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

b) Determination of the Reciprocity Requirement by the American Enforcing Court

The drafters of the proposed federal statutes did not only determine the role of the parties in proving the existing of the reciprocity requirement, but also addressed the role of the American courts in assessing whether the requirement of reciprocity is satisfied. In this context two comments deserve to be made. As the reporters stated in their comments, the role of the judge is important in making the required determinations set forth in the proposed federal statute.

At first, despite the fact that the proposed federal statue made it mandatory to raise the defence of lack of reciprocity by the party seeking the recognition and enforcement of foreign judgment, it did not provide anything concerning the role of the court in raising the defence of lack of reciprocity. But as it was mentioned above, the court continued to have a passive attitude and cannot raise the defence of lack of reciprocity by itself. Once the defence of the lack of reciprocity is raised by the defendant, the proposed federal statute places an important role on American courts and provides them with the framework to determine whether the reciprocity requirement is fulfilled or not^353(*).

At first, in order to make the determination of whether courts of the rendering state would recognize comparable American judgment, the American courts should determine the meaning of comparable judgments. In this context, the reporters state that in doing so, the proposed federal statute does not require congruence between judgments rendered in the United States and those rendered in the state of origin^354(*). Moreover, the proposed federal statute provides a list of questions that the American enforcing court must consider in determining whether the originated courts accord reciprocity to comparable American judgments^355(*). With this regards, section7 (c) provides the following factors: «In making the determination required under subsections (a) and (b), the court shall, as appropriate, inquire whether the courts of the state of origin deny enforcement to (i) judgments against nationals of that state in favour of national of another state; (ii) judgments originating in the courts of the United States or of a state of the United States; (iii) judgments for compensatory damages rendered in actions for personal in jury or death; (iv) judgments for statutory claims; (v) particular types of judgments rendered by courts in the United States similar to the foreign judgment for which recognition or enforcement is sought. The court may also take into account other aspects of the recognition practice of courts of the state of origin, including practice with regard to judgments of other states».

The proposed federal statute requires also that American courts consider the recognition practice of the state of origin. Evidence is provided by the parties pursuant to section7 (b). In this context, the reporters mentioned in their comments of the section7 that the «the law or practice of the court of origin may be demonstrated by statutes, decrees of general applicability, or current decisions of court of last resort as well as by authoritative commentaries or treatises or expert testimony...»^356(*). In addition, the reporters argue that the evidence that courts of the originating state recognize and enforce foreign judgment without the benefit of treaty may be indicative that reciprocal treatment of judgments in the United States is to be expected^357(*).

The recognition practice of the state of origin with judgments rendered in other states can provide evidence for the American enforcing court of the treatment expected for American judgments. If that court is liberal in its recognition practice with foreign court, it is expected that American judgments will be liberally given effect by the courts of state of origin, however, if the recognition practice is considered as restrictive, American courts may have evidence that the courts of the state of origin will not recognize and enforce judgments rendered in the United States^358(*).

However, the proposed federal statute excludes as evidence of non reciprocal treatment from foreign courts the fact that the courts of the state of origin do not recognize or enforce judgments for punitive, exemplary, or multiple damages. section7 (d) provides «denial by courts of the state of origin of enforcement of judgments for punitive, exemplary, or multiple damages shall not be regarded as denial of reciprocal enforcement of judgments for the purpose of this section if the state of origin would enforce compensatory portion of such judgments». One commentator described this paragraph as «very important because it addresses a long-standing barrier to the recognition and enforcement of foreign judgments»^359(*).

* ³⁵³. Franklin O. Ballard, Turnabout Is Fair Play: Why a Reciprocity Requirement Should Be Included in the American Law Institute's Federal Statute, Houston Journal of International Law, Vol 28:1, 2006, p.219.

* ³⁵⁴. The American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section 7 - Comments, f. Inquiry concerning comparable judgments, p. 96 available at www.ali.org

* ³⁵⁵. 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. 256

* ³⁵⁶. The American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section 7 - Comments, e. evidence of practice of courts in the state of origin, p. 95 available at www.ali.org

* ³⁵⁷. Id.

* ³⁵⁸. With this regard the last paragraph of section7 (c) states «the court may also take into account the recognition practice of courts of the state of origin, including practice with regard to judgments of other states».

* ³⁵⁹. Franklin O. Ballard, Turnabout Is Fair Play: Why a Reciprocity Requirement Should Be Included in the American Law Institute's Federal Statute, Houston Journal of International Law, Vol 28:1, 2006, p.219.