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

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 framework^215(*). 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 ratification^217(*). 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 courts^218(*). 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 agreements^220(*).

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 commerce^221(*)». It provides greater certainty and predictability for parties involved in business-to-business agreement and international litigation^222(*) and limits the negative impact of the unilateral liberalization of national rules on judgments recognition without reciprocal benefit from other countries^223(*). 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 agreements^225(*).

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 treaty^226(*). 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 equilibration^227(*)».

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 sovereignty^228(*).

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 judgments^229(*). 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 concept^230(*). 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.

* 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