creditors can issue writs of attachment and initiate attachment and other proceedings against the debtor’s assets in each US jurisdiction where such assets may be found. If debtors resist co-operation, courts can compel responses under threat of fines or incarceration for contempt of court.

Domestic judgments in the US can be grouped by the nature of relief granted and the stage of litigation at which they are issued. The Federal Rules of Civil Procedure broadly define “judgments” to include decrees that resolve a case and appealable court orders (Fed. R. Civ. P. 54(a)). Successful creditors before US courts can obtain judgments granting legal (monetary transfers), equitable (specific performance), declaratory or injunctive relief.

• Monetary Judgments – A money judgment, as its name suggests, includes an award of money damages, and may include pre- and post-judgment interest. Punitive damages may also be available. Judgments granting monetary awards can be issued through summary judgment, default or trial. Money judgments are enforced through writs of execution or their local equivalents, although additional options are often available. (See Fed. R. Civ. P. 69(a)(1).)
• Injunctive Relief – An order for injunctive relief directs a party to act or refrain from acting (Fed. R. Civ. P. 65). Orders granting injunctive relief can be issued as a preliminary injunction at the outset of the litigation process or as a permanent injunction.
• Declaratory Judgment – A declaratory judgment clarifies legal rights (Fed. R. Civ. P. 57). In the judgment enforcement context, declaratory judgments are a common vehicle for seeking to establish that an entity is an alter ego of a judgment debtor. Where appropriate, courts may issue a declaratory judgment determining the individual rights of the creditor or debtor through a hearing rather than a full trial (ibid).
• Specific Performance – As an equitable remedy, courts may compel a party to “convey land, to deliver a deed or other document, or to perform any other specific act” (Fed. R. Civ. P. 70). If the debtor fails to act, the court can order the action done by another party or “hold the disobedient party in contempt” (ibid). Judgments granting specific performance can be issued through summary judgment, default or trial.

Enforcing a domestic judgment in US federal court involves a mix of federal procedural rules and state law remedies because Rule 69(a) of the Federal Rules of Civil Procedure directs that execution proceeds according to the practice of the state where the court is located, unless a federal statute provides otherwise. Although each state has its own mechanisms, which often have different names across jurisdictions, they generally fall into the following categories.

• Writ of Execution – A writ of execution is process issued by the court to enforce a judgment for the payment of money (Fed. R. Civ. P. 69(a)). A writ of execution authorises the US Marshals Service, which is the federal agency charged with enforcing federal court judgment, to seize and sell the debtor’s non-exempt property to satisfy the judgment. In certain circumstances, a creditor may be named substitute custodian for the US Marshal with responsibility to hold and maintain the attached property until it can be sold. Courts can order debtors to transfer assets or pay writs of execution under threat of contempt of court, which typically involves fines of increasing magnitude, although incarceration may be ordered in particularly severe circumstances.
• Writ of Garnishment – A writ of garnishment can be used to obtain control of the property of the debtor that is in the possession or control of a third party. Depending on state law and practice, a writ of garnishment may be issued pre- or post-judgment. (See Fed. R. Civ. P. 64.)
• Writ of Attachment – A writ of attachment is primarily a pre-judgment process which orders the sequestration or seizure of property by the US Marshal or a designated official to preserve the property pending outcome of the litigation. Under certain circumstances, such as where ownership of an asset is disputed, it may also be invoked post-judgment. State law governs attachment procedures.
• Writ of Assistance – If a judgment contains an injunction or order for specific performance directing a debtor to perform an act and the debtor fails to comply, a creditor may seek a writ of assistance in which the court orders that the act be done by the debtor or another person appointed by the court at the cost of the debtor. Violation of such a writ is punishable as contempt of court.
• Charging Order – In many US jurisdictions, a debtor’s ownership interests in limited liability companies and limited partnerships are exempt from writs of execution, but are instead subject to charging orders. Unlike writs of execution, which allow for the sale and transfer of a debtor’s property, charging orders generally limit a creditor to a lien on the economic benefits associated with the debtor’s interests, such as equity distributions.

Although declaratory judgments do not compel action, they can be used to justify an injunction or money judgment.

If the debtor is financially unable to pay the extent of the monetary judgment, they may initiate insolvency proceedings. These proceedings typically occur in specialised bankruptcy courts. Although the debtor is most commonly allowed to maintain control of its assets or “estate”, courts have the power to appoint a trustee to manage the debtor’s operations in their stead during these proceedings. Unsecured creditors should be aware that all valid outstanding debts – including those that have not yet been adjudicated – must be addressed in bankruptcy proceedings, and that creditors share pro rata with other creditors of similar priority. As a result, creditors frequently do not recover their full monetary judgment if – after the sale of their assets – debtors cannot pay all parties fully.

Timing and costs of enforcing a judgment are highly fact-dependent and will vary widely from case-to-case and from US jurisdiction-to-jurisdiction.

Creditors seeking to compel repayment through the US courts should expect to pay court filing fees, process server fees, and for more protracted and involved enforcement proceedings, third-party discovery and document review fees. In addition, where enforcement proceeds across multiple jurisdictions, creditors may need to retain local counsel, with associated fees, in each enforcement jurisdiction.

Costs

• Court Filing Fees – These fees vary by state and federal district but are typically de minimis. For example, in the District of Columbia state courts, filing a complaint costs USD120, a temporary restraining order costs USD60, and all other motions (such as a motion for summary judgment) cost USD20. Upon successful recognition of the debt, a writ of attachment or replevin for the debtor’s assets would cost a further USD20. (See website for District of Columbia Courts: Civil Division Filing Fees (2025).)
• Process Server – The US Marshal charges for the costs incurred in executing personal service and service by mail (28 CFR § 0.114). There are also private firms that may be authorised to execute service, who may charge different rates.
• Execution Costs – The US Marshal is entitled to a commission from the sale price of any assets that it seizes and sells to satisfy an outstanding judgment. Similarly, local sheriffs, who may be engaged to conduct similar sales in state courts, are typically entitled to a commission or poundage fee.
• Local Counsel Billing – Depending on the complexity of the judgment and the forum in which the judgment is enforced, attorney fees can range significantly.

Timing

The timing to enforce a judgment depends on the size of the judgment, type of assets being enforced against and venue of enforcement, among other factors. While it is difficult to estimate, judgment creditors should expect to spend anywhere from several months to a few years on enforcement proceedings.

As discussed in 1.1 Options to Identify Another Party’s Asset Position, litigants in the United States have access to a broad array of discovery tools to determine debtor’s assets. Those tools remain in creditors’ hands after obtaining a monetary judgment and are a critical part of fulfilling a judgment. Notably, many of these tools can be exercised not only against the judgment debtor but also third parties present in the United States.

• Subpoenas – A subpoena duces tecum is a written order compelling the debtor to provide written testimony and documents (Fed. R. Civ. P. 45). They may be issued by the court or, in many instances, by the judgment creditor’s counsel. In the post-judgment context, a creditor can use a subpoena to ask banks, employers or business partners to identify account balances or provide information on the location of the debtor’s property. A person “who, having been served [with appropriate due process], fails without adequate excuse to obey the subpoena or an order related to it” may be held in contempt of court (ibid at (g)). Contempt of court carries with it a range of penalties from fines to incarceration, at the discretion of the judge and occasionally by statutory decree.
• Depositions – Any person with relevant knowledge may be compelled, via subpoena ad testificandum, to provide sworn testimony to the court and opposing counsel on assets that can be used to satisfy a judgment. Known as a deposition, while it may be written, it is traditionally undertaken orally in-person, for up to seven hours of time on the record, with counsel for both parties and a court reporter present (Fed. R. Civ. P. 30–31). A subpoena must be served on the deponent within a reasonable time before the date notice for the deposition. What is considered “reasonable” varies based on the jurisdiction and the circumstances, but is typically somewhere between 14 and 30 days.
• Judgment Debtor Examination – Generally governed by state law, a judgment debtor examination is a formal, court-supervised process in which the debtor appears under oath to disclose financial information and assets that can be used to satisfy a judgment.
• Interrogatories – In federal court, parties may serve each other written lists of questions, with full and truthful answers compelled by the power of the court (Fed. R. Civ. P. 33). Recipients of an interrogatory typically have 30 days to submit their written response, unless the court rules otherwise (ibid at (b)(2)).

• Requests for Production – Creditors may request the production of physical documents, electronically stored information (ESI), or “tangible” objects for inspection (Fed. R. Civ. P. 34). This compelled production is not limited to the opposing party, and can extend to any that may have information that could lead to the discovery of admissible evidence (ibid at (c)). Absent agreement or court order, parties have 30 days to complete production (ibid). Creditors may also request access to physically inspect property (ibid at (a)(2)). This is most typically used to inspect real property, but may be used to inspect personal property, particularly where such property is not readily movable, or original documents, where forensic analysis may be required.

Each state maintains its own rules of civil procedure, but the Federal Rules of Civil Procedure serve as an effective guide for judgment creditors’ enforcement options. For the purposes of this guide, it has generally been assumed that the proceedings are occurring in federal court.

Under Rule 62(a) of the Federal Rules of Civil Procedure, enforcement of a final judgment is automatically stayed for 30 days after entry, which allows the losing party time to challenge enforcement by filing (i) post-judgment motions before the original trial court and/or (ii) a notice of appeal. Many, but not all, states have similar temporary stays of enforcement. For example, absent an order to the contrary, New York court judgments are immediately enforceable.

Where an appeal is initiated, the judgment is not automatically stayed. Rather, the appealing party must affirmatively request a stay of enforcement, which is typically done through a motion for a stay pending appeal and the posting of an appeal bond (also known as a supersedeas bond, generally in an amount equal to the judgment amount plus post-judgment interest) (Fed. R. Civ. P. 62(b)). Parties may also seek stays of enforcement without posting a bond, but absent alternative security such requests are disfavoured.

Post-Judgment Motions

These may include the following.

• Request for New Trial or Altered Judgment – Within 28 days of the completion of a trial, debtors may request that the court grant a new trial for issues such as jury misconduct, newly discovered evidence or prejudicial errors in the procedure of the court itself (Fed. R. Civ. P. 59).
• Motion to Set Aside or Vacate Judgment – Under Rule 60 of the Federal Rules of Civil Procedure, a debtor can argue that a judgment should be set aside or vacated for the following reasons:
1. an inadvertent mistake or excusable neglect in missing a filing or service deadline (Fed. R. Civ. P. 60(b)(1));
2. newly discovered evidence that could change the case’s outcome (Fed. R. Civ. P. 60(b)(2));
3. fraud or misconduct, such as perjury or concealing material facts, that affected the outcome (Fed. R. Civ. P. 60(b)(3));
4. a void judgment due to the court’s lack of jurisdiction (Fed. R. Civ. P. 60(b)(4));
5. the judgment has already been satisfied through payment or is no longer equitable due to changes in the law (Fed. R. Civ. P. 60(b)(5)); and
6. a limited, “catch-all” reason for extraordinary circumstances (Fed. R. Civ. P. 60(b)(6)).

Any motion to set aside or vacate a judgment must be brought within a reasonable time, and in the case of motions under Fed. R. Civ. P. 60(b)(1)–(b)(3) within one year of entry of the challenged judgment.

Appeals

In the US, there is a tiered system of appeals for all domestic judgments. Parties in trial courts (known as “district courts”) may appeal to the intermediary appellate court, typically known as a “court of appeals” or the “circuit court” (if federal).

Intermediate appellate courts are generally obligated to accept an appeal. Appellate courts are unable to expand upon the trial record. Instead, appellate courts review the existing record to determine whether:

• a procedural issue worthy of overturning the lower court’s verdict occurred;
• there was an error in the application of law; or
• a party’s constitutional rights were violated.

Where the issue on appeal is purely one of law, appellate courts may apply the relevant legal standards to the existing record independently to determine if the judge made an error in their judgment (known as a “de novo” review). Deference is typically given to lower courts’ determinations with respect to questions of fact, with many appeals requiring a showing of “clear error” to overturn a decision from a lower court. And certain questions may require a finding that the lower court abused its discretion, an even higher standard of review.

If parties are unsatisfied with the first appellate judgment, they may submit a further notice of appeal to the highest court of the state and/or federal system, typically referred to as the supreme court. Except in rare instances, these courts have discretion as to which appeals they will hear. The order of this highest appellate court is final, and limited to the same procedural, constitutional and statutory interpretation questions as the intermediary appellate court.

Parties may appeal state supreme court decisions to the US Supreme Court, where the decision turns on federal law or on US constitutional grounds.

Any judgment issued by any domestic court, state or federal, may be enforced against a US debtor regardless of their location or the type of judgment. This universality of enforcement is guaranteed by the constitution, federal rules, and a uniform law adopted by 48 states, the District of Columbia, and the US Virgin Islands.

The Full Faith and Credit Clause

The first section of Article Four of the US Constitution states that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State” (US Constitution, Article IV, § 1).

Registration of Federal Court Judgments

Under federal law, any money judgment issued by one federal court, which includes the district courts, court of appeals, bankruptcy courts and the Court of International Trade, may be registered for enforcement in any federal district court. Where the judgment is final and no longer subject to review, such registration may be made as of right. Judgments on appeal may be registered in sister districts with court approval “for good cause shown” (28 USC § 1963).

The Uniform Enforcement of Foreign Judgments Act (UEFJA)

The UEFJA, finalised in 1964, offers a simple compact between states, agreed to by every state, the District of Columbia, and the US Virgin Islands, excepting only California and Vermont. States who have adopted the Act agree that any sister state judgment (ie, “any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit” in the enforcing US state) will be treated “in the same manner” as a judgment of the court of any city or county of the enforcing state (Revised Uniform Enforcement of Foreign Judgments Act, § 1–2 (1964)).

There are limited circumstances in which a sister state judgment cannot be enforced or is limited in its enforceability. Interlocutory, or non-final, judgments generally cannot be enforced, except for certain interim orders, such as preliminary injunctions. Judgments entered in violation of the debtor’s due process rights are also unenforceable. Certain states also limit the immediate enforceability of judgments entered by default or by confession in another state, and subject actions to enforce such judgments to additional procedural safeguards. Additionally, most states impose some statutes of limitation period on the enforcement of judgments, which may prevent enforcement after a specific amount of time unless the judgment timely renewed. Last, as discussed above, judgments that are stayed, voided or set aside are not enforceable.

Federal Rule of Civil Procedure 69(a)

When seeking enforcement in a federal court, parties should expect the law of the state in which the court resides to govern enforcement proceedings unless the debt is owed by virtue of a specific federal statute (Fed. R. Civ. P. 69(a)).

There is no single, uniform national registry of domestic judgments in the United States. Interested persons may search for federal judgments by party name or case number on the government-maintained court records system, PACER (Public Access to Court Electronic Records). However, identifying the judgment requires reviewing the docket for each case. While accounts are free to create, docket searches and document downloads are on a cost-basis.

States maintain their own records, often at the city or county level, and many have online portals that allow public access to the “judgment roll” or judgment database. Others, while technically open to the public, may require the use of specialised retrieval services. In addition, some court judgments from both state and federal courts are published and compiled online by private databases including WestLaw, LexisNexis and Bloomberg.

Once a judgment has been paid, the creditor is expected to file an acknowledgement of the satisfaction of the judgment with the clerk of the issuing court and any other court in which the judgment has been registered (Fed. R. Civ. P. 58). If the creditor refuses to file the acknowledegment, the debtor may file a motion with the court requesting an order that enters satisfaction (Fed. R. Civ. P. 60(b)(5)).

A judgment cannot usually be removed from the public docket. The sealing of court records is generally only permitted in exceptional circumstances related to privacy or safety concerns (Fed. R. Civ. P. 5.2).

The United States has not ratified any convention or treaty which governs the enforcement of foreign judgments, nor is there any federal statute governing them nationwide. Thus, recognition and enforcement of foreign judgments within the United States is determined on a state-by-state basis, either through state statutes or common law. (See Restatement (Third) of the Foreign Relations Law § 481 (1987).)

In the absence of a central legal authority, several states have chosen to adopt a uniform approach to the recognition and enforcement of foreign judgments. The 1962 Uniform Money-Judgments Recognition Act (the “1962 Model Act”) sought to codify the procedures established by the Supreme Court in Hilton v Guyot in 1895 for the recognition of foreign judgments (Hilton v Guyot, 159 U.S. 113 (1895)). Thirty-one states, the District of Columbia, and the US Virgin Islands originally adopted the 1962 Model Act.

The 1962 Model Act was then updated (and renamed) in 2005, adding in several key changes such as finality, conclusivity and enforceability requirements for recognition (Uniform Foreign-Country Money Judgments Recognition Act (2005) (the “Model Act or UFCMJRA”)). Twenty-nine states and the District of Columbia have adopted this updated version in their legislative codes, although states have typically refrained from adopting the Act in whole or have added their own definitions for key terms such as whether a foreign judgment is “final”. (See, eg, 42 Pa. Cons. Stat. § 22002 (2016).) The remaining states resolve foreign judgment claims through state common law.

Certain foreign judgments may not be recognised by US courts, as discussed in 3.3 Categories of Foreign Judgments Not Enforced. Additionally, state law approaches to the recognition of foreign judgments will be different, sometimes significantly, including the way in which the state law addresses reciprocity with the foreign jurisdiction as a prerequisite to recognition of the judgment and the way it analyses grounds for non-recognition of foreign judgments.

US courts will generally only recognise foreign civil judgments where the remedy is exclusively monetary. In other words, US courts will not enforce foreign judgments granting injunctive relief.

In addition, US courts will also generally not enforce judgments that are:

• punitive;
• not final; or
• arise from a foreign country’s tax or penal laws.

Similarly, US courts generally will not enforce judgments entered without affording the judgment debtor due process or entered by a court without jurisdiction over the judgment debtor. This may preclude enforcement of some, but not all, default judgments. Some states may also decline to enforce judgments where the underlying cause of action or the resulting judgment violates the state’s public policy.

As noted above, the recognition and enforcement of foreign judgments in the United States is addressed on a state-by-state basis.

In most states, a foreign judgment that is final, conclusive and enforceable in the country where rendered can be submitted by the judgment creditor to a US state or federal court for recognition, usually under the forum state’s recognition statute. Most US states require the party seeking recognition and enforcement of a foreign judgment to file an action in a court that has an adequate basis to exercise jurisdiction over the alleged judgment debtor.

While further procedural requirements vary on a state-by-state basis, most states will require the enforcing party to provide a certified English translation for a judgment in a foreign language.

Recognition and enforcement processes vary state by state and so do the costs and time.

While there are generally de minimis administrative costs, such as filing fees and other court costs, associated with the recognition and enforcement processes, the main cost faced by parties will be legal fees. The length and complexity of the recognition and enforcement process will have the greatest impact on these fees.

The timing of recognition proceedings for a foreign judgment will depend on a number of factors, including:

• the court where enforcement is sought;
• the nature of the foreign judgment;
• the time needed to complete service on the debtor;
• the issuing country’s judicial system;
• the availability of non-recognition grounds;
• whether and how much discovery is sought and ordered; and
• whether the first instance recognition decision is appealed.

Some states provide expedited judgment recognition procedures, which can speed up the recognition process. Nevertheless, like many US court actions, recognition proceedings often take a year or more to complete.

A foreign judgment may generally be challenged by a debtor for:

• mandatory grounds;
• discretionary grounds; and
• violation of a common law principle.

Mandatory Grounds for Non-Recognition

In states that follow the 1962 or 2005 Model Acts, the following mandatory grounds are available.

• Lack of Impartial Tribunals – Where there was not an “impartial administration of justice between the citizens of its own country and those of other countries” in a “full and fair” trial within the foreign court, US courts cannot enforce judgment (Hilton v Guyot, 159 U.S. 113, 158 (1895)).
• Insufficient Due Process – Where the judgment was rendered in a judicial system that does not provide procedures with sufficient due process compatible with US constitutional requirements under the 5th and 14th amendments.
• Lacking Personal Jurisdiction – Where the foreign court rendering the decision did not have personal jurisdiction over the judgment debtor. 
• Lacking Subject Matter Jurisdiction – Where the foreign court rendering the decision did not have jurisdiction over the subject matter of the dispute.

Discretionary Grounds for Non-Recognition

States that have incorporated the 1962 and 2005 Model Acts into their statutory code may also recognise several discretionary grounds for non-recognition, including the following.

• Insufficient Notice – Where the defendant in the foreign proceeding did not receive sufficient notice in the foreign court.
• Fraud – Where the judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case.
• Repugnant to US Public Policy – Where the judgment or the cause of action on which the judgment is based contravenes US public policy (or the public policy of the state in which recognition is sought).
• Inconsistent – Where the judgment conflicts with another final and conclusive judgment.
• Contrary to Parties Consent – Where the judgment contradicted a prior agreement between the parties to resolve the dispute in question in a different forum or manner, such as through arbitration.
• Forum Non Conveniens – Where jurisdiction is based only on personal service and “the foreign court was a seriously inconvenient forum for the trial of the action”.

The 2005 Model Act incorporates two additional discretionary grounds.

• Doubtful Integrity – Where the circumstances of the foreign judgment raise substantial doubt about the foreign court’s integrity with respect to the specific judgment.
• Insufficient Due Process – Where the circumstances of the specific proceeding in the foreign court did not provide the judgment debtor with sufficient due process.

Common Law Principles

Common law principles typically involve violations of US constitutional norms. Many of these norms mirror those above, such as insufficient due process, a lack of an impartial foreign tribunal, or conflict with US laws (ie, those protecting debtors from certain creditor actions) or public policy. Though common law principles are applicable generally regardless of the basis for recognition, they are most relevant for states without a statutory process for recognition.

As a preliminary matter, and as addressed further at 4.2 Variations in Approach to Enforcement of Arbitral Awards, the procedure applicable to seeking recognition and enforcement of an arbitral award in the US will vary depending on the nature of the award. Namely, whether it is a domestic arbitral award or foreign arbitral award, and, if it is a foreign award, whether it was issued under The International Centre for Settlement of Investment Disputes Convention (the “ICSID Convention”).

A domestic arbitral award is an award arising out of a relationship entirely between US citizens, as long as that relationship does not involve property or performance abroad, or other reasonable relation with a foreign state (in which case Chapter 2 of the Federal Arbitration Act (FAA) would apply – see below). With respect to the recognition and enforcement of domestic arbitral awards, the procedure is governed either by Chapter 1 of the FAA where the arbitration involves commerce beyond one US state, or otherwise by the relevant US state’s law.

With respect to the recognition and enforcement of a foreign arbitral award not issued under the ICSID Convention, the US is a party to two international agreements that have been codified into US law in the FAA, Chapters 2 and 3, respectively: the UN Convention on the Recognition and Enforcement of Arbitral Awards in 1958 (the “New York Convention”); and the Inter-American Convention on International Commercial Arbitration in 1979 (the “Panama Convention”) (which the US has signed subject to certain reservations). 

With respect to the recognition and enforcement of an award issued under the ICSID Convention, recognition and enforcement is governed by 22 USC § 1650a.

Before filing a petition to recognise and enforce an arbitral award, an award-creditor should keep the following considerations in mind.

• Jurisdiction – For a foreign arbitral award, a recognition and enforcement action may be brought before a federal court in a district where personal jurisdiction over the award debtor can be established (the FAA provides subject matter jurisdiction). For a domestic arbitral award, the action should be brought before the state courts where the arbitration was seated.
• Timing – For non-ICSID foreign arbitral awards, the FAA contemplates that the action be initiated within three years after the arbitral award was made. However, there are certain circumstances in which courts have allowed applications to be made beyond this three-year limit, including by application of the UFMJRA. US law implementing the ICSID Convention does not provide a statute of limitations, although recent authorities suggest that the applicable limitation for most ICSID actions will be 12 years. For a domestic arbitral award, under the FAA the time limit is one year. State laws regarding time limits for actions will vary depending on the jurisdiction.
• Necessary documentation – The petition seeking recognition or enforcement of the award should be included with a certified copy of the written award and the arbitration agreement. Where the award is in a foreign language, it should be accompanied by a certified translation.

As indicated at 4.1 Legal Issues Concerning Enforcement of Arbitral Awards, the procedure for enforcement of an arbitral award varies depending on whether the arbitral award is domestic, foreign or an ICSID award.

• Domestic Awards – Chapter 1 of the FAA applies to domestic awards where the arbitration involves commerce beyond one US state. Otherwise, the laws of the specific US state at issue apply.
• Foreign Awards – Chapters 2 and 3 of the FAA apply to foreign arbitral awards, other than ICSID awards.
• ICSID Awards – 22 USC § 1650a applies to awards issued under the ICSID Convention.

While the FAA and USC govern federal courts, the “Full Faith and Credit” clause of the US Constitution requires that each state must accept the recognition of an arbitral award confirmed by another state court or federal court (US Constitution, Article IV, § 1).

Similarly, the United States will grant the “full faith and credit” presumed for an award of any other domestic court to an award “rendered pursuant to chapter IV” of the ICSID convention (22 USC § 1650a).

As set out in 4.6 Challenging Enforcement of Arbitral Awards, an arbitral award can be subject to set-aside (or “vacatur”) for the grounds enumerated by the relevant applicable law.

For example, the FAA provides that both domestic and foreign arbitral awards can be set aside on the following grounds:

• where the award was procured by corruption, fraud or undue means;
• where there was evident partiality or corruption in the arbitrators, or either of them;
• where the arbitrators were guilty of misconduct in refusing to postpone the hearing (upon sufficient cause shown) or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehaviour by which the rights of any party have been prejudiced; or
• where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.

Although uncommon, certain courts also recognise “manifest disregard of the law” as a non-enumerated ground for vacatur under the FAA.

ICSID awards are not subject to set-aside proceedings on the above grounds, and a party seeking to vacate an ICSID award may pursue annulment proceedings under the ICSID Convention and ICSID Arbitration Rules.

There are two steps to enforcing an arbitral award in the US: (i) recognition and (ii) execution.

Recognition

Recognition involves converting an arbitral award into a US judgment. The following apply:

• domestic awards are governed by Chapter 1 of the FAA;
• foreign non-ICSID awards are governed by the New York Convention or Panama Convention pursuant to Chapters 2 and 3 of the FAA; and
• ICSID awards are governed by 22 USC § 1650a.

To initiate recognition proceedings, the award-creditor may file a petition before the relevant state or federal court where the award-debtor’s assets are located or where it can otherwise establish jurisdiction. If the award-debtor is a foreign state, the appropriate venue for the petition is generally the DC District Court.

Typically, the petition must include an authenticated copy of the arbitral award, the arbitration agreement underlying the award, and, if the original documents are not in English, a certified translation into English. The petition is also generally accompanied by a short memorandum of law and an attorney affidavit certifying that the copies of the documentation provided are true and correct. The award-creditor must also properly serve the petition on the award-debtor.

The award-debtor may challenge recognition proceedings (as discussed in 4.6 Challenging Enforcement of Arbitral Awards). Recognition proceedings are typically summary processes, meaning courts will decide on any challenges without trial, and often without a hearing, based only on written submissions. If the court confirms the arbitral award, it can enter a money judgment for the amount of the award. Notably, recognition of an award will typically result in a judgment that replaces any post-award award interest with the jurisdiction’s applicable post-judgment interest rate from the date of entry of the award until the judgment is fully satisfied. 

Execution

A judgment-creditor may take steps to enforce the judgment in any US jurisdiction where the award-debtor has assets. Each state will have its own procedures governing the execution process as set out in 2.2 Enforcement of Domestic Judgments. States will also generally allow discovery in aid of execution, including against third parties, to find and identify attachable assets.

The primary cost in enforcing awards is that of legal counsel and, where necessary, discovery. Translation costs can also be significant. The administrative costs are comparatively low. For instance, the current cost to file an action in federal court to request enforcement of or set aside an arbitral award is approximately USD400.

The time taken for recognition and enforcement proceedings varies by jurisdiction and complexity of the proceedings, among other factors. Generally, recognition processes take a year or less but appeals and stays will lengthen that time. Execution will take as long as is required to fully recover the value of the judgment and will depend largely on the type of assets that are to be executed against.

The US has a strong policy favouring arbitration and thus US courts will tend to recognise and enforce arbitral awards unless they fall under narrow enumerated exceptions in the FAA (for domestic awards) or New York Convention (for foreign non-ICSID awards), discussed in 4.3 Categories of Arbitral Awards Not Enforced. No such exceptions exist for ICSID awards, which must be “given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States” (22 USC § 1650a). However, recognition of ICSID awards may be opposed for the same reasons that a domestic judgment debtor may oppose sister-state recognition, including, most notably, a lack of jurisdiction, which may include the question of whether there was, in fact, an agreement to arbitrate, and potential sovereign immunity arguments. In limited circumstances, US courts may deny recognition or enforcement of foreign awards on discretionary factors such as forum non conveniens. The court must also find both personal and subject matter jurisdiction over the recognition or execution proceedings. This means that if the arbitral award is against a foreign state, the court must find jurisdiction over the recognition proceedings under the Foreign Sovereign Immunity Act. Any judgment issued by the lower court may be appealed. 

Once a judgment can be executed, the rules of the state where execution is sought apply, including the types of challenges that can be made to resist execution. Generally, any property that is assignable or otherwise transferable can be attached. Property belonging to a foreign state may be considered immune to attachment, unless one of the exceptions to execution immunity under the Foreign Sovereign Immunity Act applies. When enforcing a judgment that arises from an arbitral award, any state property that is used for commercial activity in the United States may be available for execution (28 USC § 1610(a)(6)). A foreign state may also waive immunity from post-judgment execution: for example, by contract.