CROSS-BORDER JURISDICTION
Depending on the type of court, similar but distinct principles will apply. 18 When a federal court is applying federal law, they will use federal standards. Federal recognition of out- of-country judgments begins with the principle of comity, the common law rule supporting deference to these foreign judgments. Comity is not mandatory but is appropriate when there has been an opportunity for a full and fair trial before a court with proper jurisdiction over the matter, after proper service on or appearance of the defendant. 19 Comity also requires an impartial administration of justice, a lack of fraud, and a lack of other reason why the judgment should not be given its full effect. Courts tend to narrow the test to specific factors to determine whether the foreign court was competent and civilized, whether the judgment was fraudulent, and whether the judgment violates American public policy notions or concepts of justice and decency. Reviewing courts will also ensure that the foreign court had personal jurisdiction through the minimum contacts lens. 20 Furthermore, courts will also ensure that the judgment is not based on a penal law in the international sense, such that recognition is inappropriate. Courts applying state law invoke state-specific statutory provisions for recognizing foreign judgments. Most of these statutes function similarly to the factor tests present at the federal level, but the statutes are frequently divided into mandatory and permissive denials of recognition, with mandatory denial stemming from a lack of finality, jurisdictional concerns, and due process concerns relating to the foreign system itself, while the permissive reasons for denying recognition focus on public policy, consistency, reciprocity, and particular concerns over the manner in which the specific case was tried. 21 As such, it is possible to obtain or enforce both civil and criminal judgments against foreign operators without
physical presence in the U.S., and such judgments may lead to additional sanctions from gaming regulatory bodies across the country. These tools can be effective against numerous black-market operators across the world. However, given the aggressive, protectionist nature of Bill 55, while courts can handle offshore gambling cases procedurally, can their holdings have any true effect if the activities originate in a jurisdiction offering protections to the operator?
Bill 55 – impact on enforcement .
The pertinent provision of Bill 55 creates Article 56A in Malta’s Gaming Act, and reads as follows: 56A. Notwithstanding any provision of the Code of Organization and Civil Procedure or of any other law, as a principle of public policy: (a) no action shall lie against a licence holder and, or current and, or former officers and, or key persons of a licence holder for matters relating to the provision of a gaming service, or against a player for the receipt of such gaming service, if such action: (i) conflicts with or undermines the legality of the provision of gaming services in or from Malta by virtue of a licence issued by the Authority, or the legality of any legal or natural obligation resulting from the provision of such gaming services; and (ii) (ii) relates to an authorised activity which is lawful in terms of the Act and other applicable regulatory instruments; and (b) The Court shall refuse recognition and, or enforcement in Malta of any foreign judgment and, or decision given upon an action of the type mentioned in sub-article (a). 22
The effect of these provisions appears to create a situation
18 Saita v. Cortuk (In re Cortuk) 633 B.R. 236 (Bankr. S.D. N.J 2021) 19 In r e Nexgenesis Holdings Ltda ., 2024 Bankr. Lexis 1766 (S.D. Fla. 2024) 20 Id. , see also Comm’ns Imp. Exp., S.A. v. Republic of the Congo & Caisse Congolaise d’Amortissement , 118 F. Supp 3d 220 (D.C. Dist. 2015), discussing comity and personal jurisdiction over a sovereign pursuant to 28 U.S.C. §1330(b 21 See §55.605, Fla. Stat.; N.J. Stat. Ann. §2A:49A-16.4© 22 https://parlament.mt/media/122833/act-xxi-gaming-amendment-act.pdf
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IMGL MAGAZINE | DECEMBER 2024
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