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

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 2000^183(*). A «Regulation in the European Union is the equivalent of primary legislation^184(*)». 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 parliaments^185(*). This action has transformed the Convention into a binding legal instrument between the states that participated in the adoption of the Regulation^186(*).

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 costs^189(*), 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 clause^191(*)». 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 countries^193(*).

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 59^194(*) but without prejudice to the agreements established by the member states before the entry into force of the regulation^195(*).

* 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».