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

Section II - The Non-Recognition of American Judgments Abroad

Despite the liberal practice of foreign judgments recognition in the United States, American judgments are unlikely given effect when taken abroad. Some scholars affirm that uniformity and complexity of the American system is «the most significant problem which bars the enforcement of American judgments overseas^306(*). The lack of uniformity is due to the lack of a nation wide position on recognition and enforcement of foreign judgments especially with regards to reciprocity requirement as a ground for non recognition and enforcement of foreign judgments (Paragraph A) The complexity of the American system of recognition and enforcement of foreign judgments stems from the difficulty to prove that foreign country judgment can be enforced in the United States (Paragraph B).

Paragraph A - Refusal Due to the Lack of Uniformity with Regards to Reciprocity

It is easy for any reader who skims the American literature concerning the recognition and enforcement of foreign judgments to conclude that the system is uniform and provides a clear and comprehensive set of rules. However a thorough study of the American system, especially from a foreign point of view, reveals the disharmonies and idiosyncrasies in U.S international recognition and enforcement practice^307(*).

The lack of uniformity is due to the disparity between state courts and legislatures on whether to require reciprocity or not. This is actually the result of «the current system of handling cases on the basis of a state-by-state recognition and enforcement of foreign judgments system governed by state statute or common law»^308(*). The immediate result of such a system is the impossibility to discuss the current of recognition and enforcement system of the United States without constant reference to several exceptions^309(*).

With this concern, giving the fact that the United States is divided into fifty one states which have their own legal system, and in the absence of federal guidance on the matter, the American system is handled by fifty one different approaches to judgment recognition and enforcement. As a result, it is difficult to define a homogeneous American policy on recognition and enforcement of foreign judgments^310(*). For this reason, some American scholars confessed that «the lack of uniformity among the states is the most significant problem facing a litigant trying to enforce a U.S. judgment overseas.^311(*)»

In effect, despite an apparently uniform rule in the Restatements, and the Uniform Act - which reflect the rejection by a great majority of state and federal courts of reciprocity as a ground for non recognition - other common law decisions have refused to abandon reciprocity requirement and continue to require reciprocity as a precondition to give effect to judgments of other countries^312(*). Moreover, where certain states decided not to enact any version of the Uniform Act, other several states decided to reintroduce the reciprocity requirement within their version of the Uniform Act. In addition, even among states that decided to reintroduce the reciprocity requirement in their version of the Uniform Act, the form of reciprocity differs from one version to another. Where some states decided to reintroduce reciprocity as a discretionary ground for non recognition, some other states decided that the lack of reciprocity is enough to refuse the recognition and the enforcement of foreign judgments as a mandatory ground for non recognition^313(*).

In addition, another problem may appear which concerns states which did not enact any version of the Uniform Act^314(*), and which have not any case related to the recognition and enforcement of foreign judgments. For these states, it is difficult to predict what will be the response as regard to reciprocity. The question becomes more difficult if the case is brought before a federal court. The lack of uniformity and disparity between states' practices make it difficult to say what is the state applicable law since the law does not exist or unclear. Consequently, federal judge has to consider the reciprocity rule on its own merits^315(*). And whether the federal court will apply or not the reciprocity requirement as a precondition for recognition and enforcement of foreign judgments would depends on federal court circuits.

The drafters of the proposed federal law themselves confessed that «it would strike anyone strange to learn that a judgment of an English or German or Japanese court might be recognized and enforced in Arkansas, in Pennsylvania but not New Jersey».^316(*) This system of recognition and enforcement in the United States gives the international community a sense that its judgments will not be uniformly enforced across the United States and that the recognition and enforcement of their judgments can be accepted in one state but not in another. This fact of course gives less incentive to foreign countries to enforce American judgments.

With this respect, one scholar wrote that «from a foreign country perspective, the state-by-state system is not a system at all because it provides no unified procedure indicating under what conditions foreign country judgments will be recognized and enforced»^317(*). When the question comes to the issue of reciprocity, courts usually look at the position of the foreign country as a whole rather than its various parts^318(*). This lack of uniformity in the statutory and case law of the United States creates uncertainty and confusion in the eyes of foreign judges, scholars and practitioners^319(*). According to the same scholar, «foreign countries, often with more unified and transparent foreign judgment recognition and enforcement procedures therefore have little or no incentive to grant U.S judgments reciprocal enforcement^320(*)», and thus, foreign courts simply deny recognition to the American judgments construing from the lack of uniformity that American courts will not reciprocally recognize and enforce foreign judgments^321(*).

* ³⁰⁶. Matthew H. Adler, If We Build It, Will They Come?--The Need For a Multilateral Convention on The Recognition and Enforcement of Civil Monetary Judgements, Law and Policy in International Business, 1994, www.westlaw.com

* ³⁰⁷. 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.

* ³⁰⁸. Susan L. Stevens, Commanding International Judicial Respect: Reciprocity and Recognition and Enforcement of Foreign Judgments, Hastings International & Comparative Law Review 116, 2002-2003, p115

* ³⁰⁹. Ronald A. Brand, Enforcement of Judgments in the United States and Europe, Journal of Law and Commerce, spring 1994, www.westlaw.com

* ³¹⁰. Matthew H. Adler, If We Build It, Will They Come?--The Need For a Multilateral Convention on The Recognition and Enforcement of Civil Monetary Judgements, Law and Policy in International Business, 1994, www.westlaw.com

* ³¹¹. Matthew H. Adler, Id, citing Arthur Von Mehren, Recognition and Enforcement of Foreign Judgments - General Theory and the Role of Jurisdictional Requirements,

* ³¹². Gary B. Born, International Civil Litigation In US Courts, third edition, 1996, p955

* ³¹³ Roland A. Brand, Enforcement of Judgments in the United States and Europe, Journal of Law and Commerce, spring 1994, www.westlaw.com

* ³¹⁴. Remember that only 31 states enacted a version of the Uniform act.

* ³¹⁵. William G. Southard, Reciprocity Rule and Enforcement of Foreign Judgments, Columbia Journal of Transnational Law, 1977, p,342

* ³¹⁶. ALI's Proposed Federal Law, Introduction: National Law in The International Arena, p.1

* ³¹⁷. Susan L. Stevens, Commanding International Judicial Respect: Reciprocity and Recognition and Enforcement of Foreign Judgments, Hastings International & Comparative Law Review 116, 2002-2003, p115

* ³¹⁸. Olga Vorobeva, Reciprocity in Recognition and Enforcement of Foreign Judgments in Russia and the United States, Russian in the International Law Context: Private International Law, Cultural heritage, Intellectual Property, Harmonization Law, 2004 Berliner Wessendhafts-verlag, p.254

* ³¹⁹. Id. In order to show how this uniformity may make confusion for foreigner, the writer added that» for example, in the same publication providing overview of recognition of foreign judgments in different countries, the chapter in American law and practice explains that reciprocity is not required in the majority of states, while a chapter on a French law states although a number of foreign jurisdictions, notably the United States, impose a requirement of reciprocity for enforcement of foreign judgment, French law does not». Id p.254-255

* ³²⁰. Susan L. Stevens, Commanding International Judicial Respect: Reciprocity and Recognition and Enforcement of Foreign Judgments, Hastings International & Comparative Law Review 116, 2002-2003, p115

* ³²¹. Matthew H. Adler, If We Build It, Will They Come?--The Need For a Multilateral Convention on The Recognition and Enforcement of Civil Monetary Judgements, Law and Policy in International Business, 1994, www.westlaw.com