have been met. Citibank never took the position in the Liberian
proceedings that the Liberian courts are impartial and that the
Liberian judicial system operates in accordance with the basic
requirements of due process. That Citibank chose to defend itself
in Liberia when sued surely does not mean that it waived any and
all objections it might have to the fairness of the Liberian
judicial system. Hence, Citibank cannot be said to have taken a
position in a prior proceeding that is inconsistent with its
position here. Moreover, even assuming that Citibank can be said
to have taken an inconsistent position in the prior action,
because the issue of the fairness of the Liberian judicial system
was not actually raised and litigated in the Liberian proceeding,
the Liberian courts cannot be said to have adopted the
inconsistent position taken by Citibank.
Second, there is no support in the case law for the application
of judicial estoppel in these circumstances. Indeed, Bridgeway
has not come forward with a single case holding that a party must
specifically raise the issue of impartiality of the foreign
tribunal before which a matter is pending to preserve its right
to assert that argument in opposing a subsequent action in a U.S.
court to enforce the foreign judgment, nor has the Court's
research revealed any such case. The cases cited by plaintiff in
support of its judicial estoppel argument are clearly
distinguishable. See, e.g., Guinness PLC v. Ward, 955 F.2d 875,
899-900 (4th Cir. 1992) (holding that judicial estoppel barred
defendant from relying on a settlement to avoid enforcement of
foreign judgment where defendant had failed to advise the foreign
appellate courts that the settlement had rendered the appeal
Finally, as a policy matter, parties in foreign proceedings
should not be required to explicitly assert the position that the
particular forum in which they are litigating is unfair and
impartial to preserve their right to challenge the enforceability
of the judgment rendered by that tribunal in a subsequent
proceeding. Indeed, the very reason statutes such as CPLR Article
53 exist is so that parties who believe that they have not been
treated fairly in foreign courts have an avenue of redress in
courts in the United States. To hold that Citibank is barred from
collaterally attacking the Liberian Judgment on the ground that
it failed to challenge the fairness and impartiality of the
Liberian judicial system would offend the very notion of due
process that statutes such as CPLR Article 53 were designed to
For all of these reasons, Bridgeway's judicial estoppel
argument is rejected, and accordingly, its motion for summary
judgment on the basis of judicial estoppel is denied.
Having held that Citibank is not judicially estopped from
asserting the CPLR Article 53 defense to enforcement of the
Liberian Judgment, the question remains whether the Liberian
Judgment is enforceable as a matter of law. Accordingly, I
now turn to the merits of Bridgeway's claim of enforcement.
2. Principles Governing Enforcement of Foreign Judgments
The recognition and enforcement of foreign judgments are
governed by principles of comity. Pariente v. Scott Meredith
Literary Agency, Inc., 771 F. Supp. 609, 615 (S.D.N.Y. 1991);
accord Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B.,
825 F.2d 709, 713 (2d Cir. 1987); see also Hilton v. Guyot,
159 U.S. 113, 163-64, 16 S.Ct. 139, 40 L.Ed. 95 (1895). The seminal case
in the area of enforcement of foreign judgments, Hilton v.
Guyot, explains the doctrine of comity as follows:
No law has any effect . . . beyond the limits of the
sovereignty from which its authority is derived. The
extent to which the law of one nation, as put in
force within its territory, . . . by judicial decree,
shall be allowed to operate within the dominion of
another nation, depends upon what our greatest
jurists have been content to call "the comity of
nations". . . .
"Comity" . . . is the recognition which one nation
allows within its territory to the . . . judicial
acts of another nation, having due regard both to
international duty and convenience, and to the rights
of its own citizens, or of other persons who are
under the protection of its laws.
159 U.S. at 163-64, 16 S.Ct. 139. The Supreme Court in Hilton
held that if the foreign forum provides a full and fair trial
before a court of competent jurisdiction, "under a system of
jurisprudence likely to secure an impartial administration of
justice . . . and there is nothing to show either prejudice . . .
or fraud in procuring the judgment," the judgment should be
enforced and not "tried afresh." Id. at 202-03, 16 S.Ct. 139.
The practice of "`extend[ing] comity whenever the foreign court
ha[s] proper jurisdiction and enforcement does not prejudice the
rights of United States citizens or violate domestic public
policy' has consistently been followed in this Circuit."
Pariente, 771 F. Supp. at 615 (quoting Victrix, 825 F.2d at
713 and citing Ackermann v. Levine, 788 F.2d 830 (2d Cir.
1986); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452
(2d Cir. 1985); Clarkson Co. v. Shaheen, 544 F.2d 624 (2d Cir.
b. New York CPLR Article 53
New York law governs actions brought in New York to enforce
foreign judgments. Canadian Imperial Bank of Commerce v. Saxony
Carpet Co., 899 F. Supp. 1248, 1252 (S.D.N.Y. 1995) (citing In
re Union Carbide Corp. Gas Plant Disaster at Bhopal, India,
809 F.2d 195, 204 (2d Cir.), cert. denied, 484 U.S. 871, 108 S.Ct.
199, 98 L.Ed.2d 150 (1987) and Pariente, 771 F. Supp. at 615),
aff'd, 104 F.3d 352 (2d Cir. 1996).
In New York, "courts `generally will accord recognition to the
judgments rendered in a foreign country under the doctrine of
comity absent a showing of fraud in the procurement of the
foreign judgment or unless recognition of the [foreign] judgment
would offend a strong policy of New York.'" Allstate Ins. Co. v.
Administratia Asigurarilor de Stat, 962 F. Supp. 420, 425
(S.D.N.Y. 1997) (quoting Lasry v. Lasry, 180 A.D.2d 488,
579 N.Y.S.2d 393, 393-94 (1st Dep't 1992)). Indeed, New York has a
"long-standing" tradition of "permitting the enforcement of
foreign country money judgments." Fairchild, Arabatzis & Smith,
Inc. v. Prometco (Produce & Metals) Co., 470 F. Supp. 610, 615
(S.D.N.Y. 1979) (citing Island Territory of Curacao v. Solitron
Devices, Inc., 489 F.2d 1313, 1318 n. 6 (2d Cir. 1973), cert.
denied, 416 U.S. 986, 94 S.Ct. 2389, 40 L.Ed.2d 763 (1974));
see also Cowans v. Ticonderoga Pulp & Paper Co., 246 N.Y. 603,
159 N.E. 669 (N.Y. 1927); David D. Siegel, Practice Commentaries,
7B McKinney's Cons.Laws of NY, CPLR C5304:1, at 548 (McKinney's
1997) (describing New York as "generous"
in the recognition of the judgments of foreign nations)
(hereinafter "Siegel Commentaries").
New York has codified the principles of comity by statute in
the "Uniform Foreign Money-Judgments Recognition Act." See CPLR
Article 53. Article 53 provides that "a foreign country judgment
. . . is conclusive between the parties to the extent that it
grants or denies recovery of a sum of money." CPLR § 5303. The
article applies to "any foreign country judgment which is final,
conclusive and enforceable where rendered even though an appeal
therefrom is pending or it is subject to appeal." Id. § 5302.
A foreign country judgment is "not conclusive," however, if
either of the following two circumstances exists: (1) "the
judgment was rendered under a system which does not provide
impartial tribunals or procedures compatible with the
requirements of due process of law"; or (2) "the foreign court
did not have personal jurisdiction over the defendant." Id. §
5304(a). These bases of non-recognition preclude courts from
recognizing the foreign judgment as a matter of law. See Siegel
Commentaries at 548-49; 11 Jack B. Weinstein et al., New York
Civil Practice ¶ 5304.01 (1998) (hereinafter "Weinstein CPLR").
Similarly, a foreign country judgment "need not be recognized"
if: (1) the foreign court did not have subject matter
jurisdiction; (2) the defendant in the proceedings in the foreign
court did not receive notice of the proceedings in sufficient
time to enable a defense; (3) the judgment was obtained by fraud;
(4) the cause of action violates public policy; (5) the judgment
conflicts with another final and conclusive judgment; (6) the
proceeding in the foreign country was contrary to an agreement
between the parties under which the dispute in question was to be
settled otherwise than by proceedings in that court; or (7) the
foreign court was a seriously inconvenient forum for the trial of
the action. CPLR § 5304(b). These bases of non-recognition are
discretionary. Weinstein CPLR ¶ 5304.02.
c. Burdens of Proof
The burden of proof in "establishing the conclusive effect of a
foreign judgment is on the party asserting conclusiveness." Id.
¶ 5302.01. As the Second Circuit has explained:
[A] plaintiff seeking enforcement of a foreign
country judgment granting or denying recovery of a
sum of money must establish prima facie: (1) a final
judgment, conclusive and enforceable where rendered;
(2) subject matter jurisdiction; (3) jurisdiction
over the parties or the res; and (4) regular
proceedings conducted under a system that provides
impartial tribunals and procedures compatible with
Ackermann v. Levine, 788 F.2d 830, 842 n. 12 (2d Cir. 1986)
(citations omitted). Once a plaintiff establishes a prima facie
case of enforceability, a defendant may then raise defenses such
as fraud and public policy. Id. Although the Ackermann court
did not specify how these burdens apply with respect to CPLR
Article 53, as a matter of logic, it would appear that the
plaintiff seeking enforcement of the foreign judgment bears the
burden of proving that no mandatory basis for non-recognition
pursuant to CPLR § 5304(a) exists, and that the defendant
opposing enforcement has the burden of proving that a
discretionary basis for non-recognition pursuant to CPLR §
5304(b) applies. See S.C. Chimexim, S.A. v. Velco Enters. Ltd,
1999 WL 223513, at *6, No. 98 Civ. 0142 (S.D.N.Y. Mar. 17, 1999).
In this case, Citibank does not dispute that Bridgeway has
established the first three elements of a prima face case.
Rather, Citibank challenges enforcement of the Liberian Judgment
on the ground that Bridgeway has failed to offer any evidence
that the Liberian Supreme Court was impartial or that its
compatible with due process of law, at the time the Liberian
Judgment was rendered. On the record before the Court, a
reasonable factfinder could only conclude that, at the time the
judgment at issue here was rendered, the Liberian judicial system
was not fair and impartial and did not comport with the
requirements of due process. The Liberian Judgment is therefore
unenforceable as a matter of law.
First, the record demonstrates that, throughout the period
during which the Liberian action was pending, the country was
embroiled in a civil war. The country was in a state of chaos, as
the various factions fought. The Liberian Constitution was
ignored. Some 200,000 Liberian citizens were killed, more than
one million more were left homeless, and approximately 750,000
fled Liberia to seek refuge in other countries. It is difficult
to imagine any judicial system functioning properly in these
Second, the record shows that the regular procedures governing
the selection of justices and judges had not been followed since
the suspension of the 1986 Constitution. As a result, justices
and judges served at the will of the leaders of the warring
factions, and judicial officers were subject to political and
social influence. The Liberian judicial system simply did not
provide for impartial tribunals.
Third, the courts that did exist were barely functioning. The
due process rights of litigants were often ignored, as corruption
and incompetent handling of cases were prevalent. Although the
Liberian judicial system might have been modeled on our own, it
did not comport with the requirements of due process during the
period of civil war.
Bridgeway offers the following as evidence that the Liberian
judicial system is a system of jurisprudence likely to secure an
impartial administration of justice: (1) a statement in the
certification of James E. Pierre, Esq., a member of the Liberian
Bar and the attorney who represented Bridgeway in the Liberian
action, that the procedural rules of Liberia's courts are modeled
on those of the New York State courts (Certification of James E.
Pierre dated April 23, 1998 ¶ 6); (2) H. Varney G. Sherman's
statement in his First Sworn Statement that, "[i]n essence, the
Liberian Government is patterned after state governments of the
United States of America" (Varney Aff. I ¶ 2); and (3) a
statement in the certification of N. Oswald Tweh, former Vice
President of the Liberian National Bar Association and also
counsel to Bridgeway, that "Liberia's judicial system was and is
structured and administered to afford party-litigants therein
impartial justice." (Certification of N. Oswald Tweh dated July
6, 1998 ¶ 5).
The evidence presented by Bridgeway does not create a genuine
issue of fact requiring a trial in this action. First, that the
Liberian judicial system was modeled after judicial systems in
the United States does not mean, of course, that the Liberian
system was actually implemented in a manner consistent with
procedures used in the American courts. Second, the statement
that "Liberia's judicial system was and is structured and
administered to afford party-litigants therein impartial justice"
is purely conclusory and is not, by itself, sufficient to raise a
genuine issue of fact. See Kulak v. City of New York,
88 F.3d 63, 71 (2d Cir. 1996) ("Though we must accept as true the
allegations of the party defending against the summary judgment
motion, drawing all reasonable inferences in his favor,
conclusory statements, conjecture, or speculation by the party
resisting the motion will not defeat summary judgment.")
(citation omitted); Tadros v. Coleman, 717 F. Supp. 996, 1006
(S.D.N.Y. 1989) ("[S]elf-serving, conclusory allegations cannot
defeat" motion for summary judgment), aff'd, 898 F.2d 10 (2d
Cir.), cert. denied, 498 U.S. 869, 111 S.Ct. 186, 112 L.Ed.2d
No genuine issues of fact exist for trial. On the record before
the Court, a reasonable factfinder could only conclude that the
Liberian Judgment was rendered by a system that does not provide
impartial tribunals or procedures compatible with the
requirements of due process. Accordingly, the Liberian Judgment
will not be enforced.
For the foregoing reasons, Bridgeway's motion for summary
judgment is denied. Furthermore, because I conclude that the
Liberian judgment is unenforceable as a matter of law, summary
judgment is hereby granted in favor of Citibank. Bridgeway's
complaint is dismissed with prejudice. The Clerk of the Court
shall enter judgment accordingly.