*Another* Federal Statute Relating to Foreign Judgments

Image by Squirrel_photos from Pixabay

The standard story relating to the enforcement of foreign judgments in the United States goes something like this: There is a special federal statute—the SPEECH Act—that applies to foreign judgments for libel or defamation. The State Department is currently in the process of drafting a federal statute that would implement the Hague Judgments Convention and the Hague Convention on Choice-of-Court Agreements should the United States choose to ratify them. The enforcement of foreign judgments is otherwise governed by state law.

Although I have been telling this story for years, I recently learned that it is incomplete. There is another federal statute—28 U.S.C. § 2467—that governs the enforcement of certain foreign judgments in the United States. In this post, I first describe its content. I then discuss a recent case where the Second Circuit had occasion to apply it.

28 U.S.C. § 2467

Section 2467, which was enacted in 2000, has a narrow scope. It only applies when (1) the judgment creditor is a foreign government; (2) the foreign government is from a nation that has a mutual forfeiture assistance treaty with the United States or has ratified the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; (3) the foreign judgment relates to forfeiture or confiscation of property; (4) the foreign government requests the assistance of the Attorney General with respect to enforcing the judgment in the United States; and (5) the Attorney General decides that providing the requested assistance would further the interest of justice.

If all of these conditions are met, the Attorney General may file an application on behalf of the requesting nation in federal district court seeking to enforce the foreign judgment. The suit may be brought in the District of Columbia or in “any other district in which the defendant or the property that may be the basis for satisfaction of a judgment under this section may be found.” Personal jurisdiction may be asserted over a defendant outside of the United States if that person is “served with process in accordance with rule 4 of the Federal Rules of Civil Procedure.”

A court is obligated to recognize and enforce a foreign judgment covered by Section 2467 unless (a) the judgment was rendered under a system that provides tribunals or procedures incompatible with the requirements of due process of law; (b) the foreign court lacked personal jurisdiction over the defendant; (c) the foreign court lacked jurisdiction over the subject matter; (d) the rendering court did not take steps, in accordance with the principles of due process, to give notice of the proceedings to a person with an interest in the property in sufficient time to enable him or her to defend; or (e) the judgment was obtained by fraud. This list of bases for non-enforcement is similar—though not identical—to the list set forth in the Uniform Foreign-Country Money Judgments Recognition Act (“Uniform Act”).

Why is this statute necessary? Why can’t a foreign government simply enforce foreign judgments relating to forfeiture or confiscation of property through the usual channels? The answer lies in an old rule known as the penal judgments exception: U.S. courts will not enforce foreign judgments that operate as penalties. The U.S. Supreme Court has held that a U.S. state court judgment is not entitled to full faith and credit in the courts of a sister state if that judgment is penal. The Uniform Act states that it “does not apply” to a foreign-country judgment to the extent that that judgment is “a fine or other penalty.” Under ordinary circumstances, a foreign judgment relating to forfeiture or confiscation would not be enforceable in the United States because it is penal in character. Section 2467 offers foreign governments a way around this rule if they can obtain the assistance of the Attorney General.

In Re Enforcement of Philippine Forfeiture Judgment

On August 18, 2025, the Second Circuit had occasion to apply 28 U.S.C. § 2467 in In Re Enforcement of Philippine Forfeiture Judgment. The case involved a New York bank account into which Ferdinand Marcos deposited roughly $2 million in 1972. In the ensuing decades, the amount of money in that account grew to $40 million. In 2015, the Republic of the Philippines (“Republic”) formally requested the assistance of the U.S. Attorney General in enforcing a forfeiture judgment granted against the Marcos estate by an anti-corruption court in the Philippines. The Republic wanted to seize the $40 million in the New York bank account to satisfy that judgment.

In 2016, the U.S. Department of Justice certified that the Republic’s request was in the interest of justice and filed an enforcement application under 28 U.S.C. § 2467. Two parties intervened to oppose this action. The first intervenor was a representative of a class of 9,539 Filipino human rights victims (the “Class”) who had suffered abuse at the hands of the Marcos regime. The Class had sued the Marcos estate in Hawaii in 1986 and won a judgment of approximately $2 billion. This judgment has never been satisfied. The second was the estate of a treasure hunter named Roger Roxas who had won a multi-million-dollar judgment in Hawaii state court against the Marcos estate 1996. This judgment has likewise never been satisfied.

A federal district court in New York granted summary judgment to the U.S. Government and ordered that the $40 million in the bank account be awarded to the Republic. The intervenors appealed that decision to the Second Circuit. The intervenors argued that the district court erred in granting summary judgment for five reasons: (1) the Philippine court lacked subject-matter jurisdiction; (2) the Philippine court failed to provide proper notice to persons—the Class—with an interest in the property of the proceedings in sufficient time to enable them to defend in the Philippine proceeding; (3) the judgment was obtained by fraud; (4) the U.S. Government’s application was untimely, and (5) the U.S. Government’s application was barred by Federal Rule of Civil Procedure 41(a)(1)(B). The Second Circuit rejected each of these arguments—along with several others—and affirmed the decision by the district court. Unless the U.S. Supreme Court decides to intervene—an exceedingly unlikely prospect—the $40 million will soon be transferred to the Republic to satisfy the Philippine penal judgment.

Conclusion

It is rare for Congress to legislate in the field of private international law. It is even more uncommon for it to pass laws relating to the enforcement of foreign judgments. So far as I am aware, Section 2467 represents the only legislative attempt to override the penal judgments exception in the history of the United States. While this statute may have a narrow scope of application, it deserves to be incorporated into the broader story of judgments enforcement in the United States. As a first step in this direction, we recently updated the TLB Primer on Foreign Judgments to account for it.