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

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 effect^279(*). 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 applicable^282(*). Despite its limited scope^283(*), Uniform Act treats foreign judgment as res judicata^284(*). 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 credit^285(*).

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 legislation^288(*). 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 reciprocity^289(*). Among those states, six authorize but do not require the court to deny recognition on the ground of lack of reciprocity^290(*). 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(*)

* 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