The role of the reciprocity requirement in the harmonization of standards for the recognition and enforcement of foreign judgments

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 EEC^171(*) 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, 1973^172(*).

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 Convention^173(*). 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 Convention^174(*).

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 Regulation^178(*). 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 Brussels^179(*). 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 States^181(*).

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.

* 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.