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

Paragraph B - The Application of Positive Reciprocity and its Role in the Harmonization of Standards for the Recognition and Enforcement of Foreign Judgments

Positive reciprocity refers to the practice of one state in accepting foreign judgments and giving them effect within the limits of its territories. It is the behaviour that one state wants and/or hopes to have from other countries. This means that positive reciprocity is the attitude which consists for a country to choose its own policy which consists in a liberal practice for the recognition and enforcement of foreign judgments, with hope that foreign countries would do the same in return^86(*). This attitude has been justified as an inducement for foreign courts to honour foreign judgments^87(*).

Following this line of arguments, comity consists in a state adopting a liberal practice for the recognition and enforcement of foreign judgments with the hope that its practice will induce other states to adopt the same attitude in return; or, as it was described by Justice Story, comity is «...a sort of moral necessity to do justice, in order that justice may be done to us in return». This stems that a country will recognize and enforce foreign judgments hoping that foreign countries would reciprocally recognize and enforce judgments rendered by its courts. In other words, each state will determine for itself a judgments regime that it wants to be a model to be followed by other countries for the recognition and enforcement of foreign judgments. Consequently, positive reciprocity is based on the expected attitude of foreign countries and not the attitude reflected in their laws.

How will this notion of positive reciprocity or comity lead to a harmonized system of the recognition and enforcement of foreign judgments? What role does reciprocity play as a positive attitude in harmonizing standards for the recognition and enforcement of foreign judgments?

In adopting a positive reciprocity attitude, a state will elaborate liberal standards for the recognition and enforcement that can be imitated by foreign countries. Thus, states will not copy or imitate other countries' practice of judgments recognition and enforcement of foreign judgments, but they will imitate the expected reception of its liberal attitude by foreign states. To put it in other words, states will just anticipate the behavior that it wants for its judgments from the foreign countries^88(*).

Consequently, comity or positive reciprocity plays a very positive role^89(*). It facilitates, in fact, the circulation of judgments between foreign states. In this context, it was pointed in Laker Airways, Ltd. v. Sabena, Belgium World Airlines that «the central precept of comity teaches that...the decisions of foreign tribunals should be given effect in domestic courts, since recognition fosters international cooperation and encourage reciprocity, thereby promoting predictability and stability through satisfaction of mutual expectation. The interests of both forums are advanced, the foreign court because its laws and policies have been vindicated; the domestic country because international cooperation and ties have been strengthened. The rule of law is also encouraged, which benefits all nations^90(*).»

In addition, comity can lead to improvement of foreign countries' recognition practices. The important role of the positive reciprocity can be shown through its positive impact in changing the restrictive practices of recognition and enforcement of foreign judgments to a more liberal one. In this respect, it was argued that the liberal attitude of American court by granting comity to foreign judgments led to the change of judgments policies in countries that refuse to recognize foreign judgments in the absence of formal treaties on judgments recognition^91(*); or in those countries which require reciprocity as a precondition to the recognition and enforcement of foreign judgments^92(*). It was argued that, in Germany for example, «There have been no recent court decisions that have denied the enforcement of American judgments on the basis of reciprocity^93(*)» «thanks to the fact that the United States so freely recognizes German judgments»^94(*).

To this extent, by influencing foreign countries to soften their standards of the recognition and enforcement of foreign judgments, comity leads essentially to cooperation among countries based on mutual convenienced and expediency. The country which decided to soften its recognition practice would do that to satisfy the expectation of countries which have liberal practices. This idea was expressly cited in Laker Airways Ltd, v. Sabena, Belgium World Airlines where the American court pointed that «comity compels national courts to act at all times to increase the international legal ties that advance the rule of law within and among nations^95(*).

However, the non application and non respect of the rule of reciprocal appropriateness may lead to retaliation measurement from foreign countries. That is why, for many countries, reciprocity should be organized to produce its best effect and ensure cooperation.

* ⁸⁶. Paul Lagarde, La Réciprocité en Droit International Privé, Collected courses of Private International Law, 1977, Tome 154 of the Collection, p. 116-120

* ⁸⁷. See the English decision Hughs v. Cornelius, 83 Eng. Rep. 247 (K.B 1683)

* ⁸⁸. Paul Lagarde, La Réciprocité en Droit International Privé, Collected courses of Private International Law, 1977, Tome 154 of the Collection, p. 116-120

* ⁸⁹. Paul Lagarde, La Réciprocité en Droit International Privé, Collected courses of Private International Law, 1977, Tome 154 of the Collection, p. 116-120

* ⁹⁰. Laker Airways, Ltd. v. Sabena, Belgium World Airlines, 235 U.S. App. D.C. 207 (D.C Cir.1984)

* ⁹¹. This is the situation for example in the Netherlands and in Sweden where foreign judgment recognition is subjected to the existence of a formal treaty on the recognition and enforcement of foreign judgments. However, courts in both countries relaxed the application of the rule to allow foreign judgments having effect even in the absence of a formal treaty and that by accepting the enforcement of foreign judgment when jurisdiction is based on a forum selection agreement or on the basis of submission whenever the judgment debtor participated in a foreign proceeding. See Friedrich Juenger, The Recognition of Money Judgements In Civil and Commercial Matters, Selected Essays on the Conflict of Laws, p. 308-309

* ⁹². Among those countries which relaxed from the application of the reciprocity requirement as a precondition to the recognition and enforcement of foreign judgments and that the application of comity led to a change and an improvement in their recognition policy, the German example can give a perfect illustration. It was argued that the liberal practice of the United States has led to wider acceptance of American judgments by German Courts by relaxing from rules of the judgments recognition. See Friedrich Juenger, The Recognition of Money Judgements In Civil and Commercial Matters, Selected Essays on the Conflict of Laws, p. 314-315; see also 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. 420.

* ⁹³. Volker Behr, Enforcement of United States Money Judgments In Germany, Journal of Law and Commerce, 1994 available at www.westlaw.com

* ⁹⁴. 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. 420.

* ⁹⁵. Laker Airways, Ltd. v. Sabena, Belgium World Airlines (1984)