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

II - Agreements with Foreign States

One of the most important issues that were dealt with the ALI is the kind of agreements that should be negotiated as well as their form. The text of the provision itself does not give a precise answer. However, as it was already mentioned, the section7 (e) merely authorizes the State Department to negotiate agreements with foreign states setting forth reciprocal practices concerning recognition and enforcement of foreign judgments. In the reporters' comments, it was stated that «these agreements need not to be formal treaties, but could be Memoranda of Understanding, exchanges of diplomatic notes, or similar bilateral declaration...^366(*)»

A second problem related to agreements with foreign states was addressed by the drafters of the proposed federal statute. The problem concerns the weight of such agreements in determining the existing or the absence of the reciprocity requirement. With this respect, the section7 (e) states that «the existing of such an agreement between a foreign state or a group of states and the United States established that the requirement of reciprocity has been met». However, such agreements are limited only to the judgments governed by the agreements and are not extended to other types of judgments which are not included its scope.

An agreement with foreign state constitutes a proof of establishment of reciprocity requirement, but knowing that the United States has not any international agreement in the field of the recognition and enforcement of foreign judgments, what would be the effect of the absence of such agreements or the failure of the United States to enter into international agreements with other foreign countries?

The defendant cannot use the absence of international agreements as a defence to establish the lack of reciprocity; and the courts, in determining the existence of reciprocal treatment, cannot conclude that reciprocity is lacking solely on the basis of the absence of agreements. In this respect, the 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».

* ³⁶⁶. The American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section 7 - Comments, c. Agreements with foreign states, p. 94 available at www.ali.org