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

B - Application of the Reciprocity Requirement

By requiring a mandatory aspect to the reciprocity requirement, the ALI established a set of rules in order to clarify its application especially the issues of burden of proof. It seems to be logical to use principles that go along with the mandatory aspect of reciprocity requirement.

Provision 7 (b) provides that the defence of the lack of reciprocity shall be raised whenever a foreign judgment is asked to be given effect in the United States. In addition, unlike most of the states which require a reciprocity requirement, the proposed federal statute shows the way that should be followed to demonstrate the existence or the absence of reciprocity and that by determining the role of the parties and the role of the American enforcing court when dealing with the defence of reciprocity.

Therefore, it is compulsory to determine to role of the parties (a) before dealing with the role of the American enforcing court (b) whenever the defence of reciprocity is raised.

a) The Role of the Parties and the Burden of Proof:

Section 7 (b) of the ALI proposed statute determines the role of the parties in proving whether or not American judgments are recognized and enforced by foreign countries' courts. At first, the section7 (b) makes it compulsory to raise the defence of lack of reciprocity and it is incumbent on the defendant. The section7 (b) reads «A judgment debtor or other person resisting recognition or enforcement of a foreign judgment in accordance with this section shall raise the defence of lack of reciprocity with specificity as an affirmative defence»^345(*). In other words, the defence of the lack of reciprocity by foreign states shall be raised in any circumstance with respect to the recognition and enforcement of foreign judgment. It is not a choice that the party resisting the recognition can make but it is an obligation that should be fulfilled. In this context, what would happen in case the defendant does not raise the defence of lack of reciprocity?

The provision does not provide any answer. However, in the common law tradition, the role of judges is described as passive^346(*). One scholar wrote «The common law follows the principle that the parties to the litigation know best; it is for them to raise the issue that affect their interest. This can also be seen in the enforcement of judgments...Unless the judgment debtor appears and raises possible defects in the judgment or other objections to enforcement, the court will enforce the judgment. It has no independent function to check the jurisdiction of the foreign court. Nor is it concerned to find out whether the judgment debtor still has rights of review or appeal under the law of the court of origin. It is up to the judgment debtor to take steps to stay the enforcement of the judgment...^347(*)». Thus, where the party resisting the recognition and enforcement of the foreign judgment fails to raise the issue of lack of reciprocity for his or her defence in its responsive pleading, this means that that person waived the right to raise the issue at later stages of the proceeding^348(*). Courts are not required to make any findings on the issue of reciprocity if the defence is not raised.

The proposed federal statute addresses also the burden of proof of the reciprocity requirement when the issue of reciprocity is raised. The final proposed federal statute - Section 7 (b) - places such burden on the party resisting the recognition and enforcement of foreign judgment. This section, however, deserves some comment. In fact, previous suggestions proposed that the burden of proof should be incumbent of the judgment creditor. In the previous Drafts the section7 (b) provided that «Once the defence of lack of reciprocity is raised, the judgment creditor or other persons seeking to rely on the foreign judgment shall have the burden to show that the courts of the state of origin do grant recognition and enforcement of courts in the United States in comparable circumstances»^349(*). This means that once the lack of reciprocity is raised, it is for the party seeking recognition and enforcement of his or her judgment to prove that courts of the state of origin do give effect to judgments similar judgments in similar circumstances^350(*). This sentence was written together with the present section7 (b) (ii) but it was deleted after considerable discussion^351(*).

In its present form and unlike previous drafts, the drafters of the proposed federal statute created a presumption of reciprocity. American judgments are presumed to be recognized and enforced abroad unless the person resisting the recognition and enforcement of the foreign judgment proves the contrary. In the previous drafts, this presumption was lacking. They required a positive proof of reciprocity by placing the burden on the party seeking recognition and enforcement in the United States.

Moreover, the party resisting recognition or enforcement of the foreign judgment is not required to show that similar judgment rendered by a court in the United States does not have effect abroad, but rather to show that there is a substantial doubt that the court of the state of origin would give effect to an American judgment. For that purpose, the proposed federal statute provides a broad range of evidence. «Such showing may be made through expert testimony, or by judicial notice if the law of the state of origin or decisions of its courts are clear»^352(*). However, party resisting recognition or enforcement of foreign judgments cannot rely on the absence of an international treaty to prove the lack of reciprocity. Section 7 (e) provides that «the fact that no such agreement between the state of origin and the United States is in effect or that agreement is not applicable with respect to the judgment for which recognition and enforcement is sought, does not itself establish that the state fails to meet the reciprocity requirement of this section».

* ³⁴⁵. The American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section7 (b) - Reciprocal Recognition and Enforcement of Foreign Judgments, available at www.ali.org

* ³⁴⁶. Peter Nygh, The Preliminary Draft Hague Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters, International Conflict of Laws for the Third Millennium - Essays in Honor of Friedrich K. Juenger, Transnational Publishers, Inc. 2OOO, p.262-264

* ³⁴⁷. Peter Nygh, The Preliminary Draft Hague Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters, International Conflict of Laws for the Third Millennium - Essays in Honor of Friedrich K. Juenger, Transnational Publishers, Inc. 2OOO, p.262-264

* ³⁴⁸. Olga Vorobeva, Reciprocity in Recognition and Enforcement of foreign judgments in Russia and the United States, Russia in the International Context: Private International Law, Cultural Heritage, Intellectual Property, Harmonization Laws, Berlin Wessenshafts-Verlag, Gmbh, 2004, p. 255

* ³⁴⁹. ALI Council Draft No. 2 (September 30, 2002) & No. 3 (December 2, 2002), International Jurisdiction and Judgments Project,

* ³⁵⁰. Olga Vorobeva, Reciprocity in Recognition and Enforcement of foreign judgments in Russia and the United States, Russia in the International Context: Private International Law, Cultural Heritage, Intellectual Property, Harmonization Laws, Berlin Wessenshafts-Verlag, Gmbh, 2004, p. 255

* ³⁵¹. There were considerable discussions concerning the issue of the burden of proof. Previous drafts either required that the burden of proof shall be incumbent of the judgment creditor, or should there an alternative and shifting the burden on both the judgments creditors or judgments debtors. Finally it was agreed that the burden should be incumbent on the judgment debtor.

* ³⁵². The American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section7 (b) - Reciprocal Recognition and Enforcement of Foreign Judgments, available at www.ali.org