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

II) The Restatements

As a part of its mission to promote uniformity within the United States in legal solution^292(*) 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 opinions^294(*).

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 reciprocity^296(*).

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 Hilton^298(*) the foreign judgment will be given the same degree of recognition as a sister state judgment without any other condition of reciprocity^299(*) «as far as the immediate parties and the underlying claim are concerned^300(*). 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 reciprocity^301(*).

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 recognition^303(*). 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 law^305(*).

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.

* 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