Commercial Litigation and Arbitration

Res Judicata/Collateral Estoppel — Preclusive Effect of Foreign Criminal Conviction

In a recent decision arising out of the Pan Am 103/Lockerbie tragedy, Hurst v Socialist People’s Libyan Arab Jamahiriya, 474 F.Supp.2d 19 (D.D.C. 2007), District Judge Henry Kennedy held as a matter of first impression in the D.C. Circuit that a foreign criminal judgment is entitled to preclusive effect in a subsequent civil action where (I) pursuant to Hilton v. Guyot, 159 U.S. 113, 202 (1895), ‛there has been an opportunity for a full and fair trial in a foreign court of competent jurisdiction after proper service or voluntary appearance by the defendant and under a judicial system which does not violate U.S. public policy,“ and (II) the doctrine of collateral estoppel applies because the issue ‛has been (1) actually litigated and (2) necessarily determined by a court of competent jurisdiction in the first trial; (3) and that its use in the second trial not work an unfairness on the defendant.“ Held, these standards were satisfied by a conviction in the Scottish High Court following a trial lasting 84 days, in which the prosecution called 231 witnesses, 132 of whom were cross-examined by counsel for the defendant.

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