Introduction
There is no doubt that the world tends toward more interaction
between its different components. This interaction is embodied in the
phenomenon of globalization which can be defined as the emerging system of
private exchanges structured through economic relationships1(*). In effect, fuelled by the
revolutions in the technologies of transportation and telecommunications,
globalization shrunk the entire world into a physically smaller entity. As a
result, the level of international trade and the movement of people and goods
from one country to another have significantly increased over the last few
decades; «and the prognosis is that these trends will continue to
expand»2(*). As a
direct consequence of the interaction between different components of the
world, the need to harmonize the different legal, social and cultural systems
emerged. This need is increasing as much as interaction between global
communities is increasing.
Thus, harmonization is a core concept in this era of the
global growing economy. It refers to the search for common rules which can
eliminate differences and create minimum requirements or standards.
Harmonization, therefore, focuses on the means of attaining substantive
ends3(*) which can lead to
the coordination of different policies. In other words, harmonization means the
adoption of an agreed set of rules or principles that two or more countries
would apply in their reciprocal relationship. Unlike unification, which
contemplates the substitution of two or more legal systems with one single
system, harmonization is only approximation of rule or coordination of
policies4(*) by eliminating
major differences and creating minimum standards5(*).
The international community seems to take into consideration
the need of the harmonization of their respective systems in order to enhance
international trade and provide predictability and harmony. As a result,
efforts to establish a harmonized legal framework have already started. Indeed,
international community has succeeded in standardizing law on different
issues6(*), and nowadays
numerous treaties exist to regulate different areas of law7(*). However, efforts seem to be
addressed to the harmonization of substantive law governing both civil and
commercial matters as well as matters related to family law8(*) at the detriment of procedural
law which continues to be handled by national standards.
With this respect, the harmonization of national laws has a
specific importance when it comes to the question of international litigations.
In effect, with the growth of international trade and movement of people and
goods which has witnessed a parallel development in the number of civil and
commercial suits involving foreign defendants9(*), international litigations do not necessarily come to
an end when one party succeeds in obtaining a favourable judgment10(*). This is basically due to the
differences among countries and to the common principle that foreign judgments
have no effect outside the country where they were rendered.
With this respect, the recognition and enforcement of foreign
judgments were considered as effective tools which facilitate the movements of
judgments from one country to another. Recognition and enforcement of foreign
judgments refer to the effect that a foreign judgment can have when taken
abroad. Note that even though the concepts of recognition and enforcement are
related and sometimes used interchangeably, they have distinct
meanings11(*). Recognition
of foreign judgments means that matters which have already been decided by a
foreign court should be treated as conclusive. As a result, recognition of
foreign judgments precludes relitigation of the claims anew on the ground that
they have been previously litigated abroad. Enforcement, on the other hand,
means the order to a court to use coercive powers in order to compel the
judgment debtor to satisfy a judgment rendered abroad12(*). As such, recognition can be
understood as a first step towards enforcement.
Considered as «a central tool of trade
integration»13(*),
the recognition and enforcement practices provide international traders with
legal assurance to protect their legal rights. The unsatisfied party may make
tremendous efforts to either relitigate the case again or to avoid the effect
of foreign judgments and that by moving his/her assets from one country to
another (knowing that foreign judgments do not have any effect by their own
outside the country where it was rendered). With this respect, one commentator
wrote «Traders seek the security provided by the enforcement of legal
rights and the provision of an adequate remedy. Accordingly, without secure
means by which that remedy may be given effect, exporters may undervalue the
gains from trade. Consequently, they may fail to take advantage of trading
opportunities that would otherwise be socially beneficial, taking into account
both the gains for individual traders and the benefits that would flow to third
parties. At the same time, the inability of importers to vindicate their legal
rights through the effective enforcement of judgments would also distort
incentives for trade, leading exporters not to appreciate fully the costs of
their activities and encouraging them to exploit trading opportunities that
would be better left unrealized»14(*).
Although it is agreed that a universal recognition and
enforcement of foreign judgments is beneficial to enhance international trade
and free movement of poeple and goods, the status quo of foreign judgments
recognition and enforcement is described as far from being
satisfactory15(*). In
fact, each country determines its own standards according to which foreign
judgments would have effect within its territory. Countries define their own
conception of harmonization by the adoption of national standards which will be
applicable in the field of the recognition and enforcement of foreign
judgments. As a matter of fact, foreign judgments are frequently refused effect
when taken abroad.
The refusal to grant effect to a foreign judgment has always
been justified by sovereignty prerogatives. «Sovereignty can be defined as
the ultimate overseer or supreme authority in a state. In a state
sovereignty is vested in the institution, person, or body to impose law on
everyone else and to alter any pre-existing law»16(*). Sovereigns have the supreme
public power i.e. the right and the capacity to impose its authority in the
last instance17(*). On the
other hand, it is unacceptable, for foreign sovereign, to allow any foreign
governmental act to have effect within the limits of its territory because this
permission is perceived as a threat to the sovereign's supreme
dominion18(*).
Consequently, the effectivelessness of foreign judgments is due to the fact
that the judgments themselves are the result of the judicial power of the
state, which is the «very core of a country's judicial
sovereignty»19(*).
A sovereign has the «power to hale before its court any
individual who could be found within its borders»20(*) and renders a judgment against
that individual. Thus, judgments are tinged with the sovereign expression of
power and authority and as such it will be executed. Following the same line of
arguments, «judgments [are] seen as governmental acts whose compulsory
effect [is] limited to the sovereign's territory»21(*). It is clear that this
conception is in contradiction with the notion of interaction. Judgments, which
can be «an important gateway for this interaction in the legal
international context»22(*), would eventually be disregarded on the basis of
national sovereignty.
Obviously such conception has a very negative impact on the
judicial protection of persons involved in international civil or commercial
relations and creates obstacles to the circulation of judgments. Accordingly,
the non-movement of judgments hampers international credit and
commerce23(*), and
retrying authoritatively decided cases violates the fundamental tenets of
judicial economy24(*).
Consequently, a legal structure to ensure the circulation of foreign judgments
across the borders of different countries cannot be ignored25(*) and is somehow required
26(*).
Nevertheless, although efforts to harmonize national laws were
concluded in other fields of law, attempts to define international standards on
recognition and enforcement practices - i.e. to create a convention «which
would be joined by many countries...and would cover the broad range of foreign
judgments»27(*) -
have failed. This can be explained by the fact that «each country has
tendency to protect itself against the intrusion of foreign judgments, to the
prejudice of creditors whose favour the judgments lie»28(*). In addition, each state has
it own conception of what constitutes standards for the recognition and
enforcement of foreign judgments. According to one scholar, most of the
possible obstacles that foreign judgments have to face up are historical relics
rooted in the notion of sovereignty29(*) and which states continue to hold dear. Even the
conception of what is considered a good administration of justice varies from
one country to another and as a result approaches to the recognition and
enforcement of foreign judgments vary from one state to another.
Between the needs of national prerogatives of sovereignty and
the international trade and the free movement of persons and goods exigencies
of liberal recognition and enforcement of foreign judgments, the concept of
reciprocity «assumes a peculiar importance»30(*). One scholar wrote that
«the importance of the principle becomes more conspicuous in international
legal arena where cooperation between sovereign states is inevitably necessary
and where, accordingly a sovereign should respect decision-making powers of
other states in order to avoid their unfavorable treatment of its own
acts»31(*).
The problem with the notion of reciprocity is that there is no
definition that can absorb and account for all its aspects. The notion of
reciprocity is a vague concept which escapes from any tentative rigid
definition. This vagueness is due to fact that this notion does not only
underlie most legal relationships but also covers and encompasses all the
aspects of the human existence and activities.
Yet, reciprocity can be identified through its characteristics
since it requires a returning like behaviour32(*). It can be active when it does not demand any direct
return to an antecedent action and merely imposes a certain repayment of
obligation in the future from the receiving side33(*). Reciprocity can be applied in
reverse when emphases are placed on simultaneous exchange of strictly
equivalent benefits and/or obligations34(*). To put it in other words, reciprocity, regardless of
its operation, means the fundamental rule by which two or more parties maintain
the balance of treatment by means of granting the same or equivalent rights and
benefits and/or undertaking obligations to each other35(*).
In the field of the recognition and enforcement of foreign
judgments, reciprocity can have both characteristics. It can be applied as the
consent of a state to give extraterritorial effect to foreign judgments taking
into account common convenience and mutual necessities; or it can be applied in
reverse when one state refuses to give effect to judgments coming from a
foreign state if that state refuses in its turn to grant effect to the other
state's judgments36(*). In
this context, reciprocity can be categorized into three types of reciprocities.
It can be either diplomatic and it takes the form of international agreements.
It can be legislative and refers to reciprocity established by the legislative
acts and laws. Finally, reciprocity can be factual, and refers to the judicial
and administrative practices37(*).
Reciprocity has a very specific importance when applied in the
field of the recognition and enforcement of foreign judgments. This importance
is reflected by the substantial number of pages written on this subject up to
the present. This is due to the fact that utility of the reciprocity in the
field of recognition and enforcement of foreign judgments has always been
subject to many questions and considerations. The hot debate that engages the
proponents and opponents of the inclusion of the reciprocity requirement in the
landscape of the recognition and enforcement of foreign judgments is far from
being settled.
On the one hand, the notion of reciprocity has been hardly
criticized. This is due to its negative impact on litigants and international
trade. Even those who are with the existence of such notion in the field of the
recognition and enforcement of foreign judgments, agree that the notion of
reciprocity «does nothing to insure fairness between parties to a
particular dispute...[ But it] can require that a perfectly valid foreign
judgment between individual be thrown out-that individual justice not be done-
in order to promote national interest» 38(*). The last loosers are litigants who will be punished
for political stances taken by their governments or the state that rendered the
judgment39(*). Reciprocity
is also criticized because the states which employ it to pursue an interest of
safeguarding the abstract interest of the dignity of the state through private
dispute resolution. Accordingly, a certain number of judgments as well as
judgment creditors can suffer long delays or even encounter the non-recognition
of their judgments in the name of reciprocity.
On the other hand, reciprocity is basically applied as a
device to protect sovereignty and ensure the recognition and enforcement of
foreign judgments. It can be also used as incentives for foreign countries to
enter into agreements. One scholar affirms that «in fact, it is not the
reciprocity requirement, but rather the application of the requirement which
proved to be a burden to the parties and an obstacle to international
law»40(*).
Through reciprocity, independent countries can achieve both
goals, namely, protect national sovereignty and satisfy the exigencies of
globalization. Reciprocity protects national sovereignty because it will give
the right to state to accept the limitation of its authority when the foreign
sovereign does the same thing. It satisfies the exigencies of international
trade because once reciprocity is established, it would draw commitment from
foreign states to recognize and enforce judgments rendered in the courts of the
reciprocating state. With this respect, reciprocity can play as a connecting
point between different legal systems since it is based on the idea of
concessions.
Accordingly, reciprocity may lead to the reception of foreign
judgments recognition and enforcement standards. It may allow the addition of
foreign judgments recognition and enforcement standards to it national
counterparts. In other words, in the occasion of checking the regularity of a
foreign judgment, the enforcing court can subject the foreign judgments to
their national standards of recognition and enforcement as a matter of
reciprocity41(*).
The question of reciprocity has become more interesting since
international community is started to consider the reciprocity with same
characteristics but with different goals and that despite the continuous
critics to the notion and the general consensus of the decline of its
application42(*). The new
breadth of the reciprocity is the result of work undertaken by the American Law
Institute (ALI) which decided to include the concept of reciprocity on the
occasion of drafting a proposed federal statute on the recognition and
enforcement of foreign judgments. Reasons for drafting such a statute will be
discussed later. However, it is important to mention that reciprocity, as
conceived by the ALI, is no longer linked to the notion of sovereignty, but
would have the mere purpose of ensuring the recognition and enforcement of
foreign judgments Reciprocity focuses on creating a common vision of
appropriate processes for resolving international disputes. It has the purpose
of making foreign countries accepting American standards and as a result
eliminating hurdles that face the recognition and enforcement of American
judgments aborad.
The issue is attractive because reciprocity, which seems to be
at odds with the notion of harmonization, was chosen as a solution which may
lead to cooperation. The notion of reciprocity focuses on purely national
interest whereas harmonization aims on the contrary to find commons for the
best interest of all parties. One may wonder whether the general interest of
harmonization of standards for the recognition and enforcement of foreign
judgments can be achieved through a purely and «selfish» notion of
reciprocity which only emphasises on purely private interests of one country at
the expense of differences between foreign countries.
On the other hand, one can advance at least one common feature
between reciprocity and harmonization. Both, actually, require mutual
interaction. Reciprocity needs a returning like behaviour; harmonization needs
cooperation between two or more countries which will adopt reciprocally common
rules in order to eliminate differences. This can be illustrated through the
act of shaking hands which implies both reciprocity and cooperation.
Reciprocity, as such has been advanced an efficient tool to secure trustworthy
methods of cooperation among states43(*); a cooperation which requires a minimum of
harmonization between different legal systems.
Following the same line of arguments, the ultimate purpose
underlying the present work will revolve around the aforementioned controversy
of reciprocity in attempt to provide answers and clarifications to the
subsequent query: What role can the reciprocity play for the harmonization of
standards for the recognition and enforcement of foreign judgments?
In order to be able to answer this question, a distinction
should be drawn between the traditional role of the reciprocity requirement and
between its proposed role presented by the ALI. Where the traditional role of
reciprocity, emphasises on sovereignty prerogatives, the proposed role seems to
ignore such prerogative and focuses only on securing national judgments having
effects abroad.
Therefore, the present paper is organized as follows: The
first part will mainly deal with the traditional conception of reciprocity,
i.e. reciprocity used as a device to protect sovereignty. Part two will deal
the reasons of the resurrection of the notion reciprocity and address its new
proposed role. Therefore, it is necessary to address the traditional role of
the reciprocity in a first art (Part I) before addressing and
assessing its proposed role in a second part (Part II).
Part I: The Traditional Role of
Reciprocity
As it was advanced in the introduction, reciprocity has been
traditionally closely connected to the notion of sovereignty. Reciprocity has
always been used as a prerogative for sovereignty and employed as a device for
its protection. Through the reciprocity, sovereignty is protected by
establishing equality between states.
The direct consequence of this conception is that no judgment
can have effect outside the country where it was rendered. This is due to
public aspect of the judgment as the expression of the sovereign power and as a
resolution to private disputes.
Admitting that all states are sovereign and equal, states are
required to make concessions in order to see their judgments enforced abroad
giving the fact that no state will accept foreign expression of power in their
territory. This leads states accept that foreign sovereign authorities have
effect within their territory. To put in other words, reciprocity is employed
as a device to protect sovereignty prerogatives through which the recognition
and enforcement of foreign judgments can be ensured, and that, by inciting
foreign sovereigns to make the necessary concessions. Thus, Reciprocity has
always been employed as an efficient guarantee to respect sovereignty
prerogative. As a result, the recognition and enforcement practices will be
liberalized. This means that the liberalization of judgments recognition is not
an end in itself; it is just a result.
With this respect, sovereign may have two approaches to the
problem. Either they opt for a unilateral application of the notion of
reciprocity, or for multilateral application of the reciprocity. The Unilateral
application refers to the policy chosen unilaterally by a sovereign. This can
happen either by the consent to accept foreign judgments as independent state;
or, on the contrary, to slam the door and to refuse the recognition and
enforcement of foreign judgments. The multilateral application refers, on the
other hand, to the efforts undertaken by sovereign to establish in a formal way
methods and applications of the reciprocity. Both approaches reflect the
traditional role of the reciprocity rule.
Regardless its methods of the application, reciprocity has
always been applied as the rational through which extraterritorial effect of
foreign judgments were granted when they were taken abroad. Accordingly, we
should address, in a first chapter, the role of the reciprocity through its
unilateral application (Chapter I), before addressing, in a
second chapter, its role through multilateral application (Chapter
II).
Chapter
I: The Traditional Role through the Unilateral Application of Reciprocity
The unilateral application of reciprocity refers to the
attitude that one state adopts as a solution to the problems of recognition and
enforcement of foreign judgments. The solutions differ with regard to the
aspect emphesized in the foreign judgments. In effect, foreign judgments can be
seen as a determination of private dispute and an exercise of state
authority44(*). On the one
hand, countries that consider that a judgment is a mere resolution of an
international dispute favour judgments recognition and consider that a decision
rendered abroad is binding as long as the foreign proceeding was regular and
fair45(*). In this
context, reciprocity may tend to ensure the reception of foreign judgments
through a positive application and that by showing the desire to enforce
foreign judgments. On the other hand, countries that focus on the fact that a
judgment is a judicial declaration of a sovereign authority, consider that
foreign judgments encroach on the forum prerogative and use sovereignty as
bargaining chip exacting reciprocity as a precondition to judgments
recognition46(*). As a
consequence, and in both situations, reciprocity is used as an inducenment and
an incentive for foreign countries to liberate their judgments recognition
practice. Ultimately, this may lead to the adoption of harmonized standards
that meet other countries' expectations.
Therefore, It is better to deal with reciprocity as a positive
requirement in a first section (Section I) before dealing with
reciprocity as a negative requirement in a second section (Section
II).
Section
I: Reciprocity as a Positive Requirement for the Harmonization of Standards for
the Recognition and Enforcement of Foreign Judgments: The Doctrine Comity
The reciprocity, as a positive principle, finds its origin in
the doctrine of Comitas Gentium47(*). In fact, the concept of Comitas gentium or
Comity was suggested by legal scholars to be a happy solution to the
problem of both respecting territorial sovereignty and the recognition and
enforcement of foreign judgments48(*). Therefore, it is worthy to discuss the notion of
the positive reciprocity (Paragraph I) before analysing its
impact on the harmonization of standards for the recognition and enforcement of
foreign judgments (Paragraph II).
Paragraph A - The notion of Positive reciprocity or Comity
The notion of the positive reciprocity has a long evolution
and controversial development. It passed from an attitude of a mere courtesy
and a good will for states accepting foreign judgments to have effect within
the limits of their territories, (I) to the rule which
underlies the recognition and enforcement of foreign judgments
(II).
I -
Comity as an attitude of a mere courtesy and good will
As it was already states, one of the most unquestionable
principles in private international law is that no judgments would have any
extraterritorial effect outside the countries where they were issued. The very
obvious question that might arise in these circumstances is how to justify the
reception of foreign sovereign acts within the territories of sovereign states.
The problem did not seem to have existed under the Roman law where the system
seemed to favour the recognition and enforcement of foreign judgments49(*). Under the Roman law,
judgments rendered abroad were not seen as the product of foreign legal
systems, but simply a resolution of a private dispute50(*). This conception of foreign
judgments led to the recognition of foreign judgments on the basis of res
judicata51(*)
principle52(*).
However, as foreign states begun to emerge within defined
territories, where each sovereign state governed and controlled exclusively
anyone who came under its control based on the idea of sovereignty as a supreme
dominion, authority or rule of independent states53(*), the reception of foreign acts
became to be perceived as a threat to the state's supreme dominion. Under this
conception foreign judgments came to be regarded as governmental acts whose
compulsory effect should be limited to the sovereign's territory54(*). The question of the reception
of foreign acts became problematic with the rise of international commerce and
the interaction between different foreign states.
In France, D'Argentré seemed to find a solution for
this problem in an attempt to settle the controversy of conflict of
inter-states sovereigns in France and especially those of Bretagne and the
other French sovereigns55(*). For him, even though the rules of each nation were
exclusively territorial and that could not be applicable in other dominions,
there was the exception of what was called «personal laws»56(*). Those laws are applicable to
certain persons despite the place where they were situated including outside
their respective countries57(*). This doctrine was developed later by Italian jurists
under the name of the «Statutist Doctrine». The Italians created a
system of conflict which incorporated elements of both the personal law from
the Roman system and the territorial rule from feudalism58(*). The statutist doctrine was
based on the idea that a court could determine the applicable law by looking at
the nature of the laws themselves. The laws were categorized as real i.e.
effective only within the limits of the legislating sovereign's territory,
personal i.e. effective wherever the affected person was situated, or mixed
i.e. laws that were neither real nor personal59(*).
This system seemed to satisfy Dutch jurists who needed a legal
methodology that would allow the harmonization of the law of the Dutch
provinces after getting their independence from Spain. The aim of such
methodology was promoting the unification of the Dutch provinces while
maintaining stability60(*).
By insisting on the sovereignty of each nation and the
exceptional character of the application of foreign laws, Paul Voet described
that when one nation needed to observe Comiter the laws of other
nations in order to avoid disturbing settled questions, foreign laws were often
given effect which goes beyond the territory where they were
established61(*). Later,
Jean Voet developed the idea derived from the word Comiter. He
explained that nothing obliged a sovereign state to apply foreign law, even
personal, but the application of the foreign law by one nation is possible
ex comitate62(*).
The concept of comity - or courtesy among political entities
involving mutual recognition of legislative, executive and judicial acts - was
finalized by Ulrich Huber when he set forth the three principles according to
which foreign law could be applied within the geographic territory of another
sovereign63(*). First, he
stated that all states were assumed to have exclusive sovereignty within, but
not beyond, their national territory where they plenty exercise their
sovereignty. Secondly, all persons who were present within the sovereign
territory, even temporarily, were subjected to the state's sovereign authority.
Finally, so far that rights acquired under the foreign law did not prejudice to
the power and right and privileges of other governments, sovereigns could apply
foreign law on the basis of comity.
It is important to point out that Huber conception of comity
consisted in the possibility and not the obligation of foreign sovereign to
apply foreign laws. Foreign sovereigns were not required to apply foreign law,
but they did so as a matter of international courtesy and good will. Therefore,
the application of foreign law would only be declined when the interests of the
state or its subjects are impaired64(*).
This idea of comity was borrowed later by the American scholar
Joseph Story. He emphasised the importance of comity as a rational through
which foreign laws and judgments might have effects in foreign countries
despite the strict notion of sovereignty. For Justice Story, comity is the
solution that allows a country to accept foreign countries' expression of power
and authority. Influenced by Ulrich, Justice Story laid down four principles to
justify the extraterritorial application of foreign laws. He reminded that laws
have effect only within the nations' territories but he added that all nations
are equal and independent. The law of each nation is exclusively applicable
within the territories of each nation. Finally, each nation possesses exclusive
jurisdiction over its territory so that no state can bind persons or property
located outside that territory65(*).
Note that comity was conceived as a solution to the foreign
sovereign expression of power including judgments. Thus, the problem was not
limited to the application of foreign laws; but it was extended to the
reception of foreign judgments. As the expression of a state's sovereignty,
foreign judgments are considered to be governmental acts whose compulsory
effects are limited to the sovereign's territory. As foreign laws, the
recognition and enforcement of judgments are perceived as a threat to the
state's supremacy which allows it exclusively the use of public power to give
effect to a judgment.
II - Comity as a Rule Underlying the Recognition and
Enforcement of Foreign Judgments: From the Doctrine of Obligation to Hilton v.
Guyot:
English jurisprudence, which occasionally referred to comity
as a ground for the recognition and enforcement of foreign judgments66(*), preferred to replace the
notion of comity -as courtesy and good will among foreign sovereign -with a far
more defensible principle that has been called the doctrine of
obligation. This may be due the vagueness, imprecision and its arbitrary
character of the notion of courtesy67(*). It was even described by some scholars as
«uncertain in status and hollow in content»68(*).
It was in 1842 when the doctrine of obligation was laid down
by English courts69(*). It
stipulates that whenever a foreign court of a competent jurisdiction has
adjudicated a certain sum to be due from one person to another, the liability
to pay that sum becomes a legal obligation that may be enforced in England by
an action of debt70(*).
This means that foreign judgments create obligations which can be compared to
those arising from contracts, and these obligations are enforced in England by
an action on the debt71(*). It is then for the debtor/defendant, once the
judgment is proved, to show why he should not perform the obligation72(*).
Later, English courts confirmed their disavowal to the
doctrine of comity and repeated the doctrine of obligation in the case of
Schibsby v. Westenholz73(*). It was stated that «the true principle on
which the judgments of foreign tribunals are enforced in England is that...the
judgments of court of a competent jurisdiction over the defendant imposes a
duty or obligation on the defendant to pay a sum of money for which
judgment is given, which the courts of the country are bound to enforce; and
consequently that anything which negatives that duty, or form a legal excuse
for not performing it, is a defence on the action74(*)».
Once the recognition and enforcement of foreign judgments was
treated as an obligation, it was necessary to lay down conditions for foreign
judgments to be enforced and recognized in England and to set out specific
grounds for non recognition75(*).
The doctrine of obligation was also criticized for failing to
reveal the policy consideration underlying the rules on the recognition and
enforcement of foreign judgments. It was considered that the doctrine was more
concerned with explaining why foreign judgments are recognized and enforces
rather than with explaining which foreign judgments should be recognized and
enforced.
Between the notion of obligation and the mere courtesy, comes
the famous legal and modern definition of comity provided by the Supreme Court
of the United States in Hilton v. Guyot in 1895. The definition was
laid down on the occasion of a case on the recognition and enforcement of a
French judgment in the United States. The Supreme Court, in defining the notion
of comity, stated that «Comity, in the legal sense, is neither a matter of
absolute obligation, on the one hand, nor of a mere courtesy and good will,
upon the other. But it is the recognition which one nation allows within its
territory to the legislative, executive or judicial acts of another nation,
having due regard both to international duty and convenience, and to rights of
its own citizens or of other persons who are under the protection of its
laws»76(*).
The Supreme Court confirmed that between the two extremes of a
binding obligation and the mere courtesy situates the notion of comity. Comity
is the consent by which a state accepts to give effect to foreign judgments
within its territory, not as a matter of obligation or mere good will, but as a
matter of acceptance taking into account common convenience and mutual
necessities77(*). In this
context, the New York Court of Appeal expressed in the decision in Johnston
v. Société Générale Transatlantique, citing
Brown J. in Mast, Foos & Co. v. Stover Mfg Co.78(*) that «comity is not a
rule of law, but it is a rule of practice, convenience and expediency. It is
something more than mere courtesy, which implied only deference to the opinion
of other, since it has substantial value in securing uniformity of decision,
and discouraging repeated litigation of the same question79(*)».
The same idea was confirmed later by Third Circuit Court of
Appeal in Somportex Ltd. v. Philadelphia Chewing Gum Corp. where the
Court of Appeal stated that «Comity is the recognition which one nation
extends within its own territory to the legislative, executive, or judicial
acts of another. It is not a rule of law, but one of practice, convenience, and
expediency. Although more than mere courtesy and accommodation, comity does
not achieve the force of an imperative or obligation. Rather, it is a
nation's expression of understanding which demonstrates due regards both to
international duty and convenience and to the rights of persons protected by
its own laws. Comity should be withheld only when acceptance would be contrary
or prejudicial to the interest of the nation called upon to give it
effect80(*). Consequently,
the modern definition of comity places the notion in a midway between binding
obligation and mere good will accorded to an act of sovereign.
Recently, the idea of comity was confirmed by the Canadian
Supreme Court. In 1990 Morguard Investment v. De Savoye case, the
Supreme Court of Canada adhered to the approach that comity should be the basis
of the judgment recognition between sister-provinces of Canada81(*). Later, in 2003, the approach
was extended to foreign judgments82(*). The Canadian Supreme Court recognized that when the
requirement of comity are met, «the judgment of [other states] courts
should be respected»83(*). In its definition of comity, the Canadian Supreme
Court cited the definition of the American Supreme Court in Hilton v.
Guyot84(*).
In order to clear the notion out from any arbitrary
interpretation, the Supreme Court of the United States had to lay down
conditions in their absence comity can not be granted to foreign judgments.
According to the Supreme, «where there has been opportunity for a full and
fair trial abroad before a court of a competent jurisdiction, conducting the
trial upon regular proceeding, after due citation or voluntary appearance of
the defendant, and under a system of jurisprudence likely to secure an
impartial administration of justice between the citizens of its own country and
those of other countries, and there is nothing to show either prejudice in the
court, or in the system of laws under which it was sitting, or fraud in
procuring the judgment, or any other special reason why the comity of this
nation should not allow it full effect, the merits of the case should not, in
an action brought in this country upon the judgment, be tried afresh85(*)». Whenever those
conditions are met, the enforcing court will be compelled to give effect to a
foreign judgment.
Paragraph B - The Application of Positive Reciprocity and its
Role in the Harmonization of Standards for the Recognition and Enforcement of
Foreign Judgments
Positive reciprocity refers to the practice of one state in
accepting foreign judgments and giving them effect within the limits of its
territories. It is the behaviour that one state wants and/or hopes to have from
other countries. This means that positive reciprocity is the attitude which
consists for a country to choose its own policy which consists in a liberal
practice for the recognition and enforcement of foreign judgments, with hope
that foreign countries would do the same in return86(*). This attitude has been
justified as an inducement for foreign courts to honour foreign
judgments87(*).
Following this line of arguments, comity consists in a state
adopting a liberal practice for the recognition and enforcement of foreign
judgments with the hope that its practice will induce other states to adopt the
same attitude in return; or, as it was described by Justice Story,
comity is «...a sort of moral necessity to do justice, in order that
justice may be done to us in return». This stems that a country will
recognize and enforce foreign judgments hoping that foreign countries would
reciprocally recognize and enforce judgments rendered by its courts. In other
words, each state will determine for itself a judgments regime that it wants to
be a model to be followed by other countries for the recognition and
enforcement of foreign judgments. Consequently, positive reciprocity is based
on the expected attitude of foreign countries and not the attitude reflected in
their laws.
How will this notion of positive reciprocity or comity lead to
a harmonized system of the recognition and enforcement of foreign judgments?
What role does reciprocity play as a positive attitude in harmonizing standards
for the recognition and enforcement of foreign judgments?
In adopting a positive reciprocity attitude, a state will
elaborate liberal standards for the recognition and enforcement that can be
imitated by foreign countries. Thus, states will not copy or imitate other
countries' practice of judgments recognition and enforcement of foreign
judgments, but they will imitate the expected reception of its liberal attitude
by foreign states. To put it in other words, states will just anticipate the
behavior that it wants for its judgments from the foreign countries88(*).
Consequently, comity or positive reciprocity plays a very
positive role89(*). It
facilitates, in fact, the circulation of judgments between foreign states. In
this context, it was pointed in Laker Airways, Ltd. v. Sabena, Belgium
World Airlines that «the central precept of comity teaches that...the
decisions of foreign tribunals should be given effect in domestic courts, since
recognition fosters international cooperation and encourage
reciprocity, thereby promoting predictability and stability through
satisfaction of mutual expectation. The interests of both forums are advanced,
the foreign court because its laws and policies have been vindicated; the
domestic country because international cooperation and ties have been
strengthened. The rule of law is also encouraged, which benefits all
nations90(*).»
In addition, comity can lead to improvement of foreign
countries' recognition practices. The important role of the positive
reciprocity can be shown through its positive impact in changing the
restrictive practices of recognition and enforcement of foreign judgments to a
more liberal one. In this respect, it was argued that the liberal attitude of
American court by granting comity to foreign judgments led to the change of
judgments policies in countries that refuse to recognize foreign judgments in
the absence of formal treaties on judgments recognition91(*); or in those countries which
require reciprocity as a precondition to the recognition and enforcement of
foreign judgments92(*). It
was argued that, in Germany for example, «There have been no recent court
decisions that have denied the enforcement of American judgments on the basis
of reciprocity93(*)»
«thanks to the fact that the United States so freely recognizes German
judgments»94(*).
To this extent, by influencing foreign countries to soften
their standards of the recognition and enforcement of foreign judgments, comity
leads essentially to cooperation among countries based on mutual convenienced
and expediency. The country which decided to soften its recognition practice
would do that to satisfy the expectation of countries which have liberal
practices. This idea was expressly cited in Laker Airways Ltd, v. Sabena,
Belgium World Airlines where the American court pointed that «comity
compels national courts to act at all times to increase the international legal
ties that advance the rule of law within and among nations95(*).
However, the non application and non respect of the rule of
reciprocal appropriateness may lead to retaliation measurement from foreign
countries. That is why, for many countries, reciprocity should be organized to
produce its best effect and ensure cooperation.
Section
II: Reciprocity as a Negative Requirement or Prerequisite to the Recognition
and Enforcement of Foreign Judgments
Reciprocity in this context is more complicated than positive
reciprocity. This complication is due to different approaches that underlie the
negative reciprocity. Unlike positive reciprocity, negative reciprocity was not
defined. It has always been referred to through its application which varies
from one country to another. While comity requires that conclusive effect
should be granted to foreign judgments whenever its requirements are met,
negative reciprocity requires that a valid judgment should be thrown whenever
the forum's judgments are not given effect by the foreign court from which the
judgment is issued. Therefore, it is better to explain the notion of negative
reciprocity (Paragraph A) before analysing its role in the
harmonization of standards for the recognition and enforcement of foreign
judgments (Paragraph B).
Paragraph A - The Notion of Negative Reciprocity
The negative reciprocity refers to the rules whereby a system
of law subjects the recognition and enforcement of foreign judgments to the
fulfilment of the reciprocity requirement. Reciprocity acts here as a
precondition imposed by the state. It obliges the enforcing court to decline to
recognize and enforce a foreign judgment whenever it appears that, in similar
situation, the rendering foreign court does not give effect to judgments issued
by the enforcing court.
Negative reciprocity is universally rooted in the field of the
recognition and enforcement of foreign judgments especially in the civil law
countries. This is basically due to the historical consequences of the
application notion of sovereignty. In effect, sovereignty favours the approach
consisting in either disregarding foreign courts decisions or honouring
judgments rendered in states that honour the forum's judgments96(*). In this context, reciprocity
appears basically as a manifestation of the sovereignty principle97(*). It is applied to protect the
abstract interest of the state's dignity98(*). To illustrate this situation, an example from
Germany can be given. In effect, during the parliamentary discussions of the
code of civil procedure (ZPO) reciprocity was retained to protect the honour
and the dignity of the German Empire; and negative reciprocity is, therefore,
conceived as a safeguard which restrict the liberal acceptance of
judgment99(*) when foreign
courts do not respect the authority of the enforcing court.
The sovereign in this context establishes the legal framework
of the recognition and enforcement of foreign judgments based on the attitude
of foreign countries. Reciprocity here limits this liberal practice subjects it
to the reciprocal treatment or liberal practice from foreign countries. An
example from Tunisia can illustrate this situation. In 1998, the Tunisian
Private International Law code was enacted. During the parliamentary
discussions the government introduced the notion of reciprocity as «a
safeguard to the opening of the Tunisian system to foreign legal
regimes»100(*). It
was affirmed that despite the fact that the target of the private international
law is to provide coordination and harmonization of different legal regimes,
this target can only be achieved through the notion of reciprocity. Conceived
as «safety belt», reciprocity slams the door before foreign judgments
which do not respect the rule of reciprocity101(*).
Moreover, reciprocity can be a tool of retaliation against
states which do not recognize foreign judgments. Reciprocity as a tool of
retaliation is generally applied by states which have liberal judgments
recognition practice but are disappointed by the restrictive practices of
foreign states. The aforementioned Hilton v. Guyot gives a good
illustration of the negative reciprocity as a tool of retaliation. In that
case, and despite the fact the Supreme Court declared its mission to give
effect to foreign judgment on the basis of comity (positive reciprocity), the
Supreme Court refused the recognition of a French judgment of the basis that
French courts do not give effect to American Judgments and required negative
reciprocity as condition to grant comity102(*). The Supreme Court stated that «there is a
distinct and independent ground upon which we are satisfied that the comity of
our nation does not require us to give conclusive effect to judgments of the
court of France; and that ground is the want of reciprocity»103(*). Consequently, the doctrine
of reciprocity as prerequisite for the recognition can be described as follows:
«courts are required to do, not as justice and reason require, but as they
are done by»104(*).
Despite the worldwide application of reciprocity as a
precondition for the recognition and enforcement of foreign judgments, there is
no universal agreement on the scope of reciprocity requirement as a negative
concept, and its application varies from one country to another105(*). It can be applied broadly
to include all patrimonial and matrimonial matters, or its scope can be
restricted to the recognition and enforcement of money judgments; it can be
applied as a reaction against the states that deny the forum's decisions or
just against judgment creditors who are nationals of the offending
state106(*); in some
extreme situations reciprocity is not only applied as a precondition applied by
the courts to check the regularity of the foreign judgment, but also can be
applied as a post-condition in the phase of the substantial enforcement of the
foreign judgment107(*).
To summarize, reciprocity is conceived as the price to be paid
to get the benefit of the recognition and enforcement of one country's
judgments abroad. It is also a control instrument which allows a country to
oblige a foreign country to respect one country's decisions in the absence of
international instruments regulating the issue of the movement of judgments.
Unlike the approach of positive reciprocity, which accepts the deference to
foreign law and grants comity to foreign judgments whenever the foreign
judgment is compatible with the local system of law and meets certain
procedural standards, negative reciprocity focuses on the concessions that a
country must make to ensure extraterritorial effect of its judgments.
It has been argued that the reciprocity requirement is far
from being a factor leading to the harmonization of the solution of the private
international law because it leads states to align themselves with the less
generous solution of the recognition and enforcement of foreign
judgments.108(*) In
effect, the reciprocity requirement has nothing to do with the regularity of a
foreign judgment; «it does not filter judgments based on fraud, protect
parties from abuses of repeat litigation, or prevent enforcement of foreign
judgments decided under unjust foreign laws. To the contrary, reciprocity can
require that a perfectly valid foreign judgment between individuals be thrown
out» and be refused recognition and enforcement only because the foreign
rendering court refused to give effect to judgments emanating from the
enforcing court109(*).
Such a practice leads to the prevention of universal judgment recognition by
creating stalemates between countries with reciprocity provisions110(*).
Consequently, two countries with a negative reciprocity
requirement will refrain from giving effect to judgments rendered in their
respective courts unless they have the guarantee that the other would do the
same. In order to start having effect, one of countries must start. However,
the general opinion is that the application of the reciprocity rule as a
precondition for the recognition and enforcement of foreign judgments may lead
to retaliation from other countries. That is true. The case of Hilton v.
Guyot gives the best example concerning this situation.
On the other hand, it was argued also that reciprocity
requirement encourages liberal judgment recognition practices among countries
and may lead to positive results, and thus, to the harmonization of standards
for the recognition and enforcement of foreign judgments.
It is argued that reciprocity provides an incentive for
foreign countries to change their policies. Two examples can illustrate this
situation:
First, that was the case of France whose rule of procedure did
not give effect to foreign judgments. In effect, article 121 of the code
Michaut provided that: «Judgments rendered...in foreign kingdoms and
sovereignties...shall have no lien or execution in our kingdom...and
notwithstanding such judgments, our subjects against whom they have been
rendered may contest their rights anew before our judges». After being
refused recognition of its judgment by the German court on the basis of
reciprocity, the French Cour de Cassation abandoned its practice of
subjecting foreign judgments to a révision au fond and the law
was changed to allow a liberal practice for the recognition and enforcement of
foreign judgments111(*).
A second example can be given from the United States.
California was one of the first states of the United States to abandon
reciprocity. In 1907, after German court refused to recognize California
judgments against a German insurer, California enacted its Code Civil Procedure
in 1915 which overturned the reciprocity requirement. The legislation's purpose
was to improve the prospects of enforcing Californian judgments abroad
especially in foreign states that have reciprocity rule and that by making it
clear that foreign judgments would be recognized in California112(*). Both examples illustrate
how a country, which usually does not honour foreign judgments, changes its
attitude because a foreign country reciprocally refuses to give effect to
judgments emanating rendered in its courts.
It has been argued also that reciprocity does promote
cooperation when it is applied by countries engaged in a series of interaction
over time113(*). Some
theories were developed to explain how reciprocity creates incentives to
recognize foreign judgments improve their restrictive judgments recognition
practices.
Through the Prisoners' Dilemma114(*), Game Theorists115(*) argue that recognition and
enforcement can be ensured only through the condition of reciprocity116(*). The key feature of the
Prisoners' Dilemma is that the players are faced with the decision to
cooperate. However, the players - states - are incapable of cooperating since
they do not trust each other. Applying this situation to the recognition and
enforcement of foreign judgments, two states will have to choose either to
cooperate and give effect to their respective judgments or prefer not to
cooperate and refuse the recognition and enforcement of their respective
judgments.
According to the Prisoners' Dilemma, even though the logical
solution for both countries is to cooperate and give effect to their respective
judgments, both countries would choose non-cooperation and refuse to give
effect to foreign judgments. Game theorists argue that this situation would not
happen if both countries have reciprocity requirements. Reciprocity will be the
guarantee or the commitment to cooperation because neither of the two countries
would prefer unilateral recognition but would like to get benefit from liberal
movement of judgments. Thus, each state would have the possibility to award
cooperation by accepting to give effect to foreign judgments, and will have the
possibility to punish non-cooperation by refusing the recognition and
enforcement of the state which did not enforce the other country's
judgments117(*). The
repetition or iteration of the recognition and enforcement of their own
judgments for a period of time will represent an incentive for both states to
cooperate instead of defecting118(*).
Unilateral commitment to recognizing foreign judgments based
on comity does not represent a real commitment to enforce foreign judgments;
states can change their policy in accordance with their interests. However,
negative reciprocity may prevent such scenario. In addition, with most of the
states have long lists of hurdles that a foreign judgment has jump, reciprocity
can limit the application of what is considered restrictive conditions. In
fact, due to the differences between legal systems, one country can use wide
concepts like public policy to refuse the recognition and enforcement of
foreign judgments. Countries having negative reciprocity in their law may
immediately reciprocate; countries having positive reciprocity may become
disappointed and retaliate. For these reasons, the best solution was to
organise the application of reciprocity through formal reciprocal agreements.
However, despite the fact that reciprocity may help liberalize
judgments recognition, its negative impact on litigants and international
commerce hardly justifies its existence in the recognition and enforcement
field119(*). Some
scholars have argued that «it seems to be unfair to penalize private
litigants, who are neither to blame nor in a position to change matters, for
the rendition state's lack of comity»120(*).
Consequently, in order to avoid such situation along with
enhancing cooperation, a minimum level of harmony between states is necessary.
If this minimum level is lacking, states would find in reciprocity the line of
either create incentives to cooperate or to threat or attack
non-cooperation.
Chapter II: Multilateral Application of Reciprocity
Multilateral application of reciprocity seems to be necessary
in order to conciliate the recognition and enforcement of foreign judgments
with the concept of sovereignty, and therefore, to avoid uncertain,
unreasonable and complicated unilateral application of the reciprocity rule.
From this point of view, it is reasonable for foreign countries to enter into
reciprocal formal agreements to protect their litigants and international
commerce from the drastic consequences of the reciprocity requirement or the
differences between states' legal practices.
Through treaties, countries vindicate their sovereignty and
take into consideration the necessities of securing international transactions.
In effect, treaties are a tool to exercise sovereignty and to reach common
solution between sovereign and equal state. It is also a tool to express formal
commitments from other countries to recognize and enforce foreign judgments.
Multilateral application of reciprocity inevitably leads to the harmonization,
if not unification, of standards for the recognition and enforcement of foreign
judgments.
It is possible to make a distinction between three types of
conventions on recognition and enforcement121(*). The traditional type of judgments conventions is a
«simple convention» or «single convention». This kind of
convention addresses only recognition and enforcement. It entitles a judgment
resting on accepted jurisdictional bases listed in the convention recognition
and enforcement122(*).
Courts in this type of convention will retain their discretion to enforce
judgments rendered on non-listed bases of jurisdiction123(*).
The second type of convention is «double
convention». This kind of convention regulates judicial jurisdiction as
well as the recognition and enforcement of foreign judgments. Generally, this
kind of convention contains a list of required bases of jurisdiction,
«white list», and a list of prohibited bases of jurisdictions,
«black list». The courts of the originating states are required to
assume jurisdiction over a dispute if any of the basis of the white list are
asserted. Courts of the recognizing states will be required to give effects to
those judgments on the same basis. If any of the black list bases is asserted,
the rendering court may not take the dispute and the enforcing court may not
give it effect124(*).
The last type of convention is called «mixed
convention». This kind of convention contains, in addition to the white
and black lists of judicial jurisdiction, a «grey list». If a court
asserts its jurisdiction based on the grey list, the enforcing court will have
discretion to recognize and/or enforce the judgment125(*).
Whatever its type, these conventions are either bilateral
agreements (Section I) or multilateral agreements
(Section II).
Section I: Reciprocity and Bilateral Treaties
In this section, the use of reciprocity in bilateral treaties
should be addressed in a first paragraph (Paragraph A), before
addressing its role to harmonize standards for the recognition and enforcement
of foreign judgment (Paragraph B).
Paragraph A - The Use of Reciprocity in Bilateral Treaties on
Recognition and Enforcement of Foreign Judgments
Through a treaty two countries can not only ensure the
reciprocal recognition and enforcement of their respective judgments
(I), but also decide in which manner judgments emanating from
their courts would be given effect i.e. the procedure that should be followed
(II).
I -
Reciprocity as a Commitment to Recognize and Enforce Foreign Judgments Rendered
in the Contracting State
The purpose of such agreements is to provide a formal
commitment which ensures state will effectively recognize and enforce judgments
from the contracting state. In the absence of such formal commitment, foreign
judgments risk to face unilateral policies of the state where the enforcement
is sought. This means that foreign judgment may risk rejection - even though
the recipient country does not condition the recognition on the prior existence
of a treaty - and face the national standards for the recognition of foreign
judgments. There would be neither predictability nor insurance for judgment
creditors since they would be obliged to face standards that are sometimes
qualified as restrictive or illiberal.
Some countries condition the recognition and enforcement of
foreign judgments only on the establishment of a reciprocal treaty between them
and the concerned foreign countries126(*). This is the case of Finland, for example, where
foreign judgments - absent to a treaty on the matter - are recognized only if
the action is brought pursuant to a forum selection agreement or if it concerns
a foreign immovable.
In this context also, an example from the Netherlands can be
given. The Dutch Code of Civil Procedure states in its article 431 that
«Except the provisions of articles 985 to 994 [which deal with the
recognition pursuant to treaties and international conventions], judgments of a
foreign court may not be executed within the Netherlands». The article
continues by stating that «the disputes may be litigated before, and
decided by, a Dutch court anew»127(*). The only way to avoid this drastic situation is to
establish a treaty128(*).
For those countries a treaty is the only way to prove the
commitment of foreign country to a liberal recognition practice and to ensure
that their own judgments will be reciprocally given effect before the
contacting country's courts. The existence of such reciprocal treaties will
provide a proof for the satisfaction of the reciprocity requirement.
Generally, agreements of the kind - which provide the
commitment to recognize and enforce judgments rendered in a contracting state -
have the form of «Convention single» or «convention
simple». Such a convention commits countries to give effect to judgments
rendered by the courts of contracting states whenever the judgments rest on
accepted bases of jurisdiction. The 1984 convention between Canada and the
United Kingdom on the Reciprocal Recognition and Enforcement of Judgments in
Civil and Commercial Matters represents a good illustration. The Article VIII
of the convention provides that «Any judgment given by a court of one
Contracting State for the payment of a sum of money which could be registered
under this Convention...shall...be recognized in a court of the other
Contracting State as conclusive between the parties thereto in all proceedings
founded on the same cause of action129(*)».
Such agreements obviously provide a harmonized set of rules
for litigants, judges as well as legal practitioners. The latters would not be
obliged to check the very various recognition and enforcement standards each
time they are face foreign judgments. Thus, these agreements provide
predictability and certainty as regards to giving effect to foreign
judgments.
II -
Reciprocity in Implementing Simplified Procedures for the Recognition and
Enforcement of Foreign Judgments
As explained above, reciprocity can be an effective tool to
ensure the reciprocal reception of foreign judgments. Through the treaty,
reciprocity establishes a genuine commitment to recognize and enforce judgments
rendered by the courts of the contracting states. In addition, reciprocity can
also be used to negotiate other favourable conditions for judgment recognition
that are only accorded through the establishment of a treaty. For this reason,
the aim to enjoy such favourable conditions for judgments recognition incites
foreign countries to enter into bilateral.
The like agreements can be used to implement simplified
procedure for the recognition and enforcement of foreign judgments. The idea
that lies behind the conclusion of such agreements is to show to the foreign
country's readiness and willingness to grant effect to judgments rendered in
the contracting state through the privilege of a simplified procedures. The
establishment of such simplified procedures will inevitably avoid judgment
creditors national standards as well as lengthy and costly common law
procedures for judgments recognition and enforcement. Hence, such agreements
will facilitate the direct recognition and enforcement of foreign judgments.
That is exactly the case of England, and common law countries
in general, which apply a reciprocal procedure for the enforcement of foreign
judgments called the registration of judgments or the domestication of foreign
judgments130(*). With
the aim to increase the recognition of its judgments abroad, Parliament passed
the Foreign Judgment (Reciprocal Enforcement) Act 1933. The provisions of the
Act provide that judgments in civil and commercial matters shall be mutually
recognized and enforced131(*). However, this act applies only to countries that
«afford substantial reciprocity of treatment» to English
judgments132(*).
The bilateral agreement between Canada and the United Kingdom
can provide a good illustration of what has been advanced133(*). The Convention aims to
simplify the existing procedure for the reciprocal recognition and enforcement
of money judgments in civil and commercial matters between Canada and the
United Kingdom via the registration procedure134(*). The same situation can be found in Australia where
the Federal Parliament enacted the Foreign Judgments Act 1991. The Act makes
overseas judgments enforceable in Australia instead of bringing a cumbersome
common law action based on the judgment debt135(*). The legislation - which is based on substantial
reciprocity of enforcement whereby Australian court are urged to recognize a
foreign judgment rendered in a situation in which Australian court would
mutatis mutandis have exercised jurisdiction themselves - provides a new method
of enforcement by registration136(*).
Paragraph B - The Role of Reciprocity in Bilateral Treaties on
the Recognition and Enforcement of Foreign Judgments
Reciprocity has always been conceived as a tool in the hands
of governments to facilitate the negotiation of agreements that secure the
recognition of judgment rendered in contracting states and provides for more
favourable conditions or advantages of judgments enforcement137(*). In this context,
reciprocity has another significance. It refers to the organized legal rules
that are reciprocally applicable only between the contracting states through
treaties 138(*).
Reciprocity requirement is not left anymore to the national courts or
legislators, but it is a tool for diplomats to solve the problems that domestic
courts and legislators created139(*). Indeed, while negotiating the terms of the
agreement, each state will have to concede some privilege to the contracting
state to get the guarantee of reciprocal recognition and enforcement of their
judgments, or to get the privilege of a simplified procedure for the
recognition and enforcement of its judgments abroad. As result, through the
treaty, some obstacles will be eliminated and will be replaced by a new vision
which reflects the common interests of the contracting states.
Here again, by the conclusion of the treaty, states express
their willingness and consent to accord reciprocal advantages and benefits that
would result from the liberalization of the judgments recognition practices.
Through the treaty, the state will exercise its sovereignty and accept the
intrusion of foreign sovereign declaration in its domain.
The commitment to the recognition and enforcement of foreign
judgments or the implantation of a simplified procedure are considered as the
price to be paid for inducing foreign courts to give extraterritorial effect to
foreign judgments140(*).
Thus, reciprocity shows here the level of confidence that each country
reciprocally gives to another country. This is basically due to the level of
cooperation between the two contracting states.
With this regards, the application of reciprocity through
international agreement is simpler than that of unilateral application. It
applies through a treaty and ensures a formal commitment from the contracting
state to recognize and enforce judgments emanating from their respective
courts. Since the existence of reciprocity is proved by the treaty, it relieves
litigants from having the burden of proof of the existence of reciprocity.
Reciprocity, in case of a treaty, is asserted as a statutory and governmental
proof which shows that the contracting state does not only give effect to the
rendering court's judgments, but also it applies the same standards to
recognize and enforce judgments emanating from the contracting country.
However, the advantages that one state can get from a
bilateral agreement can be diminished when the application of the treaty itself
is subjected to the rule of reciprocity. Indeed, some states condition the
application of treaties to the proof of reciprocity as a precondition to the
application of the treaty. This is the case for example of the article 32 of
the Tunisian Constitution which makes from reciprocity a fundamental condition
for the application of the treaty. The article 32 reads that «treaties are
applied only after their ratification and subject to their application by the
contracting party».
Another point can be raised which concerns non-contracting
parties to the convention. In effect, non-contracting states are usually
excluded from the application of the treaties. This is logical since the
contracting countries have to compromise their laws or part of their systems to
reach an agreement141(*). As a result, they exclude countries which did not
pay that price to ensure the recognition of their judgments even though their
recognition practice is considered as liberal. This means that non-contracting
countries will continue to be discriminated and their judgments will continue
to face the national standards for the recognition and enforcement of their
judgments which are based on unilateral application of reciprocity or that are
sometimes described as restrictive.
Section II: Reciprocity and Multilateral Treaties
Despite the advantages that bilateral judgments recognition
treaties can afford, a problem may arise from the duplication and the
proliferation of such agreements142(*). For this reason, multilateral treaties seem to be
the best way to ensure harmonization of standards for accepting foreign
judgments on a more global level. Multilateral treaties ensure the same
advantages as the bilateral treaties but at a larger scale.
In this section, efforts endeavoured to conclude reciprocal
judgments recognition agreement will be discussed. It will be concluded that
where such reciprocal agreements were implemented regionally (Paragraph
A), attempts to define international standards on recognition and
enforcement practice at a global level, i.e. to create a convention which would
be joined by many countries and which would cover a broad range of foreign
judgments, are far from being satisfactory (Paragraph B).
Paragraph A - Regional Treaties
No doubt that judgments recognition treaties are signed to
remove obstacles which face judgments when taken abroad. Those treaties give
general guidance with respect to the principles that govern the recognition and
enforcement of foreign judgments. As far as regional treaties are concerned,
one can notice that principles governing judgments recognition within a
community system are similar to those established in a federal system for
interstate recognition either under constitutional provisions or through
uniform legislation143(*).
For the purpose of this paragraph, regional treaties refer to
special regimes of recognition and enforcement of judgments which were created
to facilitate federal or community systems. Federal and community systems have
similar characteristics. Both are divided into independent territorial legal
units144(*) which have
their own legal systems. This means that judgments rendered in sister states
belonging to the same federal or community state are treated as «foreign
judgments» and therefore need special procedure in order to have effect in
another sister state in the same manner as foreign judgments. For this reason,
a community or a federation may seek, for a variety of reasons - which can be
economic, political, and social reasons - to harmonize and unify the
recognition and enforcement of judgments rendered in states belonging to the
same federation and/or community in order to secure the establishment of a
common market through facilitating judgments recognition.
Based upon reciprocal treatments of judgments, those regimes
expressed a strong willingness to avoid traditional and national rules for the
recognition and enforcement of foreign judgments and to establish a system of
law that takes into consideration their unique interests. For this reason, it
is worthy to mention the American «Full Faith and Credit Clause»
(I), before analyzing reciprocity in multilateral regional
treaties between independent countries represented by the European system of
the recognition and enforcement of foreign judgments (II).
I -
The Full Faith and Credit Clause
As mentioned in the introduction of this paragraph, provinces
and states that constitute a federal country are separate and independent legal
units. Each legal unit makes its own rule of conflict of law. As concerns the
recognition and enforcement of foreign judgments, judgments rendered in one
state are considered as the product of a legal system that differ in important
respects both substantial and procedural rules of another sister state where
the judgments are sought to be enforced145(*). This means that in a federation like the United
States, Australia or Canada, sister states' judgments are seen - by the
jurisdiction where the enforcement - are viewed as foreign judgments in spite
the fact that they emanate from sister states 146(*). As a result and in the
absence of federal guidance which obliges one sister state to recognize and
enforce another sister state judgments, the judgments of states forming the
same federal entity are not automatically enforced and recognized147(*).
For this reason the Full Faith and Credit Clause was drafted
in countries like the United States and Australia to control the interstate
recognition of judgments and limit the freedom of states to adopt their own
rules of interstate recognition. Therefore, in order to understand how
reciprocity plays through federal guidance, the question of the history of the
Full Faith and Credit Clause should be addressed (A), before
addressing its impact on the recognition and enforcement of judgments
(B).
A -
The History of the Full Faith and Credit Clause in the United States
Before the independence, American Colonies were considered
foreign nations to each other. They used to apply the English traditional rules
for the recognition and enforcement of foreign judgment. This application led
to the problem of judgments recognition and the appearance of migratory
debtors, who could easily avoid their creditors simply by moving to another
state.
To remedy this situation, there had been isolated and
unsuccessful attempts to deal with the enforcement issue148(*). An example from the
province of Connecticut can be given where a judgment recognition statute was
enacted. By means of this statute judgments rendered in sister colonies were
given «due respect» but subject to the reciprocity requirement. The
law read that «this order shall be accounted valid and improved only for
the advantage of such as live within some of the confederate colonies; and
where the verdict in the courts of this colony may receive reciprocal respect
by a like order established by the general court of that colony»149(*). That was also the case of
the Massachusetts which enacted a law in 1774 stipulating that a judgment
rendered in another colony shall have the same effect and operation in
Massachusetts as in the jurisdiction where it was made150(*).
After the independence of the colonies and in order to make a
single country, the framers of the US Constitution decided to avoid problems of
inter-state dispute resolution and especially those concerning the recognition
and enforcement of judgments.
The Articles of Confederation, which preamble stated the
purpose of securing and perpetuating mutual friendship and intercourse among
the people of the different states, provides in its article IV151(*) that «Full Faith and
Credit shall be given in each State to the public Acts, Records, and judicial
Proceeding of every other State152(*)».
The drafting of the Full Faith and Credit Clause was conceived
of as a tool of integration to ensure that state borders would not be
coextensive with the validity of court judgments, believing that an interlinked
judicial system would facilitate further linkages among the states. This Clause
aimed basically to ensure the unity of the country which could be frustrated by
the refusal of one state to give effect to judgments rendered in another sister
state153(*).
B -
Full Faith and Credit Clause and Reciprocity: Effect on the Recognition and
Enforcement of Sister-Judgments
The Full Faith and Credit Clause addresses the duties of the
states to respect and enforce the judicial rulings rendered in any sister state
of the American Federation154(*). This means that sister state judgments must be
given the same preclusive effect as they have in the state of origin subject to
limited exceptions155(*).
The Full Faith and Credit Clause «serves as a unifying
element for the recognition and enforcement of judgment in [the American]
system156(*)». The
clause made the duty to recognize and enforce sister state judgments
obligatory. Thus, the enforcing court of a sister state should not refuse to
give full faith and credit to a sister state judgment and that even on the
ground that the judgment violates the public policy of the enforcing
state157(*).
However, it is important to point out that the Full Faith and
Credit does not entitle direct execution in another sister state but
«merely commands that states admit the public acts, records and judicial
proceeding of other states as conclusive evidence and contents...158(*)». It establishes
«an ironclad rule of preclusion» since the litigated matters cannot
be litigated again elsewhere. Sister state judgments continue to be considered,
strictly speaking, as foreign judgments and a separate action on the debt needs
to be filled by the judgment creditor in the enforcing state to have effect in
another state159(*).
Despite the fact that the Constitution gave the Congress the power to enact
statutes under the Full and Faith Credit Clause, issues concerning the
recognition and enforcement of sister-state judgments were entirely developed
by the American jurisprudence under the guidance of the American Supreme
Court160(*).
The jurisprudence on this subject confirmed that states are
not always compelled to recognize and enforce judgment rendered in a sister
state court. The enforcing state still can bar the recognition and enforcement
of a sister state whenever the judgments did not respect the due process
requirement of the Fifth and the Fourteenth Amendments161(*). These are basically applied
whenever the defendant did not receive adequate notice or an opportunity to be
heard. The judgment also may be refused full faith and credit when the
rendering court lacked adjudicatory jurisdiction either because the judgment
was rendered without personal or subject matter jurisdiction162(*). Rooms for denying
recognition and enforcement of sister state judgments still exist especially
when the court renders a default judgment163(*).
In addition, the Full Faith and Credit does not require a
direct recognition of sister state judgments. This means that common law action
on debt should be brought before a court in a sister. Obviously Filling a new
action on the debt is burdensome for the judgment creditor. For this reason,
steps were taken to simplify the procedure of the enforcement recognition and
that by the enactment of a uniform legislation: «the Uniform Judgment
Money Enforcement Act». The Act ensures that judgments rendered by sister
states be enforced through a summary procedure.
Nevertheless, the Full Faith and Credit Clause provides just
constitutional command and ensured mutual recognition and enforcement of
sister-state judgments and thus facilitates the movement of judgment among the
sister states. It «rests on the belief that national unity will be
promoted by requiring individual states to give effect to the judicial decision
of other states164(*)». In Milwaukee County v. M.E White Co,
it was held that «the very purpose of the Full and Faith Credit Clause was
to alter the status of the several states as independent foreign sovereignties,
each free to ignore obligations created under the laws or by the judicial
proceedings of the others, and to make them integral parts of a single nation
throughout which a remedy upon a just obligation may be demanded as of right
irrespective of the state of its origin»165(*).
Where such clause does not exist, steps were taken to enact
legislation on the recognition and enforcement among the sister states of the
federal country. This is the case for Canada where the constitutional command
of the Full Faith and Credit is lacking. The Canadian Supreme Court had to
alter the system of the recognition and enforcement between sister provinces of
Canada. It recognized that a change in the law of judgments was needed to
satisfy the specific needs of the Canadian federation in which the Constitution
aims to create a single country. The Supreme, indeed, affirmed that «a
regime of mutual recognition of judgments across the country is inherent in a
federation166(*)».
II - The Brussels Regime
The Brussels regime167(*) is the best example of imposing a harmonized and
communitarian scheme on jurisdiction and free movement of civil and commercial
judgments among the European member states168(*) . Unlike the Full Faith and Credit Clause, the
unification of the system of the recognition and enforcement of foreign
judgments is achieved through international conventions among different foreign
countries.
The Brussels Regime is composed initially of a number of
treaties. Those treaties were considered as tremendous accomplishment in
European Community (henceforth EC) law169(*). The Brussels Regime shows how a reciprocal
judgments convention leads to a unified system between countries of different
languages, culture and legal traditions (B) and this by means
of establishing a single system for the recognition and enforcement of foreign
judgments. (A)
A -
The Establishment of the Unified European Standards for the Recognition and
Enforcement of Judgments
The Brussels Regime has established unified European standards
for reciprocal recognition and enforcement of judgments among the European
member states. The first step towards such a unified regime was the
establishment of the Brussels Convention (a). It was followed
by the extension of the Convention by the parallel Lugano Convention to the
European Free Trade Association (EFTA) (b). It was finalized
by the adoption of the Brussels Regulation (c)170(*).
a -
The Establishment of the Brussels Convention
Following the Article 220 of the Treaty of Rome of 1957, which
established the European Economic Community (EEC), the Committee of Experts
from the six original member countries of the EEC171(*) adopted a preliminary draft
at the fifteenth session of the committee in December 1964. The Article 220 of
the Treaty of Rome provides that «Member States shall, so far as
necessary, enter into negotiations with each other with a view to securing for
the benefits of their nationals: ... - the simplification of formalities
governing the reciprocal recognition and enforcement of foreign
judgments of courts and tribunals awards».
The final draft of the Convention was adopted in 1966
following the comments from governments and various bar associations, chambers
of commerce and other interested groups. The final text of «The Convention
on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters», known as the Brussels Convention (B.C), was signed in Brussels
in September 27, 1968 and entered into force in February 1, 1973172(*).
The adoption of the Convention was not considered as
sufficient in itself for the «foundation of the uniquely European body of
procedural law». Giving the fact that the Convention joins many countries
which have their own legal traditions, the risk of disparate interpretation and
applications of its important terms exists. This is contrary to the goal of the
Convention of making a coherent legal system for the recognition and
enforcement of foreign judgments. For this reason and with the aim to eliminate
the problem of disparate interpretation and application of the Convention, the
original member states signed a protocol in 1971 by which they granted the
European Court of Justice (ECJ) the competence to interpret and to give binding
rulings on questions arising under the Brussels Convention173(*). This protocol was
considered as «a singular event in the continuing history of legal, social
and political integration in Europe» since the «European Court of
Justice is the first international court to be afforded jurisdiction over
private international law convention» and as such, the European Court of
Justice can solve in an uniform way problems of interpretation arising from the
Brussels Convention174(*).
b - The Lugano
Convention
One scholar wrote that «because of the magnitude of trade
between the EEC member states and the European Free Trade Association states
(EFTA)175(*), it was to
be expected that the need would arise for a judgment given in a Community
member state to be enforced in an EFTA country, or for a judgment given in an
EFTA member country to be enforced in a member state of the European
Community.176(*)»
To facilitate the recognition and enforcement of foreign
judgments between the European Community with other European states, all member
states of the European Free Trade Association (EFTA)177(*) showed interest in making a
link between the EFTA member states and the European Community member states.
Thus, an agreement was signed in 1988 setting out jurisdictional rules and
rules relating to the recognition and enforcement of foreign judgments among
member states of the European Community and the European Free Trade
Association. The agreement was intended to ensure the free movement of
judgments in civil and commercial matters among member states of the EC and
EFTA.
Works to revise the Lugano Convention have started in order to
align the provisions of the Lugano Convention with the Brussels
Regulation178(*). On 28
March 2007, negotiations of a new Lugano Convention on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters
between the EC and certain EFTA Member States were concluded during a
diplomatic conference was held in Brussels179(*). The new Convention will replace the 1988 Lugano
Convention. «As a result, the rules for determining jurisdiction of the
courts will be similar in the EU and the EFTA States»180(*). Thus, the judgments
delivered by national courts of EC and EFTA Member States will be more easily
recognised and enforced in the other Member States181(*).
It is important to point out that the Lugano Convention
remains a separate agreement from the Brussels Convention. This is due to the
fact that the application of Lugano Convention is limited to specific
situations. According to its article 64 (old article 54B), the Lugano
convention «shall not prejudice the application... of the Council
Regulation..., of the Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters, signed at Brussels on 27 September
1968, and of the Protocol on interpretation of that Convention by the Court of
Justice of the European Communities, signed at Luxembourg on 3 June 1971, ...
as well as of the Agreement between the European Community and the Kingdom of
Denmark on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters, signed at Brussels on 19 October 2005. 182(*)» Thus, by the
combination of Brussels and Lugano Conventions, the same rules of jurisdiction
prevail between Western European Countries.
c -
From the Brussels Convention to the Brussels Regulation
To show that the judicial cooperation between the state
members of the European Community is a principal element of Community policy
rather than a simple governmental cooperation, the Council of European Union
promulgated it as a Regulation in 2000183(*). A «Regulation in the European Union is the
equivalent of primary legislation184(*)». It is directly effective in the member states
without the need for ratification or implementing legislation. The use of the
device of a Regulation avoids the need to go through the ratification process
by submitting the revised text to national parliaments185(*). This action has transformed
the Convention into a binding legal instrument between the states that
participated in the adoption of the Regulation186(*).
It is important to point out that the Regulation, which made
some changes to the Brussels Convention, adopted the same principles of the
Brussels and Lugano Conventions.
B -
Reciprocal Treatment under the Brussels Regime
The Brussels Regime ensures reciprocal recognition and
enforcement of judgments among the member states of the European Community and
the EFTA countries by establishing a «reciprocity safe
harbor»187(*). Both
conventions and the regulation state that judgments rendered in a member state
shall be automatically recognized in another member state.
The regime aims to facilitate the recognition and to introduce
an expeditious procedure for the enforcement of judgments obtained in one state
of the European Community throughout the rest of the community so that judgment
can to circulate freely within the contracting states of the community.
Therefore, the goal of ensuring the economic life of the European Community is
not disturbed by the difficulties of enforcement of judgments from other member
states.188(*) Such a
goal could be achieved only when a system of mutual trust is established among
the contracting states and through the harmonization of the law on jurisdiction
throughout the contracting parties.
The European judgment recognition system has not only
succeeded to replace domestic standards for the recognition and enforcement of
foreign judgments but it has also replaced all bilateral agreements concluded
between the member states of the European Union. It has exceeded the original
mandate granted by the article 220(4) of the EEC Treaty which merely simplified
formal requirements for the recognition and enforcement within the Member
States.
The success of the European system was described as
«resounding» since it could ensure both reciprocal recognition and
enforcement among the Member States judgments across legal and linguistic
barriers with minimal transaction costs189(*), and the creation of a federal recognition system
inside the European Union Community 190(*). Such system has been described as Europe's
«full faith and credit clause191(*)». The Convention contains single scheme rules
on direct international jurisdiction and the recognition and enforcement of
foreign judgments. One scholar wrote that «the Convention replaced an
indirect system of judgment enforcement applicable under the preexisting
treaties...with a direct system in which judgments issued in the courts of one
Member State would be enforceable per se in the courts of another Member
State»192(*).
Furthermore, it provides for reciprocal and automatic recognition and
enforcement of judgments granted by the courts of the contracting
countries193(*).
In addition, the Brussels Convention allowed non-European
countries to get benefit from the application of the convention, and especially
the non application of the exorbitant basis of jurisdiction, via entering in
bilateral agreements with some of the Convention's contracting parties by means
of negotiating bilateral agreements on the basis of the article 59 of the
Brussels Convention. Thanks to the said article, Australia and Canada succeeded
to enter into bilateral agreements with the United Kingdom and thus extend the
benefit from the application of the Brussels Convention to their own judgments.
Unfortunately, the entrance of the Brussels Regulation into force eliminated
the article 59194(*) but
without prejudice to the agreements established by the member states before the
entry into force of the regulation195(*).
Paragraph B - Worldwide Treaties: The Hague Efforts in
Drafting a Convention on Jurisdiction and Foreign Judgments in Civil and
Commercial Matters
The success of the Brussels and Lugano convention inspired
other countries to undertake negotiations in order to establish a worldwide
regime of judgments recognition based on reciprocal recognition and enforcement
of judgments. Such a worldwide convention aims to provide global harmonization
of standards for judgments recognition. In order to achieve this goal, works on
a multilateral agreement have been started at the Hague Conference on Private
International Law. It is agreed that a successful negotiation of such a
convention would be a huge step toward an international regime for enforcing
foreign court judgments196(*).
Although all of the scholars agreed about the benefits that
such agreement would bring, concluding a worldwide convention is a complicated
task. The complication is due to the differences between legal systems.
However, where efforts failed to conclude a wide-ranging convention
(I), negotiations succeeded to conclude a limited-scope
convention (II).
I -
The Hague Convention on Recognition and Enforcement of Judgments: Failure of
Efforts to Establish a Wide-Ranging Global Convention
Taking into consideration the need of international
transactions and the actual world situation which requires a legal structure
for the judgments recognition, a first step was taken and a convention on the
recognition and enforcement of foreign judgments on civil and commercial
matters was concluded in 1971197(*). However, although ratified, the convention has not
entered into effect since the states which ratified the convention did not
execute the required bilateral accords198(*). As for the European countries that ratified
it199(*), it was
replaced by the Brussels Convention which was completed almost in the same
time.
The Convention established a liberal system of recognition
since it required member states to recognize judgments of other member states
where foreign judgments are rendered on accepted basis of
jurisdiction200(*). In
its article 4, the 1971 Hague convention provides «A decision rendered in
one of the Contracting States shall be entitled to recognition and enforcement
in another Contracting State under the terms of this Convention».
Nevertheless, the nature of the convention was described as
«unsatisfactory» since it left signatories free to claim jurisdiction
on their own grounds and since its implementation required the cumbersome
process of executing bilateral agreements between states that wanted to get
benefit from the application of the Convention201(*).
A new attempt to conclude a worldwide convention on the
recognition and enforcement of foreign judgments started following the proposal
made by the United States in 1992202(*). Unlike the 1971 Hague Convention, it was suggested
that the new convention would be modeled on the Brussels Convention to create a
standard equivalent to full faith and credit between member states of the
Convention203(*).
Just like the Brussels Convention, the purpose of The Hague
Convention is to prohibit general reexamination of the judgments rendered by
courts of member states and guarantee compliance with the reciprocity rule
through reciprocal recognition and enforcement of the convention member states'
judgments204(*). In
this context, one scholar wrote «The judgment must come from a contracting
country if it is to be recognized and enforced under the Convention in another
contracting country, so reciprocity is inbuilt within the Convention205(*)». Therefore, «the
draft Hague Convention has significant symbolic value as a signal of increasing
harmonization and cooperation in international recognition and enforcement
practice, and international relation in general»206(*).
Giving the fact that the new draft Hague Convention was
intended to cover the majority of civil and commercial matters, it has,
therefore, a potential to be «powerful facilitators of economic
cooperation and integration»207(*). In this context, one scholar wrote that «the
proposed Hague convention represents an attempt to translate lessons of
regional enlightenment [The Full Faith and Credit of the American Constitution
and Brussels Regime] to a global audience»208(*).
A preliminary draft convention was adopted in 1999 and it was
revised in 2001. It took the form of a «mixed convention» which
contains, in addition to white list of accepted bases of jurisdiction and a
black list of prohibited bases of jurisdiction, a grey list of jurisdictional
bases which were neither permitted nor prohibited and gave the enforcing court
discretion to either give effect to judgments based on such bases209(*). The convention drafts
provide for general recognition and enforcement of judgments of the contracting
states which are rendered on the ground of the accepted bases of jurisdiction
are listed in the white list. Judgments issued on the ground of the black list
will be rejected. However, unlike the previous attempt of the 1971 Hague
convention, the 2001 draft allows member state courts to recognize and enforce
judgments rendered on the ground of national bases of jurisdiction provided
that those bases are not prohibited by the convention210(*).
However, this new attempt also for global harmonization was
considered as too ambitious for its time211(*). This was due not only to the fact that
participating countries were paying less attention to the global advantage of a
global judgments agreement than their own specific national goals212(*), but also to the divergent
legal traditions which hold dear rules of law that are not acceptable by other
countries213(*).
II -
The Hague Judgments Convention on the Choice of Courts Agreements
The Hague convention on jurisdiction and recognition and
enforcement of foreign judgments was considered as very ambitious project. A
consensus to establish worldwide uniform standards for judgments general
recognition failed and negotiations reached a deadlock. It was explained that
«it became apparent that it would not be possible to draw up a
satisfactory text of a «mixed» convention within a reasonable period
of time. The reasons for this included the wide differences in the existing
rules of jurisdiction in different states and the unforeseeable effects of
technological development...on the jurisdictional rules that might be laid down
by the Convention»214(*). to salvage the efforts of drafting global standards
for judgments recognition, the shape of the initial project had to be changed
to a smaller scope and more modest convention framework215(*). In fact, «it was
proposed that objective should be scaled down to a convention on choice of
courts agreements in business-to-business cases»216(*).
In June 30, 2005, a Convention on Choice of Court Agreements
was unanimously adopted and it is open for signature and ratification217(*). The Hague Convention on
Choice of Court Agreements regulates both jurisdiction to adjudicate and
judgments recognition of disputes governed in business to business choice of
court agreements. It establishes a judgments recognition safeguard that should
be applied by both the rendering and the enforcing courts218(*). In effect, a judgment
rendered on the basis of the parties' choice of forum «shall be recognized
and enforced in other contracting states»219(*). However, although scope the
convention is limited to exclusive choice of court agreements, the convention
makes it possible to extend, through reciprocal basis, to judgments rendered on
the basis of non-exclusive choice of court agreements220(*).
The Hague Convention on the Choice of Court Agreement was
described as «an important step in harmonizing national conflict of laws
rules that sometimes strain to manage the burgeoning traffic in transnational
litigation generated by global commerce221(*)». It provides greater certainty and
predictability for parties involved in business-to-business agreement and
international litigation222(*) and limits the negative impact of the unilateral
liberalization of national rules on judgments recognition without reciprocal
benefit from other countries223(*). As it states in its preamble, the principle aim of
the convention is «to promote international trade and investment through
enhanced judicial co-operation» by establishing «uniform rules on
jurisdiction and on recognition and enforcement of foreign judgments in civil
or commercial matters» and «an international legal regime that
provides certainty and ensures the effectiveness of exclusive choice of court
agreements between parties to commercial transactions and that governs the
recognition and enforcement of judgments resulting from proceedings based on
such agreements»224(*). It is hoped that the Convention will do for choice
of courts agreements what the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards is doing for arbitration
agreements225(*).
The Hague Choice of Court Agreement has the possibility of
creating greater certainty for business involved in international transactions
by offering a viable alternative to arbitration. A minimum functional
reciprocity between contracting states is more likely to be achieved throughout
this similar multilateral treaty226(*). The Convention «offers the possibility of both
realistic success in its adoption by member states, and a solid point of
departure from which The Hague could very well expand upon working toward more
comprehensive rules for jurisdictional equilibration227(*)».
Conclusion of Part I
It is possible to conclude that reciprocity plays an effective
role to harmonize standards for the recognition and enforcement of foreign
judgments. Applied unilaterally, reciprocity can change attitude of foreign
countries to align themselves either to liberal or restrictive judgments
recognition practices. It has the purpose of ensuring the recognition of
national judgments abroad or to incite foreign countries to enter into
agreement. On the other hand, reciprocity can take the form of an international
agreement. International treaties are very efficient in harmonizing and
unifying the rules for the recognition and enforcement of foreign judgments
since they draw a formal commitment from foreign states to adopt the same
standards.
It should be remembered that, in both contexts, reciprocity is
employed as a device for sovereignty. Where a country unilaterally or
multilaterally, positively or negatively applies the reciprocity rule, it
intensifies the idea of sovereignty228(*).
However, where reciprocity through treaties or comity is
sought and welcomed, it has been hardly criticized when it take the form of the
negative reciprocity. One scholar wrote mentioned that despite the fact that
this form of reciprocity may lead to the liberalization of judgments
recognition, that end hardly justified the application of the rule in the
recognition and enforcement of foreign judgments229(*). This is due to the fact
that the idea a reciprocity does not provide acceptable answers for the issues
of the recognition and enforcement of foreign judgments in addition to its
negative impact on litigants. That is why it has always been subject of critics
from the part of many scholars. Proponents of reciprocity agree that
reciprocity is an irrational and an absurd concept230(*). For others, even though
reciprocity could in fact help the liberalization of judgments recognition and
lead to a harmonized system of accepting foreign judgments, «that end
hardly justifies the means»231(*).
As a result, there has been a general consensus that
reciprocity as a negative concept is not welcomed in this field. With this
respect, one scholar wrote «Today, reciprocity no longer enjoys the
popularity it did in the nationalistic nineteenth century. Increasingly, courts
and legislatures reject this impediment...Even where reciprocity persists,
courts finds ways to ameliorate it«232(*).
Interestingly, «despite conventional wisdom, which
indicates that judgments reciprocity will disappear completely, the doctrine
has recently experienced a resurgence in popularity»233(*) especially in the United
States where work has been undertaking to give a new approach to the doctrine
of reciprocity. This new approach had led to the determination of a new role to
reciprocity in the field of the recognition and enforcement of foreign
judgments which has no link with the concept of sovereignty.
Part II - Reciprocity
Proposed Role: The Renewed Interest in the Reciprocity Requirement
As a result to the criticism addressed to the notion of
reciprocity along with the spread of the phenomenon of globalization and the
growth of international trade and transportation of goods and peoples, many
scholars predict the disappearance of reciprocity from the law of the
recognition and enforcement of foreign judgments. In other words, the
underlying basis of reciprocity - the notion of sovereignty - is disappearing.
The fast-growing factor of globalization attacks one of the basic elements of
sovereignty: the boundaries of the sovereign state. Therefore, for reciprocity
to subsist, it has to find new justification for its application.
Yet, despite the criticisms addressed the reciprocity, the
notion seems to resurrect. The resurrection was the result of long debates and
discussions in the United States. In effect, where the United States is
considering its own system of recognition and enforcement of foreign judgments,
reciprocity appears as a fundamental concept in the American new consideration.
Efforts were made by the American Law Institute (ALI)234(*) to give reciprocity a new
role in judgments recognition.
While reciprocity has always been applied as a defence for the
protection of the notion of sovereignty, the new approach of the ALI introduces
reciprocity only as defence for non-recognition of American judgments
abroad.
Starting from this point, and in order to better understand
the question, we should address the question of the reasons which led to make
from the concept of reciprocity a policy underlying the recognition and
enforcement of foreign judgments in the United States (Chapter
I), before addressing the question of its application and implication
in the landscape of the recognition and enforcement of foreign judgments
(Chapter II).
Chapter I: The Reasons behind the
Resurrection of the Reciprocity Requirement
While the United States is one of the leading players of
global economy235(*), it
is suffering from the refusal of recognition and enforcement of its judgments
abroad. This situation is described as unique since the United States is
considered among the countries which have the most liberal judgments
recognition on the basis of comity. The situation is aggravated by the fact
that the United States is not party to any international convention on the
recognition and enforcement of foreign judgments and its attempts to secure the
recognition and enforcement of its judgments through international agreements
on the matter failed. The refusal to recognize American judgments and the
failure to enter into an international agreement on the matter are basically
due to the lack of uniformity and complexity of the American system of
judgments recognition. Therefore, we will discuss in a section one the liberal
practice of the United States (Section I) before addressing
the question of the reasons of the non-recognition of American judgments abroad
(Section II).
Section I: The liberal US practice
in the Recognition and Enforcement of Foreign Judgments
The liberal judgments recognition and enforcement practice of
American courts can be drawn from the rejection of the concept of reciprocity
in both common law and states law. Therefore we will start with discussing the
reciprocity in common law in a first paragraph (Paragraph I)
before discussing the rejection of the reciprocity in state law
(Paragraph II).
Paragraph A - Rejection of
Reciprocity in Common Law
Since there are no federal standards for recognition and
enforcement of foreign judgments in the United States, it was the duty of the
courts to fill this gap in the field of judgments recognition. Relying on the
English practice on subject, the US courts did not require reciprocity as a
condition to give effect to foreign judgments236(*). However, despite the introduction of reciprocity in
the landscape of recognition and enforcement of foreign judgments by the U.S
Supreme Court, the doctrine of reciprocity was criticized by the Supreme Court
itself (I) later it will be neglected by state courts
(II) and the federal courts (III).
I) The Watershed Case: Hilton v.
Guyot:
All scholars in the United States agree that the 1895 Hilton
case decision was the landmark in the area of recognition and enforcement of
foreign judgments237(*).
It was so considered because of many reasons: Firstly, it provided a kind of
uniformity in the landscape of the recognition and enforcement of foreign
judgments as it was an attempt to give some structure to the system238(*). Secondly, it defined the
notion of comity and laid down the criteria for its applicability in the field
of recognition and enforcement. Finally, it constructed comity as to require
reciprocity and thus, it introduced the reciprocity requirement for the first
time in the foreign judgments recognition and enforcement practice in the
United States.
The facts of the case were a suit brought by a French
plaintiff who presented a French judgment for enforcement in the United States
against American defendants after a full litigation of the dispute in France by
both sides. But during the trial and appeal in France, the defendant liquidated
his assets in France leaving no property outside the United States that could
satisfy the plaintiff's judgment. The lower court (Court of Southern District
of New York) held in favour of the French plaintiff. The defendant then brought
the case before the Supreme Court.
The issue that the Supreme Court had to answer was whether a
judgment for a sum of money, rendered by a competent foreign court in the
absence of a treaty or an act of Congress239(*), was re-examinable on the merits? The Supreme Court
confirmed its duty to recognize and enforce foreign judgments on the basis of
comity and set forth requirements for its establishment. In fact, the Supreme
Court found that U.S courts had no duty to exercise comity in a foreign
country's favour when it appears that the foreign country denies effect to
American judgments on the ground of reciprocity240(*). Consequently, giving the
fact that French courts reviewed the merits of any foreign judgment according
to the doctrine «revision au fond», the Supreme Court found that
reciprocity was lacking and thus, the French judgment should not be granted a
conclusive effect.241(*)
However, the Supreme Court asserted a limited scope for the
reciprocity requirement since it only applied to executory money judgment
against nationals of countries that fail to honour American judgments242(*). Moreover, only in personam
judgments imposing personal liability on a defendant were subject to
reciprocity as contrasted to in rem judgments or judgments affecting the status
of property of those affecting status of persons. Finally, reciprocity did not
apply in judgments between two foreigners or against an American
citizen243(*). The
purpose of the Hilton's reciprocity appears, accordingly, to be limited to the
protection of Americans sued abroad244(*).
Nevertheless, in spite of its limited scope, rejecting the
recognition of the French judgment on the basis of reciprocity solely did not
enjoy unanimity and did not convince four Justices of the Supreme Court. The
outraged dissent, led by Chief Justice Fuller, stated that the principle of
reciprocity should not be applied. He presented several arguments for that:
firstly he stated that «the notion of res judicata applied to domestic
judgments should apply to foreign judgments as well and rests on the same
general ground of public policy that there should be and end of
litigation»245(*).
He expressed «I am unable to perceive why a judgment in personam which is
not open to question on the ground of want of jurisdiction... or fraud or any
other recognized ground for impeachment should not be held inter partes, though
recovered abroad, conclusive on the merits»246(*). He argued that the notion
of comity, as altered by the Supreme Court, would vest the federal courts an
un-reviewable discretion to accept or reject foreign judgments. Consequently,
it is preferable to apply a res judicata principle which provides transparent
and clearly defined policies.
He asserted secondly that the holding of the majority of the
court was affected by a fundamental lack of fairness. He stressed on the fact
that the defendants «took the chances of a decision in their
favour»247(*) and
consequently, «the last persons who should be heard to complain are those
who identified themselves with the business of that country, knowing that all
their transactions there would be subject to the local laws and modes of doing
business»248(*).
Chief Justice Fuller continued his disagreement with the
majority by stating that while several nations require reciprocity to enforce
foreign judgments, countries governed by common law, such as England simply
require the court of the judgment to have a proper jurisdiction over the
matter249(*). Finally,
Chief Justice Fuller concluded that the doctrine of res judicata does not rest
on discretion and described reciprocity asserted by the majority as a principle
of retortion that hurts the separation of power in the United States250(*).
Apparently the arguments of Chief Justice Fuller's dissent
were well founded, so that reciprocity was rejected by the New York Court of
Appeal and then by majority of state courts in the United States.
II) Rejecting the Reciprocity
Requirement by State Courts: Johnston v. Compagnie Générale
Transatlantique
After the divided ruling of the Hilton case, it was
time to test the reciprocity requirement in state courts. Until 1926, the
recognition and enforcement of foreign judgments was a federal issue. This
means that federal and state courts applied intentional law under the guidance
from the Supreme Court251(*) and applied the standards ruled in Hilton case
including reciprocity requirement252(*). However, the New York Court of Appeal, thirty-one
years after the Hilton's decision, directly rejected the Hilton's ruling on
reciprocity in Johnston v. Compagnie Générale Transatlantique
decided in 1926253(*).
The case arose from an alleged wrongful delivery of goods in
which the American plaintiff first sought relief in the French courts but he
failed to win the cause of action. He decided, then, to bring a separate action
before the Americans courts in the State of New York. Lower courts refused to
give effect to the French judgment on the ground of the reciprocity requirement
following by decision of the Supreme Court in the Hilton
case254(*). The case
then went to the New York Court of Appeal.
The question that the New York Court of Appeal had to answer
was whether or not state courts in New York were bound by Hilton v.
Guyot? The court answer was no, as it was mentioned above. In
justification of its answer, Justice Pound, writing for the court, asserted
that even though questions of international relations and comity are to be
determined by the Supreme Court of the United State - and therefore the
Hilton's decision is controlling such questions as a statement of law255(*) - the courts in New York
were not bound to follow the Hilton's ruling because «the question is one
of private rather than public international law, of private right rather than
public relations and [American] courts will recognize private rights acquired
under foreign laws»256(*). Consequently, «a right acquired under foreign
judgment may be established in this state [New York] without reference to the
rules of evidence laid down by the courts of the United States»257(*). Therefore, the New York
Court of Appeal reached the conclusion that the Hilton ruling was not
binding outside federal courts.
It was clear that the New York Court of Appeal could have
distinguished the facts of the case from the facts in Hilton. It was
clear that facts of the case in Johnston were excluded from the
reciprocity's scope of Hilton. In fact, the case was brought by an
American before a foreign court and the French judgment was sought to be used
defensively258(*).
Nevertheless, the court preferred to speak generally, and established a general
principle by which reciprocity is not a condition for the recognition and
enforcement of foreign judgments in the state of New York. The court went even
further in disregarding the Hilton's ruling. It declared that since impeachment
of foreign judgments is always possible for fraud in the State of New York,
«the precedent fifty-four pages of the [Hilton's] opinion may be
regarded as magnificent dictum»259(*). Therefore, given the fact that the French court
heard and decided the case «judicially, honestly, and with full
jurisdiction and with intension to arrive at the right conclusion...the French
judgment should be given full faith and credit.»260(*)
Thus, the New York Court of Appeal effectively eliminated the
requirement of reciprocity from consideration in New York's courts. Ultimately,
this position was adopted by the majority of the States throughout the United
States261(*). However,
Federal Courts continued to apply the teaching of the Supreme Court and to be
bound by the Hilton reciprocity rule until the Erie case.
III) Rejecting the Reciprocity
Requirement by Federal Courts
Giving the fact that there are two independent judicial
systems in the United States represented by both state and federal courts, each
judicial body is bound by the decisions of its highest courts and its laws.
This means that state courts have to follow rules of laws of the state in which
it is located to adjudicate cases that are represented before it262(*), and federal courts are
bound by the decisions of the Supreme Court.
Yet, federal courts have jurisdiction not only in cases that
arises either under the Constitution or federal statutes and international
treaties263(*), but also
over state claims in which there is presence of federal claim in the
action264(*). As a
result, it is sometimes difficult for federal courts to determine which law
must apply in cases which are not governed by only the federal law.
The rule that was applied by federal courts for decades
consisted in the fact that federal courts are not bound to follow state-court
decisions. Those decisions were not considered as the «law» but only
as a mere «evidence of what the laws are»265(*). This rule, named the
«Swift doctrine», had given the federal courts a great
independence in determining the applicable law in cases involving state
laws266(*) and
established what was called «federal common law». Hence, even after
the decision of the New York Court of Appeal and even though most American
state courts generally abandoned the reciprocity requirement as a ground to
give effect to foreign judgments267(*), federal courts continued to be bound by stare
decisis of the Hilton reciprocity requirement for many years268(*). The rule of reciprocity was
considered as a part of the federal common law, and consequently, federal
courts were required to apply it when they sit in diversity cases269(*).
However, the Supreme Court itself confirmed, twelve years
after Johnston case, the decision of the New York Court of Appeal in
its landmark case Erie Railroad Co. v. Tompkins decided in 1938, and
thus, radically changed the relationship between state and federal
courts270(*). The
Supreme Court held that there is no general federal common law, and that
federal courts sitting in diversity are constitutionally bound to follow
substantive law of the state in which they are sitting outside of the narrow
sphere of legitimate federal interests271(*).
The decision had a great impact on the recognition practice in
the United States. In fact, even though the Erie case involved only an issue
concerning tort liability for interstate railroad272(*), the Supreme Court's
decision indirectly decreased further the applicability of Hilton
reciprocity. The Supreme Court stated that since there is no constitutional
provision for the applicability of "federal common law" and in the absence of
congressionally enacted statutes or treaty provisions, state law - reflected
either by the decisions of the highest courts of each state or by states
enacted statutes - shall govern the state dispute rather than federal law.
Consequently, a federal court sitting in diversity actions must follow this
direction and refrain from applying the Hilton's reciprocity rule as a
condition in giving effect to foreign judgments given the fact that most states
in the U.S have rejected the reciprocity rule. As a result, federal courts
exercising diversity-of-citizenship actions were bound to state law on the
issue of reciprocity273(*). Three years later the Supreme Court went further by
extending the Erie doctrine to the area of conflict of laws in its case
Klaxon Co. v. Stentor Elec. Mfg. Co. decided in 1941.
The Erie's case gave the opportunity to
federal courts to ignore the rule of the Hilton opinion on reciprocity
on the ground that the decision lays beyond the scope of legitimate federal
concern274(*). The
Federal courts then were not only freed from the Hilton reciprocity,
but also they chose not to consider the reciprocity rule in evaluating the
status of the foreign judgment in the absence of guidance policy from the state
law.275(*)
That was the case of the United States Federal District Court
for the Eastern District of Pennsylvania (the Third Circuit Court of Appeal) in
Somportex Ltd v. Philadelphia Chewing Gum Company where the court,
after confirming the applicability of state law by federal courts sitting in
diversity cases,276(*)
had to determine «whether the courts in Pennsylvania would hold that
reciprocity is a necessary precondition to the enforcement of foreign
judgments». But the issue of enforceability of foreign judgments had not
been litigated in Pennsylvania since the court did not find any case law which
requires reciprocity as an essential precondition to the enforcement of foreign
judgments. The court went on to hold that «in absent of a positive showing
that Pennsylvania would follow the Hilton decision with respect to reciprocity,
this court will not presume that it would adhere to such undermined concept.
This court finds that if presented with this issue, Pennsylvania courts would
follow its neighbouring states of New York and expressly reject this
concept.277(*)»
Therefore, even though the Hilton reciprocity was not
overruled, it was at least invalidated by Erie. Federal courts are
required to apply state law when the case comes to an issue of reciprocity and
they are no longer bound by the Hilton's ruling when they sit in diversity
cases278(*). This led to
a dispatch of state law in the subject since each state adopted its own
standard for the recognition of foreign judgments with the majority without the
reciprocity requirement which will be reflected on the state laws.
Paragraph B - Rejection of
Reciprocity in State Law
The common law is not the only authority on recognition and
enforcement of foreign judgments in the United States. The subject can also be
governed by rules that are found in the state statute. Those statutes generally
reflect liberal practice of recognition and enforcement of foreign judgments in
the United States. In fact, the enacted statutes will further diminish the role
of reciprocity as a condition to give effect to foreign judgments.
The process of codification started with the feeling of need
of the American states to have a unique and uniform legislation regarding the
recognition and enforcement of foreign judgments. This process started with the
Uniform Foreign-Money Judgments Recognition Act (I), later it
was continued by the Restatements (II).
I) The Uniform Foreign-Money
Judgments Recognition Act (UFMJRA)
In 1962, the NCCUSL approved and recommended the Uniform
Foreign Money Judgments Recognition Act (UFMJRA or UNIFORM ACT). The Uniform
Act codified the common law applied in the majority of states with a goal of
making a uniform guidance for the states which wanted to adopted it and
integrate it into their legislation. The purpose of the promulgation of the
Uniform Act was to resolve the problem of disparate state practice and to send
a message to the world by demonstrating the United States' receptivity to
foreign judgments with hope that American judgments would be given same
effect279(*). It is
important to note that for its most part, the Uniform Act is based on the
Hilton case especially with respect to the ground of non-recognition,
but, with a significant difference: The Uniform Act did not include any
condition of reciprocity.
In effect, the Uniform Act - which «applies to any
foreign judgment that is final and conclusive...»280(*) - provides in its section 3
that «foreign judgment meeting the requirement of the section 2 is
conclusive between the parties...» and it «is enforceable in the same
manner as the judgment of a sister state which is entitled to full faith and
credit»281(*)
provided that the mandatory and discretionary defences are not
applicable282(*).
Despite its limited scope283(*), Uniform Act treats foreign judgment as res
judicata284(*). Thus,
every idea of reciprocity excluded and abandoned to allow any foreign judgment,
which meets the requirements laid down by the Act, to be recognized and
enforced as sister state judgments based on the principle of full faith and
credit285(*).
Such abandonment of reciprocity within the act was founded on
the fact that «in a large number of civil law countries, a grant of
conclusive effect to money-judgments from foreign courts is made dependent upon
reciprocity. Judgments rendered in the United States have in many instances
been refused recognition abroad either because the foreign court was not
satisfied that local judgments would be recognized in the American jurisdiction
involved or because no certification of the existence of reciprocity could be
obtained from the foreign government in countries where the existence of
reciprocity must be certified to the courts by the government. Codification by
a state of its rules on the recognition of money-judgments rendered in a
foreign court will make it more likely that judgments rendered in the state
will be recognized abroad»286(*).
The issue of whether to require reciprocity or not was
reconsidered by the The National Conference of Commissioners on Uniform State
Laws at the occasion of the work undertaken to amend the 1962 Uniform Act
«in order to correct problems created by the [1962 Uniform Act] and its
interpretation by the courts»287(*). The Committee finished by agreeing that reciprocity
requirement should not be included in the new Uniform Act.
The enactment of the Uniform Act created a certain degree of
uniformity since thirty one states and territories adopted it and included it
in their respective legislation288(*). This adoption could show a certain degree of
agreement among the states as to the appropriate way to recognize and enforce
foreign judgments which should be without reciprocity requirement. However,
this uniformity was not achieved since eight state legislatures have
reintroduced the reciprocity requirement within their adopted version of the
Uniform Act or adopted a separate provision on reciprocity289(*). Among those states, six
authorize but do not require the court to deny recognition on the ground of
lack of reciprocity290(*). Two other states have adopted the Uniform Act with
a mandatory provision that reciprocity be established as a condition for
recognition and enforcement of foreign judgments.291(*)
II) The Restatements
As a part of its mission to promote uniformity within the
United States in legal solution292(*) and «clarification and simplification of the
law...to secure the better administration of justice»293(*), The ALI has drafted a
number of Restatements. These restatements are usually used by judges and
lawyers as authoritative guides for both legal briefs and judicial
opinions294(*).
The Restatements (Second) of Conflict of Laws and the
Restatement (Third) on Foreign Relations Law summarize the majority position
taken in the other states that have not adopted the Uniform Act. These
restatements followed the approach taken by the Uniform Act and did not include
any condition of reciprocity.
The Section 98 of Restatements (Second) of Conflict of Laws
states that «a valid judgment rendered in a foreign nation after a fair
trial in a contested proceeding will be recognized in the United States so far
as the immediate parties and the underlying cause of action are
concerned»295(*).
Comments of the section 98 of the restatement recognizes the current consensus
that «the recognition of a foreign nation judgment is governed by state
law under the rule of Erie Railroad Co. and that the great majority of
state and federal courts treat foreign judgment without regard to any question
of reciprocity296(*).
Therefore «the Second Restatement also reflects the trend
toward liberal recognition»297(*). This means that if the foreign judgment meets the
conditions laid down by the Supreme Court in Hilton298(*) the foreign judgment will be
given the same degree of recognition as a sister state judgment without any
other condition of reciprocity299(*) «as far as the immediate parties and the
underlying claim are concerned300(*). Nevertheless, the general trend supports the view
that there is a little reason why the concept of conclusive effect should not
be granted to foreign judgments outside the scope of the required conditions
without any condition of reciprocity301(*).
The Restatement (Third) of Foreign Relations Law confirms also
the aversion to the reciprocity requirement as a ground for non recognition.
According to the section 481 «a final judgment of a court of a foreign
state...is conclusive between the parties and is entitled recognition in the
United States»302(*) if that judgment meets the conditions laid down in
the section 482. Those conditions do not include the reciprocity requirement as
a ground for non recognition303(*). Comments of the Restatement Third note also the non
applicability of the reciprocity rule in the most of the states in the United
States. The reporters' notes confirm that «the great majority of courts in
the Unites States have rejected the doctrine of reciprocity...»304(*)
Even though the Restatement Third parallels in most respect
the Uniform Act, some differences exist between the two acts. The most
significant concerns the scope of applicability: Unlike the Uniform Act which
scope is limited only to judgments granting or denying recovery of a sum of
money, the Restatement Third includes in its scope family law305(*).
To summarize, the tendency of the American system, despite the
existence of some exceptions, is likely to be toward liberal recognition and
enforcement practice of foreign judgments.
Section II - The Non-Recognition
of American Judgments Abroad
Despite the liberal practice of foreign judgments recognition
in the United States, American judgments are unlikely given effect when taken
abroad. Some scholars affirm that uniformity and complexity of the American
system is «the most significant problem which bars the enforcement of
American judgments overseas306(*). The lack of uniformity is due to the lack of a
nation wide position on recognition and enforcement of foreign judgments
especially with regards to reciprocity requirement as a ground for non
recognition and enforcement of foreign judgments (Paragraph A)
The complexity of the American system of recognition and enforcement
of foreign judgments stems from the difficulty to prove that foreign country
judgment can be enforced in the United States (Paragraph
B).
Paragraph A - Refusal Due to the
Lack of Uniformity with Regards to Reciprocity
It is easy for any reader who skims the American literature
concerning the recognition and enforcement of foreign judgments to conclude
that the system is uniform and provides a clear and comprehensive set of rules.
However a thorough study of the American system, especially from a foreign
point of view, reveals the disharmonies and idiosyncrasies in U.S international
recognition and enforcement practice307(*).
The lack of uniformity is due to the disparity between state
courts and legislatures on whether to require reciprocity or not. This is
actually the result of «the current system of handling cases on the basis
of a state-by-state recognition and enforcement of foreign judgments system
governed by state statute or common law»308(*). The immediate result of such a system is the
impossibility to discuss the current of recognition and enforcement system of
the United States without constant reference to several exceptions309(*).
With this concern, giving the fact that the United States is
divided into fifty one states which have their own legal system, and in the
absence of federal guidance on the matter, the American system is handled by
fifty one different approaches to judgment recognition and enforcement. As a
result, it is difficult to define a homogeneous American policy on recognition
and enforcement of foreign judgments310(*). For this reason, some American scholars confessed
that «the lack of uniformity among the states is the most significant
problem facing a litigant trying to enforce a U.S. judgment overseas.311(*)»
In effect, despite an apparently uniform rule in the
Restatements, and the Uniform Act - which reflect the rejection by a great
majority of state and federal courts of reciprocity as a ground for non
recognition - other common law decisions have refused to abandon reciprocity
requirement and continue to require reciprocity as a precondition to give
effect to judgments of other countries312(*). Moreover, where certain states decided not to enact
any version of the Uniform Act, other several states decided to reintroduce the
reciprocity requirement within their version of the Uniform Act. In addition,
even among states that decided to reintroduce the reciprocity requirement in
their version of the Uniform Act, the form of reciprocity differs from one
version to another. Where some states decided to reintroduce reciprocity as a
discretionary ground for non recognition, some other states decided that the
lack of reciprocity is enough to refuse the recognition and the enforcement of
foreign judgments as a mandatory ground for non recognition313(*).
In addition, another problem may appear which concerns states
which did not enact any version of the Uniform Act314(*), and which have not any case
related to the recognition and enforcement of foreign judgments. For these
states, it is difficult to predict what will be the response as regard to
reciprocity. The question becomes more difficult if the case is brought before
a federal court. The lack of uniformity and disparity between states' practices
make it difficult to say what is the state applicable law since the law does
not exist or unclear. Consequently, federal judge has to consider the
reciprocity rule on its own merits315(*). And whether the federal court will apply or not the
reciprocity requirement as a precondition for recognition and enforcement of
foreign judgments would depends on federal court circuits.
The drafters of the proposed federal law themselves confessed
that «it would strike anyone strange to learn that a judgment of an
English or German or Japanese court might be recognized and enforced in
Arkansas, in Pennsylvania but not New Jersey».316(*) This system of recognition
and enforcement in the United States gives the international community a sense
that its judgments will not be uniformly enforced across the United States and
that the recognition and enforcement of their judgments can be accepted in one
state but not in another. This fact of course gives less incentive to foreign
countries to enforce American judgments.
With this respect, one scholar wrote that «from a foreign
country perspective, the state-by-state system is not a system at all because
it provides no unified procedure indicating under what conditions foreign
country judgments will be recognized and enforced»317(*). When the question comes to
the issue of reciprocity, courts usually look at the position of the foreign
country as a whole rather than its various parts318(*). This lack of uniformity in
the statutory and case law of the United States creates uncertainty and
confusion in the eyes of foreign judges, scholars and practitioners319(*). According to the same
scholar, «foreign countries, often with more unified and transparent
foreign judgment recognition and enforcement procedures therefore have little
or no incentive to grant U.S judgments reciprocal enforcement320(*)», and thus, foreign
courts simply deny recognition to the American judgments construing from the
lack of uniformity that American courts will not reciprocally recognize and
enforce foreign judgments321(*).
Paragraph B - Refusal Due to the Complexity of the American
System of Recognition and Enforcement of Foreign Judgments
In addition to the lack of uniformity of the recognition and
enforcement system in the United States, another reason of complexity comes to
make the recognition and enforcement landscape in the United States more
difficult to understand. In fact, same as the lack of uniformity, the question
complexity provides a lot of difficulties not only for foreign scholars and
lawyers who want to understand the American system of recognition, but it is
also difficult for the Americans lawyers and scholars themselves when they are
called to explain their own system of recognition and enforcement of foreign
judgments322(*). The
situation becomes more complicated when it comes to the question of reciprocity
giving the fact that the modern position of the reciprocity rule is far from
certain323(*). According
to one scholar «any attempt to approach the history of the [reciprocity]
rule results in multiplication of caveats and asides pertaining to numerous
important but somewhat dissimilar reactions to the rule»324(*).
The complexity stems from the holding in Erie which
requires federal courts to apply state law when they sit on diversity actions.
It is also a direct consequence to the lack of uniformity in the United
States325(*). This
situation makes things more difficult for both American judgments holders and
foreign enforcing courts especially those required to prove reciprocity as a
ground for recognition.
In this case, the American judgment holder who wants to
enforce his judgment in a foreign court will be required to prove that a
similar judgment from the American court would be enforced in the United
States326(*). This is
not an easy matter especially in the states where the Uniform Act was not
enacted327(*). With this
respect, two possible problems may face the foreign enforcing court, especially
when the foreign court has a reciprocity requirement and when the foreign court
will check whether or not the law of the enforcing foreign court requires the
proof of reciprocity as a precondition for recognition.
The first source of complication comes from the sources of
judgments recognition law of the state where the judgment was rendered. In this
case, several questions need to be solved by the enforcing foreign court. In
fact, the enforcing court will have to determine whether federal or state law
is applicable to the case. Once this question is answered, the foreign court
will have to see whether the Uniform Act was enacted or whether there is a
similar statute regulating the recognition and enforcement of foreign
judgments. If the judgment is rendered in state where the judgment recognition
is governed only by common law, the foreign court will have to check prior
state court decisions. Where such decisions do not exist, the foreign enforcing
court will have to see whether or not there is prior federal court decision
determining the law of the state law, and whether the state would apply it if
it is faced with the same issue. Where no state statute, state court decision,
or federal court decision on the point exist, the foreign court may look to the
sources outside that state from surrounding state and try to guess whether the
law of the rendering court will recognize foreign judgments.
The second source of complexity that a foreign court will face
is the American judicial system itself. The existence of fifty different
systems of enforcement in the United States, with states courts adhering to the
pre-Erie federal common law and other state courts granting foreign judgments
full faith and credit on the basis of comity, and the interaction between state
and federal courts make it difficult for a foreign court to understand the law
and the judgment recognition system in the United States. The issue becomes
more complicated when the law of the enforcing court requires the proof of
reciprocity as a precondition of enforcement of foreign judgments. The U.S
judgment holder who is seeking enforcement of his judgment in a country
requiring reciprocity will be required to prove that a similar judgment from
the enforcing court would be enforced in the American court from which his
judgment originated. This would not be easy especially when the judgment is
issued from a federal court328(*).
In this case the judgment creditor will be required to
demonstrate to the enforcing court at first that the federal courts are not
required to follow the Hilton ruling on reciprocity. He has to explain
the change in the judgments recognition system that happened after
Erie and that federal courts are required to follow states' law and
that the applicable rule is found in state, but not federal, law. He may be
asked to show that state law may be found in a state statute, a case decided by
a state court, or a case decided by a federal district court sitting in the
state and addressing an issue of first impression in the state329(*). In all cases, the
possibility of over fifty separate and different rules will continue to make
matters difficult in explaining the law to a foreign court.
Chapter II: Description of
the ALI's Project: Non-Reciprocity as a Defense
While negotiation were undergoing under the auspices of The
Hague Conference on Private International Law since 1996, The American Law
Institute (ALI) started in 1999 - with the encouragement of the State
Department of the United States - the preparation of a draft legislation on
judgments recognition to implement the Hague Convention if it is successfully
drafted and ratified330(*). This initially corresponded to the «Plan
A» suggested by the ALI's reporters331(*). However, since negotiations in the Hague Conference
were taking time more than expected and finally stalled, the ALI moved forward
to discussing the possibility of «Plan B» which is intended to draft
a federal statute on the recognition and enforcement of foreign judgments in
the United States332(*).
The essence of this project is basically to provide solution
to the problem of the non-acceptance of American judgments abroad. It addresses
«a national problem with a national solution333(*)» which consists
basically in making the foreign-country judgments recognition uniform
throughout the United States334(*). «The most controversial issue in this effort
has been whether to require reciprocity from countries whose judgments come
before American courts for enforcement»335(*).
Despite the fact that reciprocity has almost disappeared from
the landscape of the recognition and enforcement of foreign judgments in the
United States, the vote among the membership of the ALI favoured the inclusion
of the reciprocity requirement in the proposed federal legislation336(*).
The reciprocity in the ALI's proposed federal statute presents
a new breadth of the reciprocity. It has different goals and rationale i.e.
reciprocity is no longer a device to protect sovereignty, but it has a more
pragmatic objective: to secure the recognition and enforcement of American
judgments abroad. From this point, it is worth analysing reciprocity as
included in the ALI's proposed federal statute (Section I)
before addressing the question of its potential impact on the judgments
recognition practice in and outside the United States (Section
II).
Section I: The Reciprocity
Requirement in the ALI Project
It is widely agreed that the United States has a unique
situation with regard to the recognition and enforcement of foreign judgments.
It is also agreed that while the United States is committed to a liberal
judgments recognition practice and give effect to foreign judgments on the
basis of comity, American judgments continue to face non-recognition outside.
As it was mentioned in the Reporters' Notes provided with the proposed final
draft, «the rationale behind this section is that the interest of the
United States to having its judgments recognized in foreign countries, as well
as to recognizing and enforcing judgments of foreign courts»337(*).
Therefore, it is worth the trouble showing the manifestation
of reciprocity within the ALI's proposed federal statute (Paragraph
A) before discussing its method of application (Paragraph
II).
Paragraph A - the Manifestation of
Reciprocity in the Proposal Federal Statute
The ALI voted for the reintroduction of the reciprocity
requirement in the landscape of the recognition and enforcement of foreign
judgments in the United States. Addressing the problem of ensuring the
recognition and enforcement of American judgments abroad, the ALI made from
reciprocity requirement a fundamental condition through which foreign judgments
would have effect in the United States. As such, reciprocity appears in four
provisions of the proposed federal statute338(*), but it is in its section 7 where the ALI
established the principle of reciprocity as a ground for non recognition in the
proposed federal statute. Therefore, it is paramount to address the question of
the operation of the reciprocity requirement in the proposed federal statute as
to improve the recognition and enforcement of American judgments abroad
(I) prior to addressing its operation as incentive to enter
into bilateral agreement (II).
I - The Operation of Reciprocity
as to Improve the Recognition of American Judgments Abroad
Section 7 of the proposed federal statute have not only
introduces reciprocity as a mandatory requirement for the recognition and
enforcement of foreign judgments (A), it has also the merit of
clarifying its application (B)
A - Reciprocity as a Mandatory
Requirement for the Recognition and Enforcement of Foreign Judgments
As it was already mentioned, there is no general consensus
about whether to need a reciprocity requirement in the law of the recognition
and enforcement of foreign judgments in the United States. In effect, among the
thirty one states which have adopted the UFMJRA; only eight states have
included a reciprocity requirement in their version. The disagreement is not
only limited to the necessity of the reciprocity requirement, but also to its
nature. Among the eight states which have included the reciprocity requirement
in their version of the Uniform Act, six states give a discretionary effect to
the reciprocity requirement in their act and allow the dismissal of the foreign
judgment on the basis of the reciprocity requirement; whereas the two other
states have made from the lack of reciprocity a mandatory basis for denying
recognition and enforcement of foreign judgments in the United States.
The new approach of the ALI in their proposed federal statute
is not only to include reciprocity as a ground for non-recognition, but also to
require it as a mandatory requirement for foreign judgments recognition. The
section 7 provides «A foreign judgment shall not be recognized
and enforced in the United States if the court finds that comparable judgments
of courts in the United States would not be recognized or enforced in the
courts of the state of origin»339(*). As a result, courts in the United States will, if
the proposed federal statute is enacted by Congress, deny effect of foreign
judgments on the sole reason that foreign judgments lack reciprocity whenever
the requirement fails to be shown.
It is important to point out thus far to the few differences
between the reciprocity requirement in the proposed federal statute and the
Hilton's reciprocity. On the one hand, the Supreme Court in
Hilton and the ALI ask courts (federal and state courts) in the United
States to refuse recognition and enforcement of foreign judgments on the unique
ground of reciprocity. This means that the lack reciprocal recognition and
enforcement from foreign states alone is sufficient to strike down the foreign
judgment and deny its effect in the United States340(*).
On the other hand, where the Supreme Court established a
limited scope for the application of the reciprocity requirement, since it
applies only in certain matters where an American is a defendant, the ALI made
from reciprocity a general requirement applicable to a wide range of judgments
against any foreign judgment holder despite the criteria of nationality. In
other words, where the Hilton's reciprocity seems to protect American nationals
from un-reciprocal treatment abroad, the ALI's reciprocity focus is only on
enforceability of American judgments abroad regardless the criteria of the
nationality341(*). This
means that reciprocity would be applied even against American nationals who
succeeded to gain cause of action in foreign countries which do not grant
effect to American judgments.
Finally, where the Supreme Court allowed the rejection of
foreign judgments on the ground lack of reciprocity, the ALI made from the lack
of reciprocity a mandatory ground for non recognition. In fact, although the
Supreme Court in Hilton asked American courts to reject the foreign
judgment where reciprocity is not proved, the failure to satisfy the
requirement of reciprocity would result in an outright rejection of the foreign
judgment. The judgment would be qualified as «Prima facie» evidence
in American trial courts342(*). Unlike the Hilton's reciprocity, the ALI proposed
federal statute requires from federal and state courts to be bound by the
reciprocity requirement and reject effect of foreign judgments whenever the
lack of reciprocity is proved. However, it does not give any answer concerning
the use of the foreign judgment that was rejected conclusive effect343(*).
Including the reciprocity requirement as a mandatory ground
for non recognition aims to send a message to the world that the United States
is going to break its long history of liberal recognition practice the
judgments recognition practice. The ALI justifies mandatory aspect of
reciprocity as a tool providing unification of the recognition system in the
United States. They argue that leaving the question of whether to require
reciprocity or not and its effect as discretionary or mandatory as a matter of
discretion has led disparate judgments recognition practices in the United
States and has led to a forum shopping. Therefore, «the act, designated to
achieve uniformity in the United States, rejects discretion in this
context»344(*). It
is a clear message addressed to those countries which refuse to give effect to
American judgments that their judgments will be unwelcome if the American
judgments are not recognized abroad.
B - Application of the Reciprocity
Requirement
By requiring a mandatory aspect to the reciprocity
requirement, the ALI established a set of rules in order to clarify its
application especially the issues of burden of proof. It seems to be logical to
use principles that go along with the mandatory aspect of reciprocity
requirement.
Provision 7 (b) provides that the defence of the lack of
reciprocity shall be raised whenever a foreign judgment is asked to be given
effect in the United States. In addition, unlike most of the states which
require a reciprocity requirement, the proposed federal statute shows the way
that should be followed to demonstrate the existence or the absence of
reciprocity and that by determining the role of the parties and the role of the
American enforcing court when dealing with the defence of reciprocity.
Therefore, it is compulsory to determine to role of the
parties (a) before dealing with the role of the American
enforcing court (b) whenever the defence of reciprocity is
raised.
a) The Role of the Parties and the
Burden of Proof:
Section 7 (b) of the ALI proposed statute determines the role
of the parties in proving whether or not American judgments are recognized and
enforced by foreign countries' courts. At first, the section7 (b) makes it
compulsory to raise the defence of lack of reciprocity and it is incumbent on
the defendant. The section7 (b) reads «A judgment debtor or other person
resisting recognition or enforcement of a foreign judgment in accordance with
this section shall raise the defence of lack of reciprocity with
specificity as an affirmative defence»345(*). In other words, the defence of the lack of
reciprocity by foreign states shall be raised in any circumstance with respect
to the recognition and enforcement of foreign judgment. It is not a choice that
the party resisting the recognition can make but it is an obligation that
should be fulfilled. In this context, what would happen in case the defendant
does not raise the defence of lack of reciprocity?
The provision does not provide any answer. However, in the
common law tradition, the role of judges is described as passive346(*). One scholar wrote «The
common law follows the principle that the parties to the litigation know best;
it is for them to raise the issue that affect their interest. This can also be
seen in the enforcement of judgments...Unless the judgment debtor appears and
raises possible defects in the judgment or other objections to enforcement, the
court will enforce the judgment. It has no independent function to check the
jurisdiction of the foreign court. Nor is it concerned to find out whether the
judgment debtor still has rights of review or appeal under the law of the court
of origin. It is up to the judgment debtor to take steps to stay the
enforcement of the judgment...347(*)». Thus, where the party resisting the
recognition and enforcement of the foreign judgment fails to raise the issue of
lack of reciprocity for his or her defence in its responsive pleading, this
means that that person waived the right to raise the issue at later stages of
the proceeding348(*).
Courts are not required to make any findings on the issue of reciprocity if the
defence is not raised.
The proposed federal statute addresses also the burden of
proof of the reciprocity requirement when the issue of reciprocity is raised.
The final proposed federal statute - Section 7 (b) - places such burden on the
party resisting the recognition and enforcement of foreign judgment. This
section, however, deserves some comment. In fact, previous suggestions proposed
that the burden of proof should be incumbent of the judgment creditor. In the
previous Drafts the section7 (b) provided that «Once the defence of lack
of reciprocity is raised, the judgment creditor or other persons seeking to
rely on the foreign judgment shall have the burden to show that the courts of
the state of origin do grant recognition and enforcement of courts in the
United States in comparable circumstances»349(*). This means that once
the lack of reciprocity is raised, it is for the party seeking recognition and
enforcement of his or her judgment to prove that courts of the state of origin
do give effect to judgments similar judgments in similar
circumstances350(*).
This sentence was written together with the present section7 (b) (ii) but
it was deleted after considerable discussion351(*).
In its present form and unlike previous drafts, the drafters
of the proposed federal statute created a presumption of reciprocity. American
judgments are presumed to be recognized and enforced abroad unless the person
resisting the recognition and enforcement of the foreign judgment proves the
contrary. In the previous drafts, this presumption was lacking. They required a
positive proof of reciprocity by placing the burden on the party seeking
recognition and enforcement in the United States.
Moreover, the party resisting recognition or enforcement of
the foreign judgment is not required to show that similar judgment rendered by
a court in the United States does not have effect abroad, but rather to show
that there is a substantial doubt that the court of the state of origin would
give effect to an American judgment. For that purpose, the proposed federal
statute provides a broad range of evidence. «Such showing may be made
through expert testimony, or by judicial notice if the law of the state of
origin or decisions of its courts are clear»352(*). However, party resisting
recognition or enforcement of foreign judgments cannot rely on the absence of
an international treaty to prove the lack of reciprocity. Section 7 (e)
provides that «the fact that no such agreement between the state of origin
and the United States is in effect or that agreement is not applicable with
respect to the judgment for which recognition and enforcement is sought, does
not itself establish that the state fails to meet the reciprocity requirement
of this section».
b) Determination of the
Reciprocity Requirement by the American Enforcing Court
The drafters of the proposed federal statutes did not only
determine the role of the parties in proving the existing of the reciprocity
requirement, but also addressed the role of the American courts in assessing
whether the requirement of reciprocity is satisfied. In this context two
comments deserve to be made. As the reporters stated in their comments, the
role of the judge is important in making the required determinations set forth
in the proposed federal statute.
At first, despite the fact that the proposed federal statue
made it mandatory to raise the defence of lack of reciprocity by the party
seeking the recognition and enforcement of foreign judgment, it did not provide
anything concerning the role of the court in raising the defence of lack of
reciprocity. But as it was mentioned above, the court continued to have a
passive attitude and cannot raise the defence of lack of reciprocity by itself.
Once the defence of the lack of reciprocity is raised by the defendant, the
proposed federal statute places an important role on American courts and
provides them with the framework to determine whether the reciprocity
requirement is fulfilled or not353(*).
At first, in order to make the determination of whether courts
of the rendering state would recognize comparable American judgment, the
American courts should determine the meaning of comparable judgments. In this
context, the reporters state that in doing so, the proposed federal statute
does not require congruence between judgments rendered in the United States and
those rendered in the state of origin354(*). Moreover, the proposed federal statute provides a
list of questions that the American enforcing court must consider in
determining whether the originated courts accord reciprocity to comparable
American judgments355(*). With this regards, section7 (c) provides the
following factors: «In making the determination required under subsections
(a) and (b), the court shall, as appropriate, inquire whether the courts of the
state of origin deny enforcement to (i) judgments against nationals of that
state in favour of national of another state; (ii) judgments originating in the
courts of the United States or of a state of the United States; (iii) judgments
for compensatory damages rendered in actions for personal in jury or death;
(iv) judgments for statutory claims; (v) particular types of judgments rendered
by courts in the United States similar to the foreign judgment for which
recognition or enforcement is sought. The court may also take into account
other aspects of the recognition practice of courts of the state of origin,
including practice with regard to judgments of other states».
The proposed federal statute requires also that American
courts consider the recognition practice of the state of origin. Evidence is
provided by the parties pursuant to section7 (b). In this context, the
reporters mentioned in their comments of the section7 that the «the law or
practice of the court of origin may be demonstrated by statutes, decrees of
general applicability, or current decisions of court of last resort as well as
by authoritative commentaries or treatises or expert
testimony...»356(*). In addition, the reporters argue that the evidence
that courts of the originating state recognize and enforce foreign judgment
without the benefit of treaty may be indicative that reciprocal treatment of
judgments in the United States is to be expected357(*).
The recognition practice of the state of origin with judgments
rendered in other states can provide evidence for the American enforcing court
of the treatment expected for American judgments. If that court is liberal in
its recognition practice with foreign court, it is expected that American
judgments will be liberally given effect by the courts of state of origin,
however, if the recognition practice is considered as restrictive, American
courts may have evidence that the courts of the state of origin will not
recognize and enforce judgments rendered in the United States358(*).
However, the proposed federal statute excludes as evidence of
non reciprocal treatment from foreign courts the fact that the courts of the
state of origin do not recognize or enforce judgments for punitive, exemplary,
or multiple damages. section7 (d) provides «denial by courts of the state
of origin of enforcement of judgments for punitive, exemplary, or multiple
damages shall not be regarded as denial of reciprocal enforcement of judgments
for the purpose of this section if the state of origin would enforce
compensatory portion of such judgments». One commentator described this
paragraph as «very important because it addresses a long-standing barrier
to the recognition and enforcement of foreign judgments»359(*).
Paragraph
B - Reciprocity as a «Negotiating Tool»
As it was already mentioned in the Reporters' Notes in the
proposed final statute, the inclusion of reciprocity, as mandatory requirement
for judgments recognition, tends «on the one hand to permit defence of
lack of reciprocity to be raised in an enforcement proceeding, and on the other
hand, to provide opportunity for foreign states to avoid the issue of
reciprocity by entering into an agreement»360(*). The aim of the reciprocity
requirement, therefore, is not to make the recognition and enforcement in the
United States more difficult; but to create incentive to foreign
governments to commit to give effect to American judgments since the
proposed federal statute allows them to avoid the issue of reciprocity all
together by entering into an agreement with the United States. As such, some
commentators argued that reciprocity is used a negotiating tool. It allows the
United States to accede to a treaty on the recognition and enforcement of
foreign judgments. With this respect, section7 (e) provides the framework of
the application of reciprocity as a negotiating tool. At first, it gives an
important role of the Sate Department to conduct negotiations with foreign
countries to conclude formal agreements (I), but does not
require a specific form for the agreement (II).
I - The Role of State
Department
One of the major reasons for which the ALI undertook the
drafting of the proposed federal statute was to create incentives for foreign
countries to enter into international agreements with the United States; and
ensure their commitments to recognize and enforce judgments from the United
States.
The State Department was relegated to a lesser role than in
earlier drafts361(*). In
fact, its role was limited to the maintaining and the publishing of lists of
foreign countries which either accord or do not accord recognition and
enforcement to American judgments362(*). After some revisions of the draft, the Secretary of
State was allowed to negotiate reciprocity for particular agreements363(*).
With this respect the section7 (e) gives the Secretary of
State a very important role. This role consists, basically, in negotiating
agreements with foreign states setting forth reciprocal practices concerning
recognition and enforcement of foreign judgments. These agreements, when
concluded, will constitute conclusive evidence that the requirement of
reciprocity has been met.
The Drafters of the proposed federal statute recognize the
risk that the inclusion of the reciprocity requirement might entail. By
including a reciprocity requirement, foreign countries with reciprocity
requirement may conclude that this inclusion will bar the recognition of their
judgments and therefore refuse to recognize American judgments. However, by
allowing the Secretary of State to negotiate international agreements on
judgments recognition, the very purpose is to signal the willingness of the
United States to cooperate and enforce foreign countries' judgments. The
Secretary of State can also negotiate other incentives included in the proposed
federal statute such as the registration procedure included in the section
10364(*), or the
provisional measures in aid of foreign proceedings365(*).
II - Agreements with Foreign
States
One of the most important issues that were dealt with the ALI
is the kind of agreements that should be negotiated as well as their form. The
text of the provision itself does not give a precise answer. However, as it was
already mentioned, the section7 (e) merely authorizes the State Department to
negotiate agreements with foreign states setting forth reciprocal practices
concerning recognition and enforcement of foreign judgments. In the reporters'
comments, it was stated that «these agreements need not to be formal
treaties, but could be Memoranda of Understanding, exchanges of diplomatic
notes, or similar bilateral declaration...366(*)»
A second problem related to agreements with foreign states was
addressed by the drafters of the proposed federal statute. The problem concerns
the weight of such agreements in determining the existing or the absence of the
reciprocity requirement. With this respect, the section7 (e) states that
«the existing of such an agreement between a foreign state or a group of
states and the United States established that the requirement of reciprocity
has been met». However, such agreements are limited only to the judgments
governed by the agreements and are not extended to other types of judgments
which are not included its scope.
An agreement with foreign state constitutes a proof of
establishment of reciprocity requirement, but knowing that the United States
has not any international agreement in the field of the recognition and
enforcement of foreign judgments, what would be the effect of the absence of
such agreements or the failure of the United States to enter into international
agreements with other foreign countries?
The defendant cannot use the absence of international
agreements as a defence to establish the lack of reciprocity; and the courts,
in determining the existence of reciprocal treatment, cannot conclude that
reciprocity is lacking solely on the basis of the absence of agreements. In
this respect, the section 7 (e) provides that the fact that no such agreement
between the state of origin and the United States is in effect or that
agreement is not applicable with respect to the judgment for which recognition
and enforcement is sought, «does not itself establish that the state fails
to meet the reciprocity requirement of this section».
Section II: The Anticipated Impact
of Reciprocity as Described in the ALI's Project on the Harmonization of
Standards for Recognition and Enforcement of Foreign Judgments
The drafters of the proposed federal statute are expecting
that the inclusion of reciprocity as mandatory requirement along with the
efforts that would be undertaken by the Secretary of State and the other
advantages provided by the federal draft statute will create incentives for
foreign countries to conclude international agreements with the United States.
During the debates inside the ALI, this system was described as the carrot and
the stick in the meaning that «reciprocity...operates a bit as a stick to
encourage agreements under section 7 (e); for carrots [there are] section12,
section10 and to some extent section 11»367(*).
With this respect and in the light of the reciprocity
provision of the ALI's proposed federal statute, it is interesting to analyse
the effects propposed reciprocity requirement on the harmonization of standards
for the recognition and enforcement of foreign judgments and that through
analysing, at first, its impact on the recognition and enforcement of judgments
(Paragraph A), before addressing in a second paragraph its
limits (Paragraph B).
Paragraph A - Impact of the
Reciprocity Requirement on the Recognition and Enforcement of Foreign
Judgments.
The very obvious implication from introducing the reciprocity
requirement in the landscape of the recognition and enforcement of foreign
judgments in the United States is that whenever American judgments would not be
recognized or enforced abroad, foreign judgments would be refused recognition
and enforcement in the United States. With this regard, it is worth addressing
the question of the impact of reciprocity on the recognition and enforcement of
American judgments abroad (I) before addressing the question
of its impact on the recognition and enforcement of foreign judgments in the
United States (II).
I - Impact of the Reciprocity
Requirement on the Recognition and Enforcement of American Judgments Abroad
What would be the impact from introducing the reciprocity
requirement on the recognition and enforcement of American Judgments abroad?
As it was already advanced, American courts have always been
liberal in their judgments recognition practice. Such practice, however, has
always been unilateral. Thus, the main target from the proposed federal statute
and from including the reciprocity requirement in it is to secure the
recognition and enforcement of American judgments abroad. With this respect,
they advanced the argument that because the United States is generous in its
judgment recognition and enforcement practice, foreign countries lack
motivation to enter into a judgments recognition convention since their
judgments are already liberally given effect in the United States368(*).
The ALI envisaged two ways to achieve this goal. At first,
they argued that the United States needs to create incentives for foreign
countries to enter meaningful negotiations for an international recognition
treaty369(*). In
addition, the drafters of the proposed federal statute believe that the
inclusion of the reciprocity requirement would result in the improvement of
American judgments abroad370(*). They argue that by writing a mandatory reciprocity
provision in the proposed federal statute, foreign countries will stop ignoring
the American judgments because they know if they do so, their own judgments
will be refused in return as a matter of reciprocity. In other words,
«U.S. courts would offer to reward cooperation and punish non-cooperation
by courts of other states»371(*).
To summarize, the drafters of the proposed federal statute
relate the unsatisfactory and unique situation of the United States and the
absence of a reciprocity requirement as a prerequisite to the recognition and
enforcement of foreign judgments. For them «the widespread recognition of
foreign judgments in the United States without the threat of non-recognition
undermined the effectiveness of this strategy in securing the recognition and
enforcement of U.S. judgments abroad»372(*).
Will the reciprocity requirement work as it is expected by the
drafters of the proposed federal statute?
From a non-U.S. point of view, it was always expressed that
the real problem of the non-recognition of the American problem is not the lack
of reciprocity rather it is the complicated and unclear recognition system in
the United States. In addition, what make things more difficult are the unique
legal concepts of the American scholarship especially those with respect to the
minimum contact jurisdiction such as doing business jurisdiction373(*) or tag
jurisdiction374(*). One
scholar stated that «judgments obtained by...proper procedures are readily
recognized and enforced abroad»375(*). Judgments rendered in the United States and which
are based on what is considered as broad and unclear bases of
jurisdiction376(*).
Even with the reciprocity requirement in the law of the
American judgments recognition system, foreign countries will continue to
refuse the enforcement of such judgments especially those which really
contradict the international common sense of the acceptable jurisdiction. In
this context, A Survey on Foreign Recognition of U.S. Money Judgments conducted
by the Committee on Foreign and Comparative Law of the Association of the Bar
of the City of New York377(*)states that «most of the states surveyed have
concept of jurisdiction which are inconsistent or incompatible with U.S.
concepts of long-arm jurisdiction and are not prepared to see such U.S.
concepts expanded into their countries»378(*) and consider matters of punitive damages as matter
of public policy. By committing themselves to recognize and enforce American
judgments, foreign countries will be obliged to give effect to such judgments
rendered in the United States. Therefore, reciprocity will not be that helpful.
The solution may be in concluding international agreements
according to the section 7 (e) which authorizes that the State Department to
conclude treaties related to the recognition and enforcement of foreign
judgments. However, by sticking in its unique legal system, the United States
gives the impression that it wants to have the cake and to eat it too i.e. to
ensure the reception of American judgments abroad without making
concessions379(*). It is
important to point out that to have the benefit of judgment recognition treaty
of the Brussels Convention, the United Kingdom had to consent to stop using of
doctrine such as forum non conveniens380(*) and to accept as exorbitant jurisdiction the
temporarily presence of the defendant in its territory (tag jurisdiction) or to
accept jurisdiction on the ground that English law is applicable. The United
States is far from willing to make these concessions since it considers these
matters as constitutional matters381(*). The American delegation at the Hague Conference
refused to include the doing business jurisdiction in the black list. The
United States seems to be trying to adjust the whole world to its unique
situation rather than be adjusted to the international situation.
Recently, American judgments have received more favourable
acceptance whenever the judgment does not include excessive amount of damages
or was not rendered on the basis of what is considered exorbitant basis of
jurisdiction382(*).
Therefore, by requiring American courts to deny effect to foreign judgments on
the sole basis of lack of reciprocity, foreign countries may retaliate. Such
situation may lead to the isolation of the United States in a world where
countries are enjoying reciprocal recognition and enforcement practices either
at a bilateral level or at a regional level383(*). If the United States wants to improve its judgments
recognition situation, there is only one solution: to align itself with
international standards.
II - Impact of the Reciprocity
Requirement on the Recognition and Enforcement of Foreign Judgments in the
United States
The expected impact of the reciprocity requirement is that
judgments rendered in countries where American judgments are refused
recognition and enforcement will be denied recognition and enforcement in the
United States. The drafters of the proposed federal statute made from
reciprocity a fundamental basis for the recognition of foreign judgments in the
United. It operates even where American judgments are refused recognition and
enforcement due to the broad assumption of jurisdiction in the United States or
the fact the American judgments are not compatible with the public policy of
the foreign states. There is only one exception to the rule concerns the denial
by the foreign courts enforcement of judgments for punitive, exemplary or
multiple damages. The refusal to enforce such judgments shall not be regarded
as denial of reciprocal enforcement of judgments384(*).
The United States seems to be in an arm-wrestling match with
the rest of the world. It concerns the fact that American judgments should be
respected and granted full effect in foreign countries - even though based on
vague and unclear bases of jurisdiction or contrary to public policy - or
foreign countries will lose the advantage of the liberal recognition practice
that their judgments are enjoying in the United States. In other words, the
United States will reward cooperation by continuing the liberal reception of
foreign judgments rendered by the courts that would liberally recognize
American judgments, and will punish non cooperation by slamming the door of the
liberal judgment recognition in the face of those countries where American
judgments are refused recognition and enforcement.
However, in this respect, although the drafter tried to frame
the operation of the reciprocity requirement, its application continues to be
unclear especially with regard to the proof of the foreign state's practice or
law. How the reciprocity requirement can be established? This question was
raised during the ALI's debate on the introduction of the reciprocity
requirement. As Professor Lowenfeld expressed «We are troubled by the
issue of evidence. We have tried to do the best we could by saying that the
question of establishing reciprocity is like other questions of foreign law.
That is, you get experts. Well, some people say that experts are not only
expensive, but also they cause delay and do not always result in convincing
proof. I have, for example, in my casebook, a very interesting case in which a
German court in Berlin declined to enforce a judgment of an American court in a
product-liability case arising out of a jury verdict, and the court says, among
other things, we will not enforce because we can't really tell the reasons for
the American judgment because it was a jury verdict. Now is that the German
law? Well, the case was settled pending appeal. So the issue of burden of proof
becomes a difficult one385(*)».
Another example can be given from Tunisia. If American courts
look at the Tunisian judgments recognition law in abstracto i.e. look
at the Tunisian law as provided for by the Tunisian Private International Law
Code (TPILC), it will appear as very restrictive. This is due to the double
application of the reciprocity requirement in the Tunisian law. With this
respect, the Tunisian PILC requires, among other condition, the fulfilment of
the reciprocity condition first as a precondition to the recognition and
enforcement of foreign judgments. The Article 11/5 requires that «the
exequatur is not granted to foreign decisions and judgments if...the state
where the foreign decision or judgment was rendered does not respect the
reciprocity rule». Tunisian scholars criticized this provision and
describe it as very restrictive since this provision implies the refusal of the
enforcement of foreign judgment for the mere reason that the foreign legal
system imposes conditions unknown to the Tunisian law386(*). Therefore, if a judgment is
rendered by a foreign legal system which requires conditions for the judgments
recognition more severe than those required by the Tunisian vis-à-vis a
Tunisian judgment, the foreign judgment will simply be refused
enforcement387(*).
Secondly, the Tunisian law has the unique provision which requires reciprocity
not only as a precondition to the enforcement of the foreign judgment i.e. in
the phase of checking the regularity of the foreign judgment, but also as a
post-condition to the enforcement of the foreign judgment i.e. reciprocity can
be opposed to the judgment creditor at the substantial enforcement of the
foreign judgment388(*).
On the other hand, if American courts will look at the
Tunisian system in concreto, they may find that Tunisian courts are
liberal in their judgments enforcement practice. This is due first to the fact
that foreign judgments are automatically recognized in Tunisia389(*), which is opposite to the
common law system where foreign judgments are not automatically entitled
recognition. Secondly, except the condition of reciprocity in the TPILC, the
other conditions favour the liberal circulation of judgments since Tunisian
courts are not required to control the assumption of jurisdiction of foreign
courts390(*). Finally,
it is stated by Tunisian scholars that Tunisian courts hesitated to apply the
reciprocity requirement, and in many cases they simply ignored it391(*).
In the light of what has been presented so far, a question
might be raised: will a Tunisian judgment be recognized and enforced in the
United States? According to the drafters of the proposed federal statute, there
is a lot of doubt that with the reciprocity requirement included in the final
draft Tunisian judgments will be enforced unless there are some agreements with
the United States in accordance with the section7 (e). And with this respect,
Tunisia may take the position of the rest world.
Paragraph B - Limits of the
Reciprocity Requirement Proposed Role
Although the Drafters of the proposed federal statute were
keen on solving problems related to the application of the reciprocity
requirement, and that by framing it and providing guidance for courts and
practitioners, the reciprocity requirement as proposed by the ALI continues to
present certain limits. These limits are related to the negative impact of the
reciprocity requirement on the recognition and enforcement practice. In effect,
where reciprocity does not really provide a solution to the problem especially
in the United States (II), the subsistence of these limits
shows the unsuitability of the notion in the field of the recognition and
enforcement of foreign judgments (II).
I - The Proposed Reciprocity
Requirement is not an Effective Solution to the Problem of Recognition and
Enforcement of Foreign Judgments
The question that must be asked is as follow: Will the
reciprocity requirement, as presented by the drafters of the proposed federal
statute, be an effective solution to the problem of the recognition and
enforcement of foreign judgments?
At a first glance, a positive answer may stand. By clarifying
the scope and the methods of the application of the reciprocity requirement may
lead to a liberal recognition and enforcement of foreign judgments. This is
true. Because what the ALI is proposing is as follow: it is not sufficient to
include a reciprocity requirement and wait for the reaction of foreign
countries. It is rather to include the reciprocity requirement and to signal
the willingness to cooperate. What the ALI is recommending is that by making
the first step in recognizing foreign countries' judgments, they ensure to
those foreign countries that their judgments will be given effect in the United
States if they accept to recognize American judgments. In this context, the
section7 should be combined with the other provisions of the proposed federal
statute. With this respect section 2 of the final draft states that «a
foreign judgment shall be recognized and enforced by courts in the
United States in accordance with this Act»392(*). In other words, if a
foreign country accepts to recognize and enforce American judgments, United
States' courts are under the obligation to give effect to foreign
judgments393(*), knowing
that the United States are willing to make the first step and accept to
recognize foreign judgments. This system is similar to the recognition and
enforcement on the basis of comity, but includes the reciprocity requirement as
a commitment to recognize and enforce foreign judgments, and as a balance which
enables the United States to award cooperation and to punish
non-cooperation.
However, this system lacks a fundamental condition. This
condition is the compatibility of foreign judgments with the legal system of
the enforcing state. That is to say that outside a formal agreement on the
matter, every state will continue to apply its own standards for the
recognition and enforcement of foreign judgments. This means that every state
will accept effect to be given to foreign judgments only to those judgments
which are compatible with their legal system. This stems the following: even
though a state is willing to adopt a liberal judgments recognition practice,
the fact that a foreign judgment is not consistent with the public policy of
the enforcing state will be a sufficient reason for its non-recognition and its
non-enforcement. All will depend on the compatibility of the judgment with the
legal system of the enforcing state394(*). With this respect, and looking to the possible
obstacles to judgments recognition, this shows that the list as by far too long
and the judgments recognition practice reveals considerable
divergence395(*).
Then the question is whether a country that commits itself to
a liberal recognition practice but refuses to give effect to a foreign judgment
on the basis of non compatibility of American judgments to its national
standards of jurisdiction and recognition and enforcement of foreign judgments
will be considered as a non reciprocating country? If the answer is yes, then
judgments coming from that state should be denied full effect.
The answer of the proposed federal statute seems to be yes. If
a country that refuses to enforce an American judgment because it considers
that that judgment is incompatible with its legal system, the American courts
will be under the obligation to decline recognition and enforcement of
judgments coming from that state. It is «all or nothing» attitude
i.e. accept our unique judgments recognition system or your judgments will not
be recognized in the United States.
Where this system may work for American ordinary judgments, it
seems that it cannot work for judgments based on what is considered
«exorbitant bases of jurisdiction». As one scholar argued «some
categories of American judgments will be refused enforcement almost
elsewhere»396(*).
For example, in France or in England where the reciprocity
requirement does not exist as a precondition to the recognition and enforcement
of foreign judgments, both countries check whether the rendering court has
appropriate jurisdiction over the matter. In England it should be in accordance
with English law; in France the litigation should have a real connection with
the country where the foreign judgment was rendered. Thus, judgments rendered
on bases of doing business jurisdiction are inconsistent with both national
rules in both countries. With the proposed federal statute, judgments from
France or England, which are considered as having liberal judgment recognition
practice, will be refused recognition in the United States if they refuse to
recognize American judgments rendered on the basis of doing business
jurisdiction.
The system provided by the ALI focuses on the national
standards rather than the internationally accepted standards. It may have a
negative impact on ordinary judgments which are rendered on the bases of
acceptable standards for the recognition and enforcement judgments. This is due
to the fact that when a United States' court concludes there is lack of
reciprocity just because that a foreign country's court refuses to give effect
to an American judgment on the basis that the American rendering court lack
jurisdiction over the matter, there are of possibilities that the foreign
courts retaliate against ordinary judgments of the United States especially
when that law of that country requires reciprocity. Then the focus would no
longer be on whether the judgment was rendered on accepted and objective
standards, but recognition and enforcement would be refused on the sole basis
of reciprocity. As a result, and as one scholar stated «given the number
of variables impacting on a country's decision whether to recognize a foreign
judgment, including its own constitutional limitations, it is unclear that a
new requirement of reciprocity will materially increase the quantum of U.S.
judgments recognized abroad. Indeed...the numbers may decrease in response to
such an overt display of judicial protectionism»397(*). This is practically
possible due to the fact that the solutions provided by the drafters of the
proposed federal statute do not really solve the problems of the applicability
of the reciprocity requirement. Those problems lead to unfairness and hamper
international trade. The ultimate result of such system is that countries would
emphasis on their national standards with reciprocity requirement on the
detriment of the harmonization of judgments recognition and enforcement
standards since reciprocity may create a world which focuses only on private
interests rather than universal interests.
II - The Subsistence of the
Negative Impact of the Reciprocity Requirement Shows the Unsuitability of the
Notion in the Field of the Recognition and Enforcement of Foreign Judgments
Despite the fact that the ALI deserves credit for trying to
solve the problem related to the application of the reciprocity requirement,
the notion seems to cripple any attempt to frame it. The only explanation that
can be given is that the notion of reciprocity is simply unwelcome in the
landscape of the recognition and enforcement of foreign judgments.
By framing the application of the reciprocity requirement, the
drafters of the proposed federal statute thought that the problem of its
negative effects would be solved. At first, placing the burden of proof on the
judgment debtor will not solve the problem of the proof of the reciprocity
requirement, nor to limit the costs and expenses that the proof would require,
even by providing the method of proofs. With this respect, the burden of proof
will be shifted to the judgment creditors when the judgment debtor succeeds to
present document in favour of his claim. Such a situation will lead to a
«battle of experts». One scholar wrote «Given that the burden is
on judgment creditors to establish satisfaction of the reciprocity requirement,
they are likely to put forward a number of expert witnesses in the hopes of
avoiding relitigation. Reciprocally, the judgment debtor, coveting the
opportunity to retry the dispute, will counter the judgment creditor's argument
with his own series of experts. A battle of the experts ensues, with
foreign law experts on both sides, thus increasing the size of the litigation
and the transaction costs for all affected--parties and courts alike398(*)». With this respect one
commentator argued that «reciprocity costs more than it is
worth»399(*).
This situation flips the problem of proof of the reciprocity
requirement. What should be shown to ascertain the lack or the existence of
reciprocity? Is it sufficient to show that there is a substantial doubt that
the foreign court would grant recognition or enforcement to judgments rendered
in the United States? How can the American courts establish such lack of
reciprocity? Will a statute be sufficient to ascertain the existence of
reciprocity? These difficulties come basically from the vagueness and
unclearness of reciprocity. Recall the question of Tunisia where, on the one
hand, recognition is granted automatically to foreign judgments. On the other
hand, the law in Tunisia includes a reciprocity requirement despite its liberal
judgments enforcement standards and most of Tunisian scholars agree that
reciprocity do not have that important role since it is not automatically
applied by Tunisian courts400(*). How can American courts solve this problem? Will
they consider Tunisia as a reciprocal country?
In addition, besides harming the judgment creditor who
succeeded to gain cause of action in a foreign country and who will not be able
to collect the amount of his claim if he fails to show reciprocal treatment of
foreign countries, the reciprocity requirement harms also a defendant who
successfully litigated in a foreign country and he cannot protect himself from
the abuses of the disappointing plaintiff who will try to find another forum
where he can relitigate anew401(*). With the new reciprocity rule, that defendant
cannot rely on the foreign judgments because he will have to prove that foreign
courts will recognize American judgments in similar situation. In this context,
the defendant is not the person who is trying to block the foreign judgment,
but he is the party in the claim who is willing to rely on the foreign judgment
to stop retrying the case again.
The federal statute is silent in this point and does not
provide any solution. This is due to the fact that reciprocity in the proposed
federal statute operates as an affirmative defence. What credit would American
courts give to a judgment which is used passively to stop new proceeding which
is in relation with the foreign judgment? The answer is not clear. However, an
interpretation of the word «the party resisting recognition or
enforcement» can be done, since it can include both plaintiffs and
defendants.
Moreover, the reciprocity requirement, as included in the
proposed federal statute can be described as a «blind reciprocity
requirement that fails to distinguish between alien and domestic judgment
creditors, and thus punish their own citizens for defect of foreign
law»402(*). It
fails to protect litigants from the unfairness and injustice of the application
of the reciprocity requirement especially when those litigants are Americans
who succeeded their action abroad.
Finally, the new proposal may have a negative impact on the
international trade, and the recognition and enforcement. This negative impact
may not be avoided since the proposed reciprocity aims to push foreign
countries to accept the unique concepts of American judgments recognition law.
The message that the ALI wants to convey through the proposed federal statute
is that foreign countries have to accept American judgments as they are i.e.
incompatible with foreign legal systems. If they fail to recognize those
American judgments rendered on exorbitant bases or jurisdiction or granting
huge non-compensatory amount, their judgments will not be recognize in the
United States. As one commentator argued that «given the tit-for-tat
nature of the global order, inclusion of a reciprocity provision in federal
legislation may lead to retaliatory narrowing of the scope of U.S. judgments
currently recognized»403(*)
All of these arguments mandate that reciprocity is an
unwelcome concept in the field of the recognition and enforcement of foreign
judgments. 404(*)
Conclusion of Part II
The ALI proposed reciprocity is the consequence of a unique
situation of the United States with respect to the recognition and enforcement
of foreign judgments. The Americans have the feeling that their grant of comity
has not been rewarded reciprocally. As a result, they started looking for a
solution to secure the recognition of their judgments abroad. We could address
the rejection of the notion through the American scholarship and the reasons
for its rejection. In the same time, we could address the reasons that are
behind the reintroduction of the notion in the field of the recognition and
enforcement of foreign judgments.
The ALI proposed reciprocity represent a new approach to the
recognition and enforcement of foreign judgments in an era that is
characterized by the interaction, globalization and the need of harmonization.
For these reasons, the ALI has taken all these aspects into consideration when
it has addressed the problem of the non-reception of American judgments abroad.
Based on securing national judgments along with making the first step by
signalling cooperation, the reciprocity may have an effective effect in
ensuring global recognition and enforcement of judgment. It is not the unclear
and imprecise reciprocity, but the framed reciprocity which tries to solve the
problems of the applicability of the notion.
On the other hand, the drafters of the proposed federal
statutes used reciprocity in order to make foreign countries accept American
standards. There is a refusal to align the American legal practice with the
international standards. The idea of the ALI is that American courts will
continue to grant comity to but use negative reciprocity as a defence for the
non recognition of foreign judgments. This conception may work between
countries that share common standards and that are willing to push their
cooperation. However, it is far from being helpful for the Americans because
their system presents many differences as concerns what is considered
acceptable standards. The failure of the Hague convention can provide a good
example of what was advanced.
Consequently, the ALI's proposed reciprocity will not work for
the United States for the simple reason that the judgments recognition system
in the United States includes concepts that are strange for civil law and for
common law countries. In addition, the United States showed its refusal to
change its own legal system especially with respect to the assumption of
jurisdiction by American courts. Therefore, even with the reciprocity
requirement in its law, foreign countries will continue to refuse judgments
affording unreasonable non-compensatory amount of damages awards or based on a
broad or exorbitant bases of jurisdiction. However, for ordinary judgments, it
is expected that they may not find resistance since they would be compatible
with foreign legal systems. To conclude, there is no other choice for the
United States but to align its standards on the international accepted
standards for the recognition and enforcement of foreign judgments.
Finally, despite the change of the rational for the
application of the reciprocity, it continues to have the same negative impact
on judgments recognition practice, litigants and the international movement of
people and goods. This subsistence of these negative impact reflect the
non-compatibility of the notion with the spirit of the recognition and
enforcement of foreign judgments.
General Conclusion:
This paper tried to address the role of the reciprocity in
relation with the harmonization of standards of the recognition and enforcement
of foreign judgments. The issue is not easy given the fact the imprecise and
changeable nature of the reciprocity. In fact, where reciprocity can be applied
positively either unilaterally or multilaterally, it can be applied negatively.
Unfortunately, where the multilateral application of the reciprocity has not
reached a universal level yet, its negative application is more common than its
positive application.
Reciprocity may lead to a real harmonization to the standards
of the recognition and enforcement of foreign judgments regardless of its
nature and impact on litigants. Applied positively on the basis of comity, it
leads to the reception of foreign judgments and may influence the practice of
foreign countries to adopt liberal recognition practices. Applied negatively,
countries which suffered the non-recognition of their judgments may align on
the most restrictive solution of judgments recognition practices. Game
theorists advanced the argument that this situation provide a real commitment
to recognize and enforce judgments coming from other countries with reciprocity
requirements. As a result, countries will adopt the same standards, although
restrictive, but which ensure reciprocal judgment recognition practices.
The main idea which underlies this work consists in the need
of the reciprocity to adapt itself to the new developments affecting the world
- especially the decline of the notion of sovereignty in the era of
globalization and cross border litigation - in order to subsist in the field of
the recognition and enforcement of foreign judgments. This paper tried to
assess the new arguments given in favour of the reciprocity rule in the light
of those new developments.
However, whether applied as a tool of protectionism or as a
tool of trade liberalization, reciprocity could and can eliminate some
obstacles that face the harmonization of judgments recognition and enforcement
standards. This can happen since reciprocity can draw a real commitment from
foreign countries to cooperate. In the field of the recognition and enforcement
of foreign judgments, the cooperation will be expressed by reciprocal liberal
recognition and enforcement practice.
Yet, the negative impact of the reciprocity on the recognition
and enforcement practices and litigants can hardly legitimate its presence in
the field of the recognition and enforcement of foreign judgments. The fact to
refuse valid judgments on the basis of reciprocity violates the tenets of
justice and that despite the goal it wants to reach.
As a result, the emphasis should not be put on the negative
aspect of the reciprocity but on its positive aspect in an attempt to try to
eliminate the negative aspect of the reciprocity requirement. This can happen
only by cooperation and harmonization of standards which compel concessions.
Concessions are effective when they take the form of treaties. Treaties are
considered as the best tool not only for the harmonization of standards of
judgments recognition and jurisdiction, but also to provide a unified system of
recognition and enforcement of foreign judgments. The Brussels regime presents
a perfect illustration. Despite the differences of languages, culture and legal
traditions of its member states, the Brussels regime could remove many
difficulties and uncertainties of litigating in Europe and has enormously
improved the prospect of the enforcement of member state judgments.
Therefore, the present work tried to show that the liberal
recognition and enforcement of foreign judgments is welcomed by the
international community when , and there are efforts to reach this goal. But
what really hampers those efforts is not the difference of the standards for
the recognition and enforcement of foreign judgments, but what is the judicial
jurisdiction itself. In this context, reference should be addressed to
Professor Janet Walker who wrote «harmonizing jurisdictional law is a
special kind of project because the law of jurisdiction reflects, like no other
area of law, the aspiration of particular legal systems for private law
adjudication...changes in jurisdiction have the capacity to affect our basic
trust in the civil justice system, even at the level of individual cases...When
a court is asked to exercise jurisdiction over a dispute that should not
decide, we call that abuse; and when a court declines to hear a case that it
should decide, we call that a denial of justice. Both of these situations call
into question the integrity of the system405(*)».
The solution is found in reciprocity as found in the idea of
concessions; same as human social life. Where human beings need to make
concessions in order to organize their social life and limit abuses, countries
need to reciprocally accept their differences in order to promote recognition
and enforcement of foreign judgments. Should a new a system be built, it had to
be based on acceptance of differences and the opening of legal systems to each
other. A system based on the application of reciprocity as tool to punish those
who do not have same conception would create an eye for an eye system, and
referring to what Mahatma Ghandi once said «an eye for an eye and soon
the whole world becomes blind».
End
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Court Decisions
Beals v. Saldanha, 2003
Burnham v. Superior Court of California, County of Marin, 495 US
604, 110 SCt 2105 (US Supreme Court)
Erie Railroad Co. v. Tompkins
Hilton v. Guyot, Supreme Court of the United States, 1895, 159
U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95
Hughs v. Cornelius, 83 Eng. Rep. 247 (K.B 1683)
In Fauntleroy v. Lum 1908,
Johnston v. Société Générale
Transatlantique, 242 N.Y. 381, 152 N.E. 121
Laker Airways, Ltd. v. Sabena, Belgium World Airlines, 235
U.S. App. D.C. 207 (D.C Cir.1984)
Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488, 20
S.Ct. 708, 710, 44 L.Ed. 856
Milwaukee County v. M.E White Co, 296 US. 268, 276-77
(1935)
Morguard Investment v. De Savoye, 1990
Schibsby v. Westenholz, (1870) LR 6 QB 155 (QB, England)
Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d
435, 440 (3rd Cir, 1971)
Swift v. Tyson US SC 1842
Webography
http://proquest.umi.com
http://
www.britanica.com
http://
www.findarticle.com
http://
www.hcch.net
http://
www.heinonline.com
http://
www.jstor.com
http://
www.nccusl.org
http://
www.ppl.nl
http://
www.westlaw.com
http://
www.wikipedia.com
http://ec.europa.eu
* 1. «Globalization can
be understood as both descriptive and normative concept. As its most general,
globalization is the term used to describe the communication, interaction,
migration, and intercourse between autonomous communities. At its most
specific, globalization is the term used to describe particular forms of
interaction prevalent in any particular historical epoch. As a normative
concept, globalization is the name that is given to a particular ideology of
transnational interaction among and between members of different political
communities»; See Larry Catá Backer, Harmonizing Law in an Era
of Globalization - Convergence, Divergence and Resistance, Carolina
Academic Press, 2007, at preface xiii. Available at
www.cap-press.com
* 2. Mary Kay Kane,
Globalization and Cross-Border Litigation, Global Jurist Topics,
Vol.1, published by The Berkley Electronic Press, 2001 p. 1 available at
www.bepress.com
* 3. Larry Catá
Backer, Harmonizing Law in an Era of Globalization - Convergence,
Divergence and Resistance, Carolina Academic Press, 2007, at preface
xiii
* 4. George A. Zaphiriou,
Harmonization of Private Rules between Civil and Common Law Jurisdiction,
the American Journal of Comparative Law, Vol.38, Supplement. U.S. Law in
an Era of Democratization, 1990, p. 71
* 5.
www.wikipedia.com
* 6. Mary Kay Kane,
Globalization and Cross-Border Litigation, Global Jurist Topics,
Vol.1, published by The Berkley Electronic Press, 2001 p. 1 available at
www.bepress.com
* 7. Paul B. Stephan,
Futility of Unification and Harmonization in International Commercial Law,
University of Virginia School of Law, Legal Studies Working Papers Series,
Working Paper No. 99-10, 1999, available at
http://papers.ssrn.com. «The
effort's successes include, citing only the most prominent examples, the Vienna
Convention on the International Sale of Goods, the Brussels Convention for the
Unification of Certain Rules of Law Relating to Bills of Lading, the Warsaw
Convention on the Unification of Certain Rules Relating to International
Transportation by Air, the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters,
the Hague Convention on the Taking Evidence Abroad in Civil or Commercial
Matters, and the International Chamber of Commerce's International Rules for
the Interpretation of Trade Terms (Incoterms) and Uniform Customs and Practice
for Documentary Credits (UCP)».
* 8. For example, the Hague
Convention on the Civil Aspects of International Child Abduction of October 25,
1980, the Hague Convention on Protection of Children and Cooperation in Respect
of Intercountry Adoption of May 29, 1993 etc...
* 9. Volker Behr,
Enforcement of United StateStates Money Judgments in Germany, Journal
of Law and Commerce, spring 1994,
www.westlawinternational.com,
See also, Ronald A. Brand, Enforcement of Foreign Money-Judgments in the
United States: In Search of Uniformity and International Acceptance , 67
Notre Dame L. Rev. 253, 255 (1991), and Joachim Zekoll, The Enforceability
of American Money Judgments Abroad: A Landmark Decision by the German Federal
Court of Justice , 30 Colum. J. Transnat'l L. 641, 641 (1992).
* 10. J-G Castel, Canadian
Conflict of Laws- Fourth Edition, Butterworths, 2000, p. 269
* 11. Robert B. von Mehren
and Michael E. Patterson, Recognition and Enforcement of Foreign-Country
Judgments in the United States, Law and Policy in International Business ,
Vol. 6:37, 1974.
* 12. Gary B. Born,
International Civil Litigation in US Courts-Third Edition, 1996, p.
937
* 13. Antonio F. Perez,
The International Recognition of Judgments: The Debate Between Private and
Public Law Solutions, Berkley Journal of International Law, 2001 at
www.westlaw.com.
* 14. Antonio F. Perez, The
International Recognition of Judgments: The Debate Between Private and Public
Law Solutions, 19 Berkeley J. Int'l L. 44, 2001 available at
www.westlaw.com
* 15. Friedrich K. Juenger,
The recognition of Money Judgments in Civil and Commercial Matters,
Selected Essays on the Conflict of Law, 2002, p.284
* 16. J. Wilson, What is
Sovereignty?, Available at http://www.rightsandwrong.com.au
* 17. Alain de Benoist, What
is Sovereignty?,Article translated by Julia Kostova from «Qu'est-ce que la
souveraineté? in éléments,No. 96 (November 1999), pp.
24-35 available at http://www.alaindebenoist.com
* 18. Susan L. Stevens,
Commanding International Judicial Respect : Reciprocity and the
Recognition and Enforcement of Foreign Judgments, 26 Hastings
International & Comparative Law Review, 2002 - 2003 p. 118 at
www.heinonline.com and
www.westlaw.com.
* 19. Dou Shaowu & Liu
Qian, Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters available at www.civillaw.com.cn
* 20. Burnham v. Superior Court
of California, County of Marin, 495 US 604, 110 SCt 2105 (US Supreme Court)
* 21. Friedrich K. Juenger,
The recognition of Money Judgments in Civil and Commercial Matters,
Selected Essays on the Conflict of Law, 2002, p.286
* 22. Sung Hoon Lee,
Comity and Reciprocity in Foreign Judgment Recognition, The Berkley
Electronic Press, 2005 available at
www.expresso.com,
* 23. Quoted in
CHEATHAM, DOWLING, GOODRICH & GRISWOLD, CASES AND MATERIALS ON
CONFLICT OF LAWS 272, 274 (1936)
* 24. Friedrich K. Juenger,
The recognition of Money Judgments in Civil and Commercial Matters,
Selected Essays on the Conflict of Law, 2002, p.284.
* 25. Ali Mezghani,
Commentaires du Code de Droit International Privé, Tunis,
C.P.U, 1999, p. 182
* 26. Peter Nygh, The
Preliminary Draft Hague Convention on Jurisdiction and Foreign Judgments in
Civil and Commercial Matters, International Conflict of Laws for the Third
Millennium - Essays in Honor of Friedrich K. Juenger, Edited by Patrick J.
Brochers and Joachim Zekoll, 2000, p.266
* 27. Olga Vorobeva,
Reciprocity in Recognition and Enforcement of Foreign Judgments in Russia
and the United StateStates, Russia in the International Context: PIL,
Cultural Heritage, Intellectual Property, Harmonization Law, 2004. Berliner
Wessenchaft-Verlag Gmbtt, p. 242.
* 28. J-G Castel,
Introduction to Conflict of Laws - Fourth Edition, Butterworths, 2002,
p. 103
* 29. Friedrich K. Juenger,
The recognition of Money Judgments in Civil and Commercial
Matters, Selected Essays on the Conflict of Law, 2002, p.284
* 30. Fransesco Parisi &
Nita Ghei, The Role of Reciprocity in International Law, Cornell
International Law Journal, 2003 available at
www.westlaw.com
* 31. Young-Joon Mok, The
Principle in the United Nations Convention on the Recognition and Enforcement
of Foreign Arbitral Award of 1958, CASE W. RES. J. INT'L L, Vol.21:123,
1989, p.124
* 32. Fransesco Parisi &
Nita Ghei, The Role of Reciprocity in International Law, Cornell
International Law Journal, 2003 available at
www.westlaw.com
* 33. Akiko Yanai,
Reciprocity in Trade Liberalization, APEC Study Center Institute of
Developing Economies, Working Paper Series 00/01 - No. 2, 2001, p. 2
* 34. Id, p. 3
* 35. Id, p. 1.
* 36. Young-Joon Mok,
The Principle in the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Award of 1958, CASE W. RES. J. INT'L L,
Vol.21:123, 1989, p.124
* 37. Imed Bejaoui, La
Règle De Réciprocité Dans Le Code Tunisien de Droit
International Privé, Mémoire Pour l'Obtention du
Mastère en Droit des Affaires, 2005-2006, p. 6
* 38. Louisa B. Childs,
Shaky Foundations: Criticism of Reciprocity and the Distinction Between
Public and Private International Law, International Law and Politics, Vol.
38:221, 2006, p. 224
* 39. Brandon B. Danford,
The Enforcement Of Foreign Money Judgments in the Unites States and Europe:
How Can We Achieve a Comprehensive Treaty?, The Review of Litigation,
2004, p. 419.
* 40. Volker Behr,
Enforcement of United States Money Judgments in Germany, Journal of
Law and Commerce, 1994 available at
www.westlaw.com
* 41. Ali Mezghani,
Droit International Privé: Etats Nouveaux et Relations
Privées Internationales, Tunis, CERES-CERP, Tunis, 1999, p. 407-408
* 42. Some scholars have
predicted the disappearance of the notion from the landscape of the recognition
and enforcement practices. Professor Juenger wrote that «reciprocity no
longer enjoys the popularity it did...Increasingly, courts and legislatures
reject this impediment». See Friedrich K. Juenger, The recognition of
Money Judgments in Civil and Commercial Matters, Selected Essays on the
Conflict of Law, 2002, p.315
* 43. Young-Joon Mok,
The Principle in the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Award of 1958, CASE W. RES. J. INT'L L,
Vol.21:123, 1989, p.124
* 44. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 292
* 45. Id.
* 46. Id; Professor Junger
added that «if recognition is considered to entail a surrender of forum
sovereignty, the temptation looms large to impose any number of addition
condition for such a sacrifice».
* 47. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
Courses of The Hague Academy of Private International Law, Tome 154 of the
Collection, 1977 p. 114
* 48. Susan L. Stevens,
Commanding International Judicial Respect : Reciprocity and the
Recognition and Enforcement of Foreign Judgments, 26 Hastings
International & Comparative Law Review, 2002 - 2003 p. 117 at
www.heinonline.com and
www.westlaw.com. See also, Joel R.
Paul, Comity in International Law, 32 Harvard International Law
Journal, 1991 at
www.westlaw.com
* 49. Id.
* 50. Id.
* 51. The principle of Res
Judicata means once the judgment is rendered by court and become final, the
issue is considered as being definitively settled by a judicial decision,
BLACK'S LAW DICTIONARY 1312 7th Edition 1999.
* 52. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
Courses of The Hague Academy of Private International Law, Tome 154 of the
Collection, 1977 p. 114
* 53. Id.
* 54. Friedrich K. Juenger,
The recognition of Money Judgments in Civil and Commercial Matters,
Selected Essays on the Conflict of Law, 2002, p.284
* 55. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
Courses of The Hague Academy of Private International Law, Tome 154 of the
Collection, 1977 p. 114
* 56. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
Courses of The Hague Academy of Private International Law, Tome 154 of the
Collection, 1977 p. 114
* 57. Id.
* 58. Joel R. Paul, Id.
Friedrich Juenger, The Recognition of Money Judgements In Civil and
Commercial Matters, Selected Essays on the Conflict of Laws, p. 286-287
* 59. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
Courses of The Hague Academy of Private International Law, Tome 154 of the
Collection, 1977 p. 114
* 60. Pedro J.
Martinez-Fraga and Greenberg Traurig, P.A. Comity as a Step Towards the
Unification of Private Procedural International Law, The Berkley
Electronic Press, 2006 available at
www.expresso.com
* 61. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
Courses of The Hague Academy of Private International Law, Tome 154 of the
Collection, 1977 p. 114
* 62. Jean Voet wrote
that if the authorities of different states which were independent and
sovereign, reciprocally refused their decisions by a mutual condescension, they
made the condition of their subjects harder. Each of them would disturb,
disrupt and cancel the acts of the other states, even the best ones, and would
see the other states disturb, ruin and annihilate its acts by virtue of an eye
for an eye and the rigour of the law.
* 63. Sung Hoon Lee,
Comity and Reciprocity in Foreign Judgment Recognition, The Berkley
Electronic Press, 2005 available at
www.expresso.com
* 64. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 286-287
* 65. Sung Hoon Lee,
Comity and Reciprocity in Foreign Judgment Recognition, The Berkley
Electronic Press, 2005 available at
www.expresso.com,
* 66. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 290
* 67. Robert Perret, La
Reconnaissance et L'Exécution des Jugements Etrangers Aux Etats-Unis,
Librairie de Droit, p. 73~80
* 68. Arthur von Mehren and
Donald Trautman, Recognition of Foreign Adjudications: a Survey and a
Suggested Approach, Harvard Law Review, 1968 available at
www.westlaw.com
* 69. Russel v. Smith 1842.
* 70. Id.
* 71. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 290
* 72. These defenses are
limited to the proof that the rendering court lacked jurisdiction or that the
judgment was obtained by fraud. See Eugene F. Scoles, Conflict of Laws,
third Edition, ST. PAUL, MINN 2000, p. 1188.
* 73. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 290
* 74. Schibsby v.
Westenholz, (1870) LR 6 QB 155 (QB, England), Janet Walker, Private
International Law, Cases and Materials, 2004, p.310
* 75. Common law countries
generally follow the early English law on the recognition and enforcement of
foreign judgments. The attitude adopted by English courts has been adopted to
permit the successful suitor to bring an action in England on the foreign
judgment. While deciding whether to give effect to foreign judgment, English
court, and common law courts generally, will consider whether requirement for
recognition and enforcement are met. These requirements are traditionally
related to the prima facie enforceability of the foreign judgment which means
that the foreign judgment should be not only issued by a court of a competent
jurisdiction but also the foreign judgment should be final an conclusive.
However, even though the foreign judgment is prima facie enforceable, the
foreign judgment may be denied recognition and enforcement if it appears that
one of the bases for non recognition, which are fraud, natural justice an
public policy, are proven by the defendant.
* 76. Hilton v. Guyot,
Supreme Court of the United States, 1895, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed.
95
* 77. J. Story,
Commentaries On The Conflict Of Law 7-8, (1834), Young-Joon Mok,
The Principle Of Reciprocity In The United Nations Convention On The
Recognition And Enforcement Of Foreign Arbitral Awards of 1958, 21 Case W.
Res. J. Int'l L. 123, 1989 at
www.heinonline.com
* 78. Mast, Foos & Co.
v. Stover Mfg. Co., 177 U.S. 485, 488, 20 S.Ct. 708, 710, 44 L.Ed. 856
* 79. Johnston v.
Société Générale Transatlantique, 242 N.Y. 381, 152
N.E. 121
* 80. Somportex Ltd. v.
Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3rd Cir, 1971)
* 81. In Canada, as well as
in the United States, judgments rendered in sister-states or sister-provinces
are considered as foreign judgments. However, unlike the United States where
the recognition and enforcement of sister-state judgments is governed by the
Full Faith and Credit Clause (the article IV of the constitution see chapter II
below the Full Faith and Credit), there is no such commend in the law of
judgment recognition in Canada, and sister-provinces judgments continue be
regarded as strictly foreign judgments and were treated as such. In the
Morguard case, the Canadian Supreme Court changed this rule in relation to
inter-provincial judgments and required that the Full Faith and Credit should
be given to inter-provincial judgments. See H. Scott Fairley and John
Archibald, After the Hague: Some Thoughts on the Impact on Canadian Law of
the Convention on Choice of Court Agreements, ISLA Journal of
International & Comparative Law, Vol. 12:417, 2006, p. 418-423
* 82. Beals v. Saldanha,
2003
* 83. Morguard Investment v.
De Savoye, 1990
* 84. Justice La Forest,
writing for The Supreme Court of Canada stated «I much prefer the more
complete formulation of the idea of comity adopted by the Supreme Court of the
United States in Hilton v. Guyot. Morguard Investment v. De Savoye, 1990
* 85. Hilton v. Guyot (1895)
* 86. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
courses of Private International Law, 1977, Tome 154 of the Collection, p.
116-120
* 87. See the English
decision Hughs v. Cornelius, 83 Eng. Rep. 247 (K.B 1683)
* 88. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
courses of Private International Law, 1977, Tome 154 of the Collection, p.
116-120
* 89. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
courses of Private International Law, 1977, Tome 154 of the Collection, p.
116-120
* 90. Laker Airways, Ltd. v.
Sabena, Belgium World Airlines, 235 U.S. App. D.C. 207 (D.C Cir.1984)
* 91. This is the situation
for example in the Netherlands and in Sweden where foreign judgment recognition
is subjected to the existence of a formal treaty on the recognition and
enforcement of foreign judgments. However, courts in both countries relaxed the
application of the rule to allow foreign judgments having effect even in the
absence of a formal treaty and that by accepting the enforcement of foreign
judgment when jurisdiction is based on a forum selection agreement or on the
basis of submission whenever the judgment debtor participated in a foreign
proceeding. See Friedrich Juenger, The Recognition of Money Judgements In
Civil and Commercial Matters, Selected Essays on the Conflict of Laws, p.
308-309
* 92. Among those countries
which relaxed from the application of the reciprocity requirement as a
precondition to the recognition and enforcement of foreign judgments and that
the application of comity led to a change and an improvement in their
recognition policy, the German example can give a perfect illustration. It was
argued that the liberal practice of the United States has led to wider
acceptance of American judgments by German Courts by relaxing from rules of the
judgments recognition. See Friedrich Juenger, The Recognition of Money
Judgements In Civil and Commercial Matters, Selected Essays on the
Conflict of Laws, p. 314-315; see also Brandon B. Danford, The Enforcement
Of Foreign Money Judgments in the Unites States and Europe: How Can We Achieve
a Comprehensive Treaty?, The Review of Litigation, 2004, p. 420.
* 93. Volker Behr,
Enforcement of United States Money Judgments In Germany, Journal of
Law and Commerce, 1994 available at
www.westlaw.com
* 94. Brandon B. Danford,
The Enforcement Of Foreign Money Judgments in the Unites States and Europe:
How Can We Achieve a Comprehensive Treaty?, The Review of Litigation,
2004, p. 420.
* 95. Laker Airways, Ltd. v.
Sabena, Belgium World Airlines (1984)
* 96. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 290
* 97. Sami Bostanji, La
Notion de La Réciprocité dans les Relations Privées
Internationales (Réflexions à la Lumière du Nouveau Code
Tunisien de Droit International Privé , Le Code Tunisien
de Droit International Privé, Deux ans Après, 2003, p. 85
* 98. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
courses of Private International Law, 1977, Tome 154 of the Collection, p.
142
* 99. Id.
* 100. The Tunisian
Official Gazette, Deliberation of the National Assembly, 02/11/1998
* 101. Sami Bostanji,
La Notion de La Réciprocité dans les Relations Privées
Internationales (Réflexions à la Lumière du Nouveau Code
Tunisien de Droit International Privé , Le Code Tunisien
de Droit International Privé, Deux ans Après, 2003, p. 84.
* 102. Hilton v. Guyot,
1895
* 103. Andreas F.
Lowenfeld, International Litigation and Arbitration, Second Edition,
American Casebook Series, 2002, p. 399.
* 104. Eugene F. Scoles,
Conflict of Laws, Third edition, ST. PAUL , MINN, 2000, p.1189
* 105. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 290
* 106. Id, p. 312
* 107. This is a unique and
an extreme example in Tunisian law where the reciprocity can be apposed to
judgment creditor after he successfully brings his action for the enforcement
in Tunisia. The Article 18 of the Private International Law Code provides that
«foreign decisions and judgments, which become enforceable in Tunisia, are
enforceable in accordance with the Tunisian law without prejudice to the rule
of reciprocity». See Sami Bostanji, La Notion de La
Réciprocité dans les Relations Privées Internationales
(Réflexions à la Lumière du Nouveau Code Tunisien de Droit
International Privé , Le Code Tunisien de Droit
International Privé, Deux ans Après, 2003, p. 79
* 108. Sami Bostanji,
La Notion de La Réciprocité dans les Relations Privées
Internationales (Réflexions à la Lumière du Nouveau Code
Tunisien de Droit International Privé , Le Code Tunisien
de Droit International Privé, Deux ans Après, 2003, p. 90
* 109. Louisa B. Childs,
Shaky Foundations: Criticism of Reciprocity and the Distinction Between
Public and Private International Law, International Law and Politics, Vol.
38:221, 2006, p. 224
* 110. Id, p. 227
* 111. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 290
* 112.Gary B. Born,
International Civil Litigation in US Courts, 3rd edition 1996, p954
* 113. Louisa B. Childs,
Shaky Foundations: Criticism of Reciprocity and the Distinction Between
Public and Private International Law, International Law and Politics, Vol.
38:221, 2006, p. 224
* 114. Prisoners' Dilemma
is a hypothetical situation used to illustrate strategic decision-making. In
Prisoners' Dilemma two criminals are arrested and kept apart. Each is told that
if neither confesses, the police have enough evidence to send them to jail. By
cooperating and not informing on each other, the criminals avoid extended
sentences. If one chooses not to confess but the other confesses, the
non-confessing criminal will encounter the maximum sentence, and the confessing
party will have the minimum sentence. If both confess they will have medium
sentence.
* 115. Game theory studies
strategic interactions between agents. In strategic games, agents choose
strategies which will maximize their return, given the strategies the other
agents choose. The essential feature is that it provides a formal modeling
approach to social situations in which decision makers interact with other
agents. At
www.wikipedia.com
* 116. Antonio F. Perez,
The International Recognition of Judgments: The Debate Between Private and
Public Law Solutions, Berkley Journal of International Law, 2001 at
www.westlaw.com.
* 117. Antonio F. Perez,
The International Recognition of Judgments: The Debate Between Private and
Public Law Solutions, Berkley Journal of International Law, 2001 at
www.westlaw.com.
* 118. Michael Whincop,
The Recognition Scene: Game Theoretic in the Recognition of Foreign
Judgments, at
www.austlii.edu.au/au/journals/MULR/1999/17.html
* 119. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
courses of Private International Law, 1977, Tome 154 of the Collection, p. 146
* 120. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 314
* 121. Russell J.
Weintraub, How Substantial Is Our Need For Judgments-Recognition Convention
and What Should We Bargain Away to Get It? Brooklyn Journal of
International Law, 1998 available at
www.westlaw.com.
* 122. Eric B. Fastiff,
The Proposed Hague Convention on the Recognition and Enforcement of Foreign
Judgments: A Solution to Butch Reynolds's Jurisdiction and Enforcement
Problems, Cornell International Law Journal, 1995 available at
www.westlaw.com.
* 123. Russell J.
Weintraub, How Substantial Is Our Need For Judgments-Recognition Convention
and What Should We Bargain Away to Get It? Brooklyn Journal of
International Law, 1998 available at
www.westlaw.com.
* 124. Eric B. Fastiff,
The Proposed Hague Convention on the Recognition and Enforcement of Foreign
Judgments: A Solution to Butch Reynolds's Jurisdiction and Enforcement
Problems, Cornell International Law Journal, 1995 available at
www.westlaw.com.
* 125. Id.
* 126. Karim Toumi,
Reciprocity Requirements, Master in Common law, Faculty of Legal,
Political and Social Sciences of Tunis, 2006, p. 13
* 127. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 307-308.
* 128. Some scholars argues
that even though the law in those countries refuse the recognition and
enforcement of foreign judgments in the absence of international agreement on
the matter, foreign judgments are often given effect.
* 129. Convention between
the United Kingdom and Canada for the Reciprocal Recognition and Enforcement of
Judgments in Civil and Commercial Matters, Apr. 24, 1984
* 130. Registration is a
statutory procedure especially in common law countries which is parallel to the
action in common law. Unlike the action in common law which consists in a
refresh action on the judgment that, if accepted, leads to a new judgment for
the recognition and/or enforcement of the foreign judgment, the registration is
an administrative procedure which simply consists in a request to register the
foreign judgment within six years from its issuing date.
* 131. The principle of
registration applies not only to the countries Commonwealth but also to foreign
countries. An Order in Council determines countries to which the provision of
the act applies. Orders to this effect have been made Pakistan, Bangladesh,
India, Australia, Canada... and for countries outside the Commonwealth orders
have been made for Austria, Belgium, France, Israel, Italy, Netherlands,
Norway, Germany...
* 132. Susan L. Stevens,
Commanding International Judicial Respect: Reciprocity and the Enforcement
of Foreign Judgments, 26 Hasting Int'l & Comp. L. Rev, 2002-2003 at
www.heinonline.com See also
...
* 133. The Convention
between Canada and the United Kingdom for the Reciprocal Recognition and
Enforcement of Judgments in Civil and Commercial Matters, 1984
* 134 . Janet Walker,
Halsbury's Laws of Canada, First Edition, 2006, p. 405
* 135. P E Nygh &
Marin Davis, Conflict of Laws in Australia, Seventh Edition,
LexisNexis Butterworths, 2002, p. 199
* 136 . Id, p. 200 -
201.
* 137. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 288
* 138. Paul Lagarde, La
Réciprocité en Droit International Privé, Collected
courses of Private International Law, 1977, Tome 154 of the Collection, p.
176
* 139. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 288
* 140. Id.
* 141. Eric B. Fastiff,
The Proposed Hague Convention On The Recognition and Enforcement of Civil
and Commercial Judgments: A Solution to Butch Reynolds's Jurisdiction and
Enforcement Problem, Cornell International Law Journal, Spring 1995
* 142. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 288
* 143. Kurt H. Nadelmann,
Conflict of Laws: International and Interstate - Selected Essays,
Kluwer Academic Publisher, 1972
* 144. J-G Castel,
Introduction to Conflict of Laws, Fourth Edition, Butterworth Canada
Ltd. 2002, p.3
* 145. Taylor Von Mehren,
Recognition and Enforcement of Foreign Judgments - General Theory and The
Role of Jurisdictional Requirements, Collected Courses of The Hague
Academy of International Law, 1981, p. 86.
* 146. Eugene F. Scoles,
Conflict of Laws, Third Edition, ST.PAUL,MINN.,2000, p.1143
* 147. That was the case in
Canada before the famous decision of the Canadian Supreme Court in Morguard
Investments Ltd v. De Savoye in 1990 where the Supreme Court made a
fundamental change in the rules of jurisdiction and the recognition and
enforcement of judgments between sister-provinces of the Federal State of
Canada. Before the said decision of the Canadian Supreme Court, recognition and
enforcement of judgments rendered in sister-provinces followed the traditional
common-law rules which were applied equally to sister-state judgments and to
foreign judgments. In Morguard decision, the Canadian Supreme Court expressed
the view that Canadian courts had made «a serious error in transporting
the rules developed for the enforcement of foreign judgments to the enforcement
of judgment from sister provinces» and that «more generous acceptance
of judgments of the courts of other constituent units of the federation»
should be addressed. As a result, courts in one province or territory or
territory «should give full faith and credit...to the judgments given by a
court in another province and territory, so long as that court has properly, or
appropriately, exercised jurisdiction in the action». See Janet Walker,
Walker «Rule 17 - Service Outside Ontario», Private
International Law, Cases and Materials, 2004, p. ... and J-G Castel,
Introduction to Conflict of Laws, Fourth Edition, Butterworth Canada
Ltd. 2002, p. 104
* 148. William L. Reynolds
& William M. Richman, The Full Faith and Credit Clause: A Reference
Guide to The United States Constitution
* 149. Louisa B. Childs,
Shaky Foundations: Criticism of Reciprocity and the Distinction Between
Public and Private International Law, International Law and Politics, Vol.
38:221, 2006, p. 224
* 150. William L. Reynolds
& William M. Richman, The Full Faith and Credit Clause: A Reference
Guide to The United States Constitution
* 151 . Note that
this provision is remarkably similar to the Article IV of the U.S
Constitutional Convention.
* 152. U.S Constitution
art. IV section1.
* 153. William L. Reynolds
& William M. Richman, The Full Faith and Credit Clause: A Reference
Guide to The United States...
* 154. The section 93 of
the Restatement (Second) Conflict of Law (1971) requires that the Full Faith
and Credit Clause requires state courts, as a matter of constitutional law, to
recognize any valid judgment rendered in another state of the Union. See Gary
B. Born, International Civil Litigation in US Courts-Third Edition,
1996, p. 937
* 155. Taylor Von Mehren,
Recognition and Enforcement of Foreign Judgments - General Theory and The
Role of Jurisdictional Requirements, Collected Courses of The Hague
Academy of International Law, 1981, p. 93
* 156. Eugene F. Scoles,
Conflict of Laws, Third Edition, Hornbook Series, West Group,
ST.PAUL,MINN.,2000 p.1145
* 157. In Fauntleroy v. Lum
1908, the Supreme Court held that the judgment, which was based on an erroneous
view of the law of the enforcing state, could not be refused enforcement on the
ground that it violates the enforcing state's public policy even though the
judgment was based on a misapprehension of the enforcing state's law.
* 158. Symeon C.
Symeonides, Wendy Collins Perdue and Arthur T. Von Mehren, citing professor
Whitten in Conflict of Laws: American, Comparative, International Cases and
Materials, American Case book Series, ST.PAUL,MINN.,1998, p. 756
* 159. Id.
* 160. Taylor Von Mehren,
Recognition and Enforcement of Foreign Judgments - General Theory and The
Role of Jurisdictional Requirements, Collected Courses of The Hague
Academy of International Law, 1981, p. 93
* 161. The Fifth Amendment
reads that «No person shall be held to answer for a capital, or otherwise
infamous crime, unless on presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in Militia, when actual service
in time of War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life,
liberty or property, without due process of law; nor shall private property be
taken for public use, without just compensation ...» the Fourteenth
Amendment reads that «Section 1. All persons born or naturalized in the
United States, and subject to jurisdiction thereof, are citizens of the United
States and of the state wherein they reside. No state shall make or enforce any
law which shall abridge the privilege or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty or property
without due process of law; nor deny to any person within its jurisdiction the
equal protection of law...Section 5. The Congress shall have power to enforce,
by appropriate legislation, the provision of this article»
* 162. However, when a
state court considers and refuses defences based on lack of jurisdiction or
inadequate notice, the recognizing court is precluded from relitigating these
issues. Gary B. Born, International Civil Litigation in US Courts-Third
Edition, 1996, p. 938
* 163. Taylor Von Mehren,
Recognition and Enforcement of Foreign Judgments - General Theory and The
Role of Jurisdictional Requirements, Collected Courses of The Hague
Academy of International Law, 1981, p. 93
* 164. Gary B. Born,
International Civil Litigation in US Courts-Third Edition, 1996, p.
938
* 165. 296 US. 268, 276-77
(1935)
* 166. Morguard Investments
Ltd v. De Savoye, 1990
* 167. The Brussels Regime
is a set of rules regulating the allocation of jurisdiction in international
legal disputes of a civil or commercial nature involving persons resident in a
member state of the European Union (EU). It has detailed rules assigning
jurisdiction for the dispute to be heard, and it governs the recognition and
enforcement of foreign judgements.
* 168. Alan Reed,
Anglo-American perspectives on Private International Law,
* 169. Robert C. Reuland,
The Recognition and Enforcement of Judgments in The European Community: The
Twenty-Fifth Anniversary of The Brussels Convention, Michigan Journal of
International Law, 1993 at
www.westlaw.com.
* 170. All three legal
instruments are broadly similar in content, but there are some differences. In
general, it is the domicile of the defendant that determines which of these
instruments applies in a given case. The Brussels I Regulation is applicable
where the defendant is domiciled in a member state of the European Union,
except for Denmark. The Brussels Convention is applicable where the defendant
is domiciled in Denmark. The Lugano Convention is applicable when the defendant
is domiciled in Iceland, Norway, or Switzerland. Where the recognition or
enforcement of a foreign judgement is concerned, the applicable instrument is
determined in analogous fashion by the country of origin of the judgement.
* 171. The original member
states are Belgium, West Germany, France, Italy, Luxembourg, and the
Netherlands.
* 172. Pamela Bergman,
Recognition and Enforcement of Matrimonial Judgments Decrees and Orders in
the United States and Foreign Countries, at
www.nicholslaw/CM/Articles/Recognition-And-Enforcement-Of-Matrimonials-Judgments.Pdf,
See also Andreas F. Lowenfeld, International Litigation and Arbitration,
Second Edition, American Casebook Series, 2002, p.438
* 173. Robert C. Reuland,
The Recognition and Enforcement of Judgments in The European Community: The
Twenty-Fifth Anniversary of The Brussels Convention, Michigan Journal of
International Law, 1993 at
www.westlaw.com. See also Andreas
F. Lowenfeld, International Litigation and Arbitration, Second
Edition, American Casebook Series, 2002, p.438. It is important to note that
only the courts of each member state may ask the European Court of Justice to
issue interpretative rulings on the Brussels Convention
* 174. Robert C. Reuland,
The Recognition and Enforcement of Judgments in The European Community: The
Twenty-Fifth Anniversary of The Brussels Convention, Michigan Journal of
International Law, 1993 at
www.westlaw.com.
* 175. Today, only thress
states are members of the EFTA. Those states are : Norway, Switzerland and
Iceland.
* 176. P. Jenard & G.
Möller, Report on the Convention on Jurisdiction and Enforcement of
Judgments in Civil and Commercial Matters done at Lugano on 16 September 1988,
1990 O.J (C 189).
* 177. Member states of the
European Free Trade Association at that time are: Austria, Finland, Iceland,
Norway, Sweden and Switzerland. «The history of the Lugano Convention
begins in 1973 when Sweden first indicated its interest in some form of
agreement with the EC for the recognition of judgments. Little happened until
1981 when Switzerland expressed similar interest. A draft convention was
produced relatively quickly after preparatory proceedings commenced in 1985,
and the convention was opened for signature following a diplomatic
conference...» See Robert C. Reuland, The Recognition and Enforcement
of Judgments in The European Community: The Twenty-Fifth Anniversary of The
Brussels Convention, Michigan Journal of International Law, 1993 at
www.westlaw.com.
* 178. The Brussels Regulation
will be discussed later.
* 179. See New Lugano
Convention at
http://ec.europa.eu
* 180. Id.
* 181. Id.
* 182. The same article continues by
stating that «2. However, this Convention shall in any event be applied:
(a) in matters of jurisdiction, where the defendant is domiciled in the
territory of a State where this Convention but not an instrument referred to in
paragraph 1 of this Article applies, or where Articles 22 or 23 of this
Convention confer jurisdiction on the courts of such a State; (b) in relation
to lis pendens or to related actions as provided for in Articles 27 and 28,
when proceedings are instituted in a State where the Convention but not an
instrument referred to in paragraph 1 of this Article applies and in a State
where this Convention as well as an instrument referred to in paragraph 1 of
this Article apply; (c) in matters of recognition and enforcement, where either
the State of origin or the State addressed is not applying an instrument
referred to in paragraph 1 of this Article.
3. In addition to the grounds provided for in Title III,
recognition or enforcement may be refused if the ground of jurisdiction on
which the judgment has been based differs from that resulting from this
Convention and recognition or enforcement is sought against a party who is
domiciled in a State where this Convention but not an instrument referred to in
paragraph 1 of this Article applies, unless the judgment may otherwise be
recognised or enforced under any rule of law in the State addressed.
* 183. Andreas F.
Lowenfeld, International Litigation and Arbitration-Second Edition,
American Casebook series, ST.PAUL, MINN., 2002, p. 472.
* 184. Janet Walker,
Private International Law, Cases and Materials, 2004, p.42
* 185. Andreas F.
Lowenfeld, International Litigation and Arbitration-Second Edition,
American Casebook series, ST.PAUL, MINN., 2002, p. 472.
* 186. It is important to
point out the Brussels Regulation is directly applicable to all EU member
states except for Denmark which has not opted into the Regulation. Therefore,
whenever a judgment from Denmark is implicated, the Brussels Convention is
applicable either for the Danish courts or for other European Countries.
* 187. Brandon B. Danford,
The Enforcement Of Foreign Money Judgments in the Unites States and Europe:
How Can We Achieve a Comprehensive Treaty?, The Review of Litigation,
2004, p. 414
* 188. Jenard, Council
Report on the Convention on Jurisdiction and Enforcement of Judgments in Civil
and Commercial Matters, (1979) O.J C59/1,3 (5 Mar.)
* 189. Friedrich K.
Juenger, A Hague Judgments Convention?, 24 BROOK. J. INT'L. L, 111,
116 (1998)
* 190. Brandon B. Danford,
The Enforcement of Foreign Money Judgments in The United States and
Europe : How to Achieve a Comprehensive Treaty ?, The Review of
Litigation; Spring 2004, Academic Research Library, p. 390
* 191. Bartlett, Full
Faith and Credit Comes to the Common Market: An Analysis of the Convention on
Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters,
24 International & Comparative L.Q (1975)
* 192. Brandon B. Danford,
The Enforcement Of Foreign Money Judgments in the Unites States and Europe:
How Can We Achieve a Comprehensive Treaty?, The Review of Litigation,
2004, p. 391-392
* 193. Alan Reed,
Anglo-American perspectives on Private International Law,
* 194. It was argued that
the rational appeared to be not to make it easier to enforce judgments which
were rendered on the basis of an exorbitant jurisdiction by a member state, but
to treat the whole subject as one of for action by the EU as a whole and not by
individual member states. Andreas F. Lowenfeld, International Litigation
and Arbitration-Second Edition, American Casebook series, ST.PAUL, MINN.,
2002, p. 474.
* 195. Article 72 of the
Brussels Regulation provides «This Regulation shall not affect agreements
by which Member States undertook, prior the entry into force of this Regulation
pursuant to Article 59 of the Brussels Convention, not to recognize judgments
given, in particular in other Contracting States to that Convention, against
defendants domiciled or habitually resident in a third country where, in cases
provided for in Article 4 of that Convention, the judgment could only be
founded on a ground of jurisdiction specified in the second paragraph of
Article 3 of that Convention».
* 196. Sean D. Murphy,
Negotiation of A Convention On Jurisdiction and Enforcement of Judgments,
American Journal of International Law, 2001 at
www.westlaw.com.
* 197. The Hague Convention
on the Recognition and Enforcement of foreign judgments in Civil and Commercial
Matters concluded on February 1, 1971 and entered into force on August 20,
1979, see
www.hcch.net.
* 198. Eric B. Fastiff,
The Proposed Hague Convention on the Recognition and Enforcement of Civil
and Commercial Judgments: A Solution to Butch Reynolds's Jurisdiction and
Enforcement Problems, Cornell International Law Journal, 1995 available at
www.westlaw.com
* 199. The 1971 Hague
Convention on Judgments Recognition was signed by Cyprus, the Netherlands,
Portugal and Kuwait.
* 200. The 1971 Hague
Convention is considered as a «convention single» and that by
defining the conditions in which contracting states would recognize judgments
rendered by member states' courts. See Peter Nygh, The Preliminary Draft
Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial
Matters, International Conflict of Laws for the Third Millennium - Essays
in Honor of Friedrich K. Juenger, Edited by Patrick J. Brochers and Joachim
Zekoll, 2000, p.261
* 201. It is important to
point out that even though the convention addressed only question of indirect
jurisdiction, a protocol, Supplementary Protocol to the Hague Convention on the
Recognition and Enforcement of Foreign Judgments in Civil and Commercial
Matters signed in 1971, eliminated exorbitant bases of jurisdiction, However,
member states remain free to regulate bases of direct jurisdiction i.e. the
conditions under which a court assumes jurisdiction. See Friedrich K. Juenger,
A Hague Judgments Convention? Brooklyn Journal of International Law,
1998 available at
www.westlaw.com; see also Peter
Nygh, The Preliminary Draft Hague Convention on Jurisdiction and Foreign
Judgments in Civil and Commercial Matters, International Conflict of Laws
for the Third Millennium - Essays in Honor of Friedrich K. Juenger, Edited by
Patrick J. Brochers and Joachim Zekoll, 2000, p.262
* 202. Peter Nygh, The
Preliminary Draft Hague Convention on Jurisdiction and Foreign Judgments in
Civil and Commercial Matters, International Conflict of Laws for the Third
Millennium - Essays in Honor of Friedrich K. Juenger, Edited by Patrick J.
Brochers and Joachim Zekoll, 2000, p.261
* 203. J. Noelle Hicks,
Andrew P. Vance Memorial Writing Competition Winner Facilitating
International Trade: The U.S. Needs Federal Legislation Governing the
Enforcement of Foreign Judgments, Brooklyn Journal of International Law,
2002 available at
www.westlaw.com.
* 204. Roland A. Brand,
Enforcement of Foreign Money-Judgments in the United States: In Search of
Uniformity and International Acceptance, Notre Dame Law Review, 1991
available at
www.westlaw.com.
* 205. Catherine
Kessedjian, Remarks, Proceedings of the 76th Annual Meeting of The American
Law Institute, 76 A.L.I. PROC.465, 1999
* 206. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement Into U.S International and Enforcement Law, Georgetown Journal
of International Law, 2004, p.295 available at
www.westlaw.com.
* 207. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement Into U.S International and Enforcement Law, Georgetown Journal
of International Law, 2004, p.295 available at
www.westlaw.com.
* 208. Stephen B. Burbank,
Jurisdictional Equilibration, the Proposed Hague Convention and Progress in
National Law, American Journal Comparative Law, 2001 available at
www.westlaw.com.
* 209. Masato Dagauchi,
The Hague Draft Convention on Jurisdiction and Foreign Judgments in Civil
and Commercial Matters from a Perspective of Japan, Japanese yearbook of
Private International Law, 2001, p. 83.
* 210. Id, p. 85
* 211. Andrea Schulz,
The 2005 Hague Convention on Choice of Court Clauses, ILSA Journal of
International & Comparative law, Vol. 12:433, 2006, p. 434
* 212. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement Into U.S International and Enforcement Law, Georgetown Journal
of International Law, 2004, p.295 available at
www.westlaw.com.
* 213. Brandon B. Danford,
The Enforcement Of Foreign Money Judgments in the Unites States and Europe:
How Can We Achieve a Comprehensive Treaty?, The Review of Litigation,
2004, p. 414; see also Peter Nygh, The Preliminary Draft Hague Convention
on Jurisdiction and Foreign Judgments in Civil and Commercial Matters,
International Conflict of Laws for the Third Millennium - Essays in Honor
of Friedrich K. Juenger, Edited by Patrick J. Brochers and Joachim Zekoll,
2000, p.263 where he explains the differences between common law legal
tradition and civil law legal tradition and how those differences made
obstacles that stood in the way of creating a global judgments convention.
* 214. Trevor Hertley and
Masato Dogauchi, Convention of 30 June 2005 on Choice of Court Agreements -
Explanatory Report, available at
www.hcch.net
* 215. Andrea Schulz,
The 2005 Hague Convention on Choice of Court Clauses, ILSA Journal of
International & Comparative law, Vol. 12:433, 2006, p. 435
* 216. Trevor Hertley and
Masato Dogauchi, Convention of 30 June 2005 on Choice of Court Agreements -
Explanatory Report, available at
www.hcch.net
* 217. Andrea Schulz,
The 2005 Hague Convention on Choice of Court Clauses, ILSA Journal of
International & Comparative law, Vol. 12:433, 2006, p. 435. However, no
state has already signed or ratified it; see www.hcch.net
* 218. H. Scott Fairley and
John Archibald, After the Hague: Some Thoughts on the Impact on Canadian
Law of the Convention on Choice of Court Agreements, ISLA Journal of
International & Comparative Law, Vol. 12:417, 2006, p. 418-423
* 219. Article 4 of the
Hague Convention on Choice of Court Agreement available at
www.hcch.net
* 220. The article 22 of
the convention, entitled reciprocal declarations of non-exclusive choice of
courts agreements, provides «1. A contracting state may declare that its
courts will recognize and enforce judgments given by courts of another
Contracting States designated in a choice of court agreement concluded by two
or more parties that meets the requirement of the article 3 paragraph c), and
designates, for the purpose of deciding disputes which have arisen or may arise
in connection with a particular legal relationship, a court or courts of one or
more Contracting States (a non-exclusive choice of court agreement. 2. Where
recognition or enforcement of a judgment given in a contracting state that had
made such a declaration, the judgment shall be recognized and enforced under
this conventon...»
* 221. H. Scott Fairley
& John Archibald, After The Hague: Some Thoughts on the Impact of
Canadian Law of the Convention on Choice of Court Agreements, ILSA Journal
of International & Comparative law Vol. 12:417, 2006, p. 417
* 222. Antonin I.
Pribetic, The Hague Convention On Choice Of Court Agreements, the
Globetrotter, V.10, No 1
* 223. H. Scott Fairley and
John Archibald, After the Hague: Some Thoughts on the Impact on Canadian
Law of the Convention on Choice of Court Agreements, ISLA Journal of
International & Comparative Law, Vol. 12:417, 2006, p. 427
* 224. Preamble of the
Convention on Choice of Court Agreements concluded June 30, 2005 available at
www.hcch.net
* 225. Andrea Schulz,
The 2005 Hague Convention on Choice of Court Clauses, ILSA Journal of
International & Comparative law, Vol. 12:433, 2006, p. 435
* 226. Antonin I.
Pribetic, The Hague Convention On Choice Of Court Agreements, the
Globetrotter, V.10, No 1
* 227. H. Scott Fairley
& John Archibald, After The Hague: Some Thoughts on the Impact of
Canadian Law of the Convention on Choice of Court Agreements, ILSA Journal
of International & Comparative law Vol. 12:417, 2006, p. 427
* 228. Sami Bostanji,
La Nation de Réciprocité Dans les Relations Privées
Internationales - Réflexions à la Lumière du Nouveau Code
Tunisien de Droit International Privé, Le Code Tunisien de Droit
International Privé: Deux Ans Après, FSJPST, 19/04/2000, CPU,
2003, p. 87
* 229. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 314
* 230. Volker Behr,
Enforcement of United States Money Judgments in Germany, Journal Law
of Commerce, 1994 available at
www.westlaw.com
* 231. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 313
* 232. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 314
* 233. Louisa B. Child,
Shaky Foundation: Criticism of Reciprocity and the Distinction Between
Public and Private Law, International Law and Politics, Vol. 38:221, 2006
p. 223 available at
www.expresso.com
* 234. The American Law
Institute is one of the oldest and venerated private institutions in the United
States. It was established in 1932 in order to promote the clarification and
simplification of the law and its better adaptation to social needs, and to
secure the better administration of justice. Katherine R. Miller, Playground
Politics: Assessing the Wisdom of Writing a Reciprocity Requirement into U.S
International Recognition and Enforcement Law, Georgetown Journal of
International Law, winter 2004, p. 262 available at
www.westlaw.com.
* 235. Franklin O. Ballard,
Turnabout Is Fair Play: Why a Reciprocity Requirement Should Be Included in
the American Law Institute's Federal Statute, Houston Journal of
International Law, Vol 28:1, 2006, p.200
* 236. Eugene E. Scoles,
Conflict of Laws - Third Edition, Hornbook Series, ST. PAUL, MINN.,
2000, p. 1188
* 237. Russell J.
Weintraub, How Substantial Is Our Need For a Judgments-Recognition
Convention And What Should We Bargain Away to Get It?, Brooklyn Journal of
International Law, 1998, p. 176
* 238. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p245 available at
www.westlaw.com.
* 239. Hilton v. Guyot,
C.J. Fuller, Dissent; Andreas F. Lowenfeld, International Litigation and
Arbitration - Second Edition, American Casebook Series, 2002 p.401-404
* 240. Hilton v. Guyot, 159
U.S.
* 241. Id.
* 242. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 314
* 243. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p 249
* 244. Willis L. M.
Reese, The Status in this Country of Judgments Rendered Abroad, 50
COLUM. L. REV. 783, 783 (1950).Rees, p. 792
* 245. Hilton v. Guyot,
C.J. Fuller,Dissent; Andreas F. Lowenfeld, International Litigation and
Arbitration - Second Edition, American Casebook Series, 2002 p.401-404
* 246. Id.
* 247. Hilton v. Guyot,
C.J. Fuller,Dissent; Id p.401-404
* 248. Id, «the
subject of the suits were commercial transactions having their origins and
partly performed in France under contract there made and alleged to be modified
by the dealing of the parties there...the courts were competent and they
[Plaintiffs] took the chances of a decision in their favor. As traders in
France they were under the protection of its law and bound by its laws...the
fact that they were Americans and the opposite parties were citizens of France
is immaterial...»
* 249. Id
* 250. Chief Justice Fuller
wrote that » Although no special ground exists for impeaching the original
justice of a judgment, such as want of jurisdiction or fraud, the right to
retry the merits of the original cause ...should be accorded in every suit on
judgments recovered where our own judgments are not given full effect, on that
ground [reciprocity] merely. I cannot yield my assent to the proposition that,
because by legislation and judicial decision in France that effect is not there
given to judgments recovered in this country which, according to our
jurisprudence, we think should be given to judgments wherever recovered
(subject, of course, to the recognized exceptions), therefore we should pursue
the same line of conduct as respects the judgments of French tribunals. The
application of the doctrine of res judicata does not rest in discretion; and it
is for the government, and not for its courts, to adopt the principle of
retorsion, if deemed under any circumstances desirable or necessary».
Id
* 251. ALI's Proposed
Federal Statute, p. 2
* 252. William G. Southard,
The Reciprocity Rule and Enforcement of Foreign Judgments, Columbia
Journal of Transnational Law, 16:327, 1977, p. 328 available at
www.heinonline.com
* 253. Johnston v.
Compagnie Generale Transatlantique, 152 N.E. 121, 123 (N.Y. 1926).
* 254. Id
* 255. Id
* 256. Id
* 257. Id
* 258. Andreas F.
Lowenfeld, International Litigation and Arbitration, American Casebook
Series, Second edition, ST.PAUL, MINN., 2002, p.408.
* 259. Johnston v.
Compagnie Generale Transatlantique, 152 N.E. 121, 123 (N.Y. 1926)..
* 260. Id
* 261. J. Noelle Hicks,
Facilitating International Trade: The U.S. Needs Federal Legislation
Governing the Enforcement of Foreign Judgments, Brookline Journal of
International Law, 2002.
* 262. Note that state
courts are bound by Supreme Court's decision and federal courts' decision
whenever those decisions are governed by federal law which should be respected
by all courts in the United States. Outside this limited sphere, state courts
and legislators are free to choose their own policies.
* 263. 28 U.S.C section1331
(1994).
* 264. Id
* 265. Swift v. Tyson US SC
1842,
* 266. Luther L. McDougal,
Robert L. Felix, Ralph V. Whitten, American Conflicts Law,
Transnational Publishers, 5th edition, p218
* 267. American Law
Institute, Reporter's note 2, p. 99
* 268. However, it was
argued that even though federal courts were required to apply reciprocity as
part of federal common law, federal courts showed reluctance to use the
reciprocity defence as required by the Supreme Court in Hilton. In fact, except
the Hilton case, reciprocity has never been used as a sole argument to reject
the recognition or enforcement of foreign judgments. See William G. Southard,
Reciprocity Rule and Enforcement of Foreign Judgments, Columbia
Journal of Transnational Law, 1977, p,328.
* 269. When federal courts
hear a dispute between two parties from different states or different countries
and the amount is over $75.000, it is exercising a diversity jurisdiction over
the parties.
* 270. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p.251 available at
www.westlaw.com.
* 271. Erie Railroad Co. v.
Tompkins
* 272. William G. Southard,
Reciprocity Rule and Enforcement of Foreign Judgments, Columbia
Journal of Transnational Law, 1977, p,328.
* 273. Id, p.342
* 274. Id
* 275. Id
* 276. The court held that
«the Hilton decision was a pre-Erie R.R. Co. v. Tompkins case and it has
never been suggested that it was constitutionally dictated and therefore biding
on states. It is clear...that the law governing the enforceability of foreign
judgments by federal courts is the law of the state where the court is
located.»
* 277. Id. This was also
the decision of the Arkansas federal court in Toronto-Dominion Bank v. Hall
where the court had followed the approach of the Third Circuit Court of Appeal
in Somportex and held on similar grounds to Somportex to not impose reciprocity
as a condition to the enforcement of a foreign judgment. William G. Southard,
The Reciprocity Rule and Enforcement of Foreign Judgments, Columbia
Journal of Transnational Law, p.343
* 278. Id, p 341
* 279. See Prefatory Notes
to Uniform Act, 13 U.L.A 261 (1991)
* 280. Uniform Foreign
Money Judgements Recognition Act section2: Applicability
* 281. Id section3 :
Recognition and Enforcement
* 282. Id section4 :
Grounds for Non-recognition : grounds that mandate non-recognition (i.
judgment was rendered under a system failing to support impartial tribunal or
due process, ii. Luck of personnel or subject-matter jurisdiction)
discretionary grounds (i. inadequate notice, ii. Fraud, iii. Repugnance to
public policy, iv. Conflict with another final judgment or forum selection
agreement, v. inconvenient forum)
* 283. The Uniform Act
govern only final money judgments thus are excluded from the scope of the
Uniform Act judgments that are not final and judgments for support in
matrimonial matters. Are excluded also judgments for taxes fines or penalties.
See Uniform Act.
* 284. Juan Carlos
Martinez, Recognizing and Enforcing Foreign Nation Judgments: The United
States and Europe Compared and Contrasted--A Call For Revised Legislation in
Florida, Journal of Transnational Law & Policy, Spring, 1995, p.54
* 285. Id
* 286. The Uniform Act
prefatory note, see Kathleen Patchel, Study Report on Possible Amendment of
the Uniform Foreign Money Judgments Recognition Act, 2003, p. 1 available
at ww.nccusl.org
* 287. A new act was
adopted and approved in July 2005 under the name of Uniform Foreign-Country
Money Judgments Recognition Act. See ww.nccusl.org
* 288. See Uniform Act,
Table of Jurisdiction Wherein Act Has Been Adopted.
* 289. The ALI, Recognition
and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute:
Proposed Final Draft April 11, 2005, Comment a, p.93
* 290. The six states are:
Florida, Idaho, Maine, North Carolina, Ohio and Texas, Id, Reporters' notes 3,
p. 99
* 291. Those two states are
Massachusetts and Gorgia. Id
* 292. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p245, available at
www.westlaw.com.
* 293. Charles W. Wolfram,
Bismarck's Sausages and the ALI's Restatements, 26 Hofstra L. Rev.
817, 818 (1998)
* 294. Jonathan R. Mercy,
The Transformation of The American Law Institute, 61 GEO, Wash, L. Rev
1212, 1216 (1992-1993)
* 295. Restatement (Second)
of Conflict of Laws section98. (1988)
* 296. section 98 comment
f. Reciprocity, p. 107 . See also Reporters' Notes,
Comment f, where it was stated that «it can be said that the
great majority of the United States Courts have rejected the doctrine of
Reciprocity» id. p. 108
* 297. Eugene F. Scoles,
Conflicts of Law, Third edition, p. 1193
* 298. A foreign nation
judgment will not be recognized ii the United States unless the American court
is convinced that the foreign court had jurisdiction and that "there has been
opportunity for a full and fair trial abroad before a court of competent
jurisdiction, conducting the trial upon regular proceedings, after due citation
or voluntary appearance of the defendant, and under a system of jurisprudence
likely to secure an impartial administration of justice between the citizens of
its own country and those of other countries, and there is nothing to show
either prejudice in the court, or in the system of laws under which it is
sitting, or fraud in procuring the judgment...." Hilton v. Guyot, 159 U.S. 113,
202 (1895). Supra note 62, Comment c, p. 106
* 299. Restatement (Second)
of Conflict of Laws section98. (1988).. Comment g, p. 107
* 300. Restatement (Second)
of Conflict of Laws section98. (1988). I twas argued that this
«limitation...expresses a certain uneasiness about automatic recognition
of foreign nation
* 301. Supra Note 64,
p1994, section24.37
* 302. Restatement (Third)
of the Foreign Relation Law of the United States (1987) section 481 (1).
section 481 (2) adds that «a judgment entitled to recognition under
subsection (1) may be enforced...in accordance with the procedure of
enforcement of judgments where enforcement is sought»
* 303. Id. section 482.
Grounds For Nonrecognition Of Foreign Judgments states that «
(1) A court in the United States may not recognize a judgment
of the court of a foreign state if:
(a) the judgment was rendered under a judicial system that
does not provide impartial tribunals or procedures compatible with due process
of law; or
(b) the court that rendered the judgment did not have
jurisdiction over the defendant in accordance with the law of the rendering
state and with the rules set forth in section 421.
(2) A court in the United States need not recognize a judgment
of the court of a foreign state if:
(a) the court that rendered the judgment did not have
jurisdiction of the subject matter of the action;
(b) the defendant did not receive notice of the proceedings in
sufficient time to enable him to defend;
(c) the judgment was obtained by fraud;
(d) the cause of action on which the judgment was based, or
the judgment itself, is repugnant to
the public policy of the United States or of the State where
recognition is sought;
(e) the judgment conflicts with another final judgment that is
entitled to recognition; or
(f) the proceeding in the foreign court was contrary to an
agreement between the parties to submit the controversy on which the judgment
is based to another forum.
* 304. Supra Note 70,
section 481, Reporters' Note 1. Reciprocity not required, p. 589
* 305. section 1 of the
Uniform act states that «foreign judgment means any judgment of a foreign
state granting or denying recovery of a sum of money other than judgment for
taxes, a fine or other penalties, or a judgment for support in matrimonial or
family matters». The section 481 of the Restatement Third states that
«a final judgment of a court of a foreign state granting or denying
recovery of a sum of money, establishing or confirming the status of a person,
or determining interest in property, is conclusive between the parties and is
entitled recognition in the United States
* 306. Matthew H. Adler,
If We Build It, Will They Come?--The Need For a Multilateral Convention on
The Recognition and Enforcement of Civil Monetary Judgements, Law and
Policy in International Business, 1994, www.westlaw.com
* 307. Katherine R.
Miller, Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p245, available at
www.westlaw.com.
* 308. Susan L. Stevens,
Commanding International Judicial Respect: Reciprocity and Recognition and
Enforcement of Foreign Judgments, Hastings International & Comparative
Law Review 116, 2002-2003, p115
* 309. Ronald A. Brand,
Enforcement of Judgments in the United States and Europe, Journal of
Law and Commerce, spring 1994,
www.westlaw.com
* 310. Matthew H. Adler,
If We Build It, Will They Come?--The Need For a Multilateral Convention on
The Recognition and Enforcement of Civil Monetary Judgements, Law and
Policy in International Business, 1994,
www.westlaw.com
* 311. Matthew H. Adler,
Id, citing Arthur Von Mehren, Recognition and Enforcement of
Foreign Judgments - General Theory and the Role of Jurisdictional
Requirements,
* 312. Gary B. Born,
International Civil Litigation In US Courts, third edition, 1996, p955
* 313 Roland A. Brand,
Enforcement of Judgments in the United States and Europe, Journal of
Law and Commerce, spring 1994,
www.westlaw.com
* 314. Remember that only 31
states enacted a version of the Uniform act.
* 315. William G. Southard,
Reciprocity Rule and Enforcement of Foreign Judgments, Columbia
Journal of Transnational Law, 1977, p,342
* 316. ALI's Proposed
Federal Law, Introduction: National Law in The International Arena, p.1
* 317. Susan L. Stevens,
Commanding International Judicial Respect: Reciprocity and Recognition and
Enforcement of Foreign Judgments, Hastings International & Comparative
Law Review 116, 2002-2003, p115
* 318. Olga Vorobeva,
Reciprocity in Recognition and Enforcement of Foreign Judgments in Russia
and the United States, Russian in the International Law Context: Private
International Law, Cultural heritage, Intellectual Property, Harmonization Law,
2004 Berliner Wessendhafts-verlag, p.254
* 319. Id. In order to show
how this uniformity may make confusion for foreigner, the writer added
that» for example, in the same publication providing overview of
recognition of foreign judgments in different countries, the chapter in
American law and practice explains that reciprocity is not required in the
majority of states, while a chapter on a French law states although a number of
foreign jurisdictions, notably the United States, impose a requirement of
reciprocity for enforcement of foreign judgment, French law does not». Id
p.254-255
* 320. Susan L. Stevens,
Commanding International Judicial Respect: Reciprocity and Recognition and
Enforcement of Foreign Judgments, Hastings International & Comparative
Law Review 116, 2002-2003, p115
* 321. Matthew H. Adler,
If We Build It, Will They Come?--The Need For a Multilateral Convention on
The Recognition and Enforcement of Civil Monetary Judgements, Law and
Policy in International Business, 1994, www.westlaw.com
* 322. Violeta I. Balan,
Recognition and Enforcement of Foreign Judgments in the United States: the
Ness For Federal Legislation, John Marshall Law Review, 2003 available at
www.westlaw.com
* 323. William G.
Southard, Reciprocity Rule and Enforcement of Foreign Judgments,
Columbia Journal of Transnational Law, 1977, p,328.
* 324. Id.p.335
* 325. Ronald A. Brand,
Enforcement of Judgments in the United States and Europe, Journal of
Law and Commerce, spring 1994, www.westlaw.com
* 326. Id.
* 327. Id.
* 328. Ronald B. Brand,
Enforcement of Judgments In the United States and Europe, Journal of
Law and Commerce, 1994 available at
www.westlaw.com.
* 329. Id.
* 330. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p262 available at
www.westlaw.com; see also Luther L.
McDougal, III, Robert L. Felix and Ralph U. Whitten, American Conflicts law
- Fifth Edition, Transnational Publishers, Inc, 2001 p. 323
* 331. Susan L. Stevens,
Commending International Judicial Respect: Reciprocity and the Recognition
and Enforcement of Foreign Judgments, 26 Hasting International and
Comparative Law Review, 2002-2003, p.130 available at
www.heinonline.com.
* 332. Linda J. Silberman
and Andreas F. Lowenfeld, A Different Challenge for the ALI: Herein of
Foreign Country Judgments, An International Treaty and An American Statute,
Indian Law Journal, 2000 available at
www.weslaw.com.
* 333. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005),
available at www.ali.org
* 334. Franklin O. Ballard,
Turnabout Is Fair Play: Why a Reciprocity Requirement Should Be Included in
the American Law Institute's Federal Statute, Houston Journal of
International Law, Vol 28:1, 2006, p.212
* 335. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005),
available at www.ali.org
* 336. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005),
available at www.ali.org
* 337. Id, section
7 - Reporters' Notes, 1. Rationale, p. 97 available at www.ali.org
* 338. The reciprocity
requirement appears in the section2 entitled «Recognition and Enforcement
Generally» where «judgments for taxes, fine, and penalties may, but
need not, be recognized and enforced provided they meet the criteria of this
Act, including reciprocity in accordance with section7». It appears also
in the section3 entitled «Effect of Foreign Judgment in the United
States» which allows the recognition and enforcement of default judgments
under the fulfilment of some conditions. At the end of the section3 (b), it is
states that «the party resisting recognition or enforcement may raise the
defences set out in sectionsection5 [related to the non-recognition of foreign
judgment] and 7 [related to the fulfilment of the condition of
reciprocity». The third appearance in that is the most important because
it established the principle of reciprocity in the act (section7). The last
appearance of the reciprocity requirement is in the section10 entitled
«Registration of Foreign Money Judgments in Federal Courts». The
section10 provides in its first paragraph (a) that «Except as provided
hereafter, a foreign judgment [ issued by the court of a state that has entered
into an agreement with the United States for reciprocal recognition of
judgments pursuant to section7 (e) of this Act] may be registered in accordance
with this section in any United States court for a district in which the
judgment debtor has property when the debtor (if an individual) is domiciled in
the state or (if a judicial entity) has an establishment in the
state».
* 339. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section7
(a) - Reciprocal Recognition and Enforcement of Foreign Judgments,
available at www.ali.org
* 340. In this context,
there are no similar cases, except Hilton, where a court in the United States
has refused to grant recognition and enforcement of foreign judgment on the
sole ground of reciprocity. See William G. Southard, The Reciprocity Rule
and Enforcement of Foreign Judgments, Columbia Journal of Transnational
Law, 16:327 p. 335-344, where he argued that «Most importantly, this
author could find non case other than Hilton which denied conclusive
recognition to a foreign judgment solely on the ground of reciprocity
consideration». He continued by stating that «[courts] have
manifested no reluctance to use the rule when they are able to conclude that
the foreign forum would grant conclusive effect to American judicial
decisions...The rule is also often cited approvingly in instances where a court
rejects a foreign judgment on the basis of other aspects of the comity inquiry,
such as fraud, public policy or jurisdiction». To summarize, the author
concluded that «courts cite reciprocity rule approvingly only in instances
where it does not serve as the sole obstacle to recognition of foreign
judgments».
* 341. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p296 available at
w as ww.westlaw.com. The author states
«Indeed, even the now defunct Hilton decision does not establish a
precedent for such a far-reaching reciprocity doctrine, insofar as Hilton was
limited by dictum to actions where the judgment abroad was against a U.S.
citizen and in favour of a foreign plaintiff, whereas section 7 of the Act
applies to all foreign judgments irrespective of the nationality of the
parties.»
* 342. William G. Southard,
The Reciprocity Rule and Enforcement of Foreign Judgments, Columbia
Journal of Transnational Law, 16:327 p. 335-344,
* 343. It is important to
note that the question was raised during debates between the ALI's members, and
the solution appears to allow the use of foreign judgments as evidence, ALI's
minutes of Tuesday Morning Session, May 18, 2004 p, 146 available at
www.ali.org
* 344. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section
7 - Reporters' Notes, 4.Discretion to recognize judgments in absence of
reciprocity rejected, p. 100-101 available at www.ali.org
* 345. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section7
(b) - Reciprocal Recognition and Enforcement of Foreign Judgments,
available at www.ali.org
* 346. Peter Nygh, The
Preliminary Draft Hague Convention on Jurisdiction and Enforcement of Foreign
Judgments in Civil and Commercial Matters, International Conflict of Laws
for the Third Millennium - Essays in Honor of Friedrich K. Juenger,
Transnational Publishers, Inc. 2OOO, p.262-264
* 347. Peter Nygh, The
Preliminary Draft Hague Convention on Jurisdiction and Enforcement of Foreign
Judgments in Civil and Commercial Matters, International Conflict of Laws
for the Third Millennium - Essays in Honor of Friedrich K. Juenger,
Transnational Publishers, Inc. 2OOO, p.262-264
* 348. Olga Vorobeva,
Reciprocity in Recognition and Enforcement of foreign judgments in Russia
and the United States, Russia in the International Context: Private
International Law, Cultural Heritage, Intellectual Property, Harmonization
Laws, Berlin Wessenshafts-Verlag, Gmbh, 2004, p. 255
* 349. ALI Council Draft
No. 2 (September 30, 2002) & No. 3 (December 2, 2002), International
Jurisdiction and Judgments Project,
* 350. Olga Vorobeva,
Reciprocity in Recognition and Enforcement of foreign judgments in Russia
and the United States, Russia in the International Context: Private
International Law, Cultural Heritage, Intellectual Property, Harmonization
Laws, Berlin Wessenshafts-Verlag, Gmbh, 2004, p. 255
* 351. There were
considerable discussions concerning the issue of the burden of proof. Previous
drafts either required that the burden of proof shall be incumbent of the
judgment creditor, or should there an alternative and shifting the burden on
both the judgments creditors or judgments debtors. Finally it was agreed that
the burden should be incumbent on the judgment debtor.
* 352. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section7
(b) - Reciprocal Recognition and Enforcement of Foreign Judgments,
available at www.ali.org
* 353. Franklin O. Ballard,
Turnabout Is Fair Play: Why a Reciprocity Requirement Should Be Included in
the American Law Institute's Federal Statute, Houston Journal of
International Law, Vol 28:1, 2006, p.219.
* 354. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section
7 - Comments, f. Inquiry concerning comparable judgments, p. 96
available at www.ali.org
* 355. Olga Vorobeva,
Reciprocity in Recognition and Enforcement of foreign judgments in Russia
and the United States, Russia in the International Context: Private
International Law, Cultural Heritage, Intellectual Property, Harmonization
Laws, Berlin Wessenshafts-Verlag, Gmbh, 2004, p. 256
* 356. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section
7 - Comments, e. evidence of practice of courts in the state of origin,
p. 95 available at www.ali.org
* 357. Id.
* 358. With this regard the
last paragraph of section7 (c) states «the court may also take into
account the recognition practice of courts of the state of origin, including
practice with regard to judgments of other states».
* 359. Franklin O. Ballard,
Turnabout Is Fair Play: Why a Reciprocity Requirement Should Be Included in
the American Law Institute's Federal Statute, Houston Journal of
International Law, Vol 28:1, 2006, p.219.
* 360. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section
7 - Reporters' Notes, 1. Rationale, p. 97 available at www.ali.org
* 361. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p282 available at
w as ww.westlaw.com.
* 362. ALI Council Draft
No. 1, Jurisdiction and International Judgments Project, November 20,
2001, it was stated that «the Secretary of State is directed to maintain
and publish (i) a list of foreign states that accord recognition and
enforcement to judgments rendered in the United States; and (ii) a list of
foreign states that do not accord recognition and enforcement to judgments
rendered in the United States. A judgment rendered in a state on list (i) is
entitled recognition and enforcement in accordance with this Act, subject only
to the defences set out in subsections (a) and (b). A judgment rendered in a
state on list (ii) shall not be recognized and enforced in a court in the
United States.» See Susan L. Stevens, Commending International
Judicial Respect: Reciprocity and the Recognition and Enforcement of Foreign
Judgments, 26 Hasting International and Comparative Law Review, 2002-2003,
p.130 available at
www.heinonline.com.
* 363. Susan L. Stevens,
Commending International Judicial Respect: Reciprocity and the Recognition
and Enforcement of Foreign Judgments, 26 Hasting International and
Comparative Law Review, 2002-2003, p.134, available at
www.heinonline.com.
* 364. section 10 (a) reads
«[A] foreign judgment [issued by court of a state that has entered into an
agreement with the United States for reciprocal recognition of judgments
pursuant to section7(e) of this Act] may be registered in accordance with this
section in the United States...», See The American Law Institute,
Recognition and Enforcement of Foreign Judgments: Analysis and Proposal
Federal Statute - Proposed Final Draft (April 11, 2005), section 10 -
Registration of Foreign Money Judgments in Federal Courts, p. 118
available at www.ali.org
* 365. The reporters state
in their comments that «while the basis of this section is the
desirability of cooperation among courts in different countries, it is not
necessary for the court in the United States to determine whether the foreign
court would grant similar assistance to order s of courts in the United States.
However, subsections (a)(i) and (a)(ii) make clear that the authority granted
herein is dependent on a determination that the foreign judgment or expected
judgment is entitled to recognition and enforcement in the United States,
including the reciprocity requirement in section7». The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section
12. Provisional Measures in Aid of Foreign Proceedings - Comments,
e. Provisional remedies and reciprocity, p. 140 available at
www.ali.org
* 366. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section
7 - Comments, c. Agreements with foreign states, p. 94 available at
www.ali.org
* 367. Linda Silberman,
American Law Institute, 2004 Proceedings, Thursday Morning Session, May 18,
2004 available at www.ali.org
* 368. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement Into U.S. International Recognition and Enforcement Law,
Georgetown Journal of International Law, Vol. 35, 2004, p. 290 available
at
www.westlaw.org.
* 369. Franklin O. Ballard,
Turn About Is Fair Play: Why Reciprocity Requirement Should Be Included in
the American Law Institute Proposed Federal Statute, Houston Journal of
Law, Vol. 28:1, 2006, p. 233.
* 370. Id, p. 234.
* 371. Id.
* 372. Id, p. 236.
* 373. This doctrine allows
American courts can establish jurisdiction to hear a case on the ground of
continuous and systematic activities in the forum i.e. the merely doing
business or conducting operations otherwise unrelated to a lawsuit can
establish the American court jurisdiction to decide a case. See Brandon B.
Danford, The Enforcement Of Foreign Money Judgments in the Unites States
and Europe: How Can We Achieve a Comprehensive Treaty?, The Review of
Litigation, 2004, p. 408
* 374. American courts can
assume jurisdiction over a person bases solely upon his temporary presence in
the country. See Brandon B. Danford, The Enforcement Of Foreign Money
Judgments in the Unites States and Europe: How Can We Achieve a Comprehensive
Treaty?, The Review of Litigation, 2004, p. 409
* 375. Russell J.
Weintraub, How Substantial is Our Need For a Judgments-Recognition
Convention and What Should We Bargain To Get It ?, Brooklyn Journal
of International Law, 1998 available at
www.westlaw.com.
* 376. Recall the British
Protection of Trading Interest Act which allows recovering the non-compensatory
amount of damages. There is also a provision in Australian law (Foreign
Proceeding [Excess of Jurisdiction] Act, 1984, §§9 (1)(b)(ii) which
authorizes the recovery of an entire judgment paid on antitrust action where
the assumption of jurisdiction by the foreign court is «contrary to
international law or inconsistent with international comity or international
practice»; See Russell J. Weintraub, How Substantial is Our Need For a
Judgments-Recognition Convention and What Should We Bargain To Get
It ?, Brooklyn Journal of International Law, 1998 available at
www.westlaw.com.
* 377. The aim of this
survey is to determine «what practical obstacles exist to obtain
recognition of money judgments obtained in the United States». See The
Committee on Foreign and Comparative Law, Survey on Foreign Recognition of
U.S. Money Judgments,
* 378. The Committee on
Foreign and Comparative Law, Survey on Foreign Recognition of U.S. Money
Judgments,
* 379. With this respect,
note that the United States launched an attempt to enter into a bilateral
agreement on the recognition and enforcement of judgments with the United
Kingdom. This attempt consisted basically in protecting the US nationals from
exorbitant bases of jurisdiction in the United Kingdom. The negotiations had to
go through a long process and showed the difficulties that are inherent in the
development of a convention on the recognition and enforcement of foreign
judgments despite the fact that the two countries share the same legal
background and common law traditions. Although a draft had been initiated in
1976 and revised in 1979, the treaty was never signed. The non signature of the
treaty is due basically to differences and the distrust of the United Kingdom
of the American system and especially to the extraterritorial application of
American antitrust laws which is sometimes referred to them as «long arm
statutes» and the excessive amount of damages and the fear of British
insurance companies to see British courts compelled to recognize and enforce
American judgments based on unique and non-accepted American bases of
jurisdiction or which award shocking damages compensation.
* 380. «Under the
doctrine of Forum Non Cnoveniens, a court which otherwise has jurisdiction may
decline to hear the case because it believes that a better forum exists
elsewhere to hear the dispute». Brandon B. Danford, The Enforcement
Of Foreign Money Judgments in the Unites States and Europe: How Can We Achieve
a Comprehensive Treaty?, The Review of Litigation, 2004, p. 409, the same
author continues to conclude that «Continental legal system are typically
not friendly to this notion; thus, when Britain became contracting party to the
Brussels Convention, its courts had to give up the right to decline
jurisdiction pursuant to forum non conveniens. Id.
* 381. Matters related to
judicial jurisdiction are well rooted in jurisprudence of the Supreme Court of
the United States.
* 382. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, available at
www.westlaw.com
* 383. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004 available at
www.westlaw.com
* 384. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section7
(d) - Reciprocal Recognition and Enforcement of Foreign Judgments,
available at www.ali.org
* 385. ALI's minutes of
Tuesday Morning Session, May 18, 2004 p, 146 available at www.ali.org
* 386. Ali Mezghani,
Commentaires du Code de Droit International Privé, Tunis,
C.P.U, 1999, p. 205
* 387. Monia Ben
Jémia, L'Exequatur des Décisions Etrangères en
Matière de Statut Personnel, RTD 2000, p. 156
* 388. Article 18 of the
Tunisian Private International Law Code (TPILC), 1998 which states:
«Foreign decisions and judgments which become enforceable in Tunisia are
enforced in accordance with the Tunisian law without prejudice to the
reciprocity»
* 389. Ali Mezghani,
Faut-il Déjà Modifier Le Code De Droit International
Privé ?, Le Code Tunisien de Droit International Privé:
Deux Ans Après, FSJPST, 19/04/2000, CPU, 2003, p. 164
* 390. Ali Mezghani,
Commentaires du Code de Droit International Privé, Tunis,
C.P.U, 1999, p. 193, however, Tunisian courts are required to a minimum control
of the general or interne foreign competence which is limited to question of
the ability of the foreign to adjudicate a claim according to its applicable
law.
* 391. Imed Bejaoui, La
Règle De Réciprocité Dans Le Code Tunisien de Droit
International Privé, Mémoire Pour l'Obtention du
Mastère en Droit des Affaires, 2005-2006, p. 23-25
* 392. The American Law
Institute, Recognition and Enforcement of Foreign Judgments: Analysis and
Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section2
(a) -Recognition and Enforcement Generally, available at www.ali.org
* 393. There are also other
conditions provided by section5 «Nonrecognition of a Foreign
Judgment» and section6 «Bases of Jurisdiction Not Recognized or
Enforced»; see The American Law Institute, Recognition and Enforcement
of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final
Draft (April 11, 2005), available at www.ali.org
* 394. Sung Hoon Lee,
Comity and Reciprocity in Foreign Judgment Recognition, The Berkley
Electronic Press, 2005 available at
www.expresso.com,
* 395. Friedrich Juenger,
The Recognition of Money Judgements In Civil and Commercial Matters,
Selected Essays on the Conflict of Laws, p. 318 and 292
* 396. Richard W. Hulbert,
International Jurisdiction and Judgments Project - Motion to Delete the
Requirement of Reciprocity, May, 2004 available at
www.ali.org
* 397. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p. 293 available at
www.westlaw.com
* 398. Katherine R. Miller,
Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p. 315 available at
www.westlaw.com
* 399. William G. Southard,
The Reciprocity Rule and Enforcement of Foreign Judgments, Columbia
Journal of Transnational Law, 16:327, 1977, p. 355 available at
www.heinonline.com
* 400. Imed Bejaoui, La
Règle De Réciprocité Dans Le Code Tunisien de Droit
International Privé, Mémoire Pour l'Obtention du
Mastère en Droit des Affaires, FSJPST, 2005-2006, p. 23-25
* 401. Recall the fact of
Johnston v. Société Générale Transatlantique,
discussed above in the Part II, under the title «Rejecting of the
reciprocity requirement by State Courts: Johnston v. Compagnie
Générale Transatlantique»
* 402. Friedrich K.
Juenger, The recognition of Money Judgments in Civil and Commercial
Matters, in Selected Essays on the Conflict of Law, 2002, p.314
citing Paul Lagarde, La Réciprocité en Droit International
Privé, Collected Courses of The Hague Academy of Private
International Law, Tome 154 of the Collection, 1977 p. 142 and 195 giving the
example of a court decision from the Tunisian Supreme Court «La Court de
Cassation» of February 1, 1968.
* 403. Katherine R.
Miller, Playground Politics: Assessing the Wisdom of Writing a Reciprocity
Requirement into U.S International Recognition and Enforcement Law,
Georgetown Journal of International Law, winter 2004, p. 315 available at
www.westlaw.com
* 404. It is important to
point out in this context that these are not the only arguments against the
reciprocity, a huge number of pages were written with this concern, but I tried
to choose the most valuable one that shows the unsuitability of the proposed
reciprocity requirement in the landscape of the recognition and enforcement of
foreign judgments
* 405. Janet Walker,
The Better Part of Harmonizing Jurisdictional Law, Proceedings of the
96th Annual Meeting of the American Society of International Law,
March 2002, p. 343
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