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

Section II: Reciprocity as a Negative Requirement or Prerequisite to the Recognition and Enforcement of Foreign Judgments

Reciprocity in this context is more complicated than positive reciprocity. This complication is due to different approaches that underlie the negative reciprocity. Unlike positive reciprocity, negative reciprocity was not defined. It has always been referred to through its application which varies from one country to another. While comity requires that conclusive effect should be granted to foreign judgments whenever its requirements are met, negative reciprocity requires that a valid judgment should be thrown whenever the forum's judgments are not given effect by the foreign court from which the judgment is issued. Therefore, it is better to explain the notion of negative reciprocity (Paragraph A) before analysing its role in the harmonization of standards for the recognition and enforcement of foreign judgments (Paragraph B).

Paragraph A - The Notion of Negative Reciprocity

The negative reciprocity refers to the rules whereby a system of law subjects the recognition and enforcement of foreign judgments to the fulfilment of the reciprocity requirement. Reciprocity acts here as a precondition imposed by the state. It obliges the enforcing court to decline to recognize and enforce a foreign judgment whenever it appears that, in similar situation, the rendering foreign court does not give effect to judgments issued by the enforcing court.

Negative reciprocity is universally rooted in the field of the recognition and enforcement of foreign judgments especially in the civil law countries. This is basically due to the historical consequences of the application notion of sovereignty. In effect, sovereignty favours the approach consisting in either disregarding foreign courts decisions or honouring judgments rendered in states that honour the forum's judgments^96(*). In this context, reciprocity appears basically as a manifestation of the sovereignty principle^97(*). It is applied to protect the abstract interest of the state's dignity^98(*). To illustrate this situation, an example from Germany can be given. In effect, during the parliamentary discussions of the code of civil procedure (ZPO) reciprocity was retained to protect the honour and the dignity of the German Empire; and negative reciprocity is, therefore, conceived as a safeguard which restrict the liberal acceptance of judgment^99(*) when foreign courts do not respect the authority of the enforcing court.

The sovereign in this context establishes the legal framework of the recognition and enforcement of foreign judgments based on the attitude of foreign countries. Reciprocity here limits this liberal practice subjects it to the reciprocal treatment or liberal practice from foreign countries. An example from Tunisia can illustrate this situation. In 1998, the Tunisian Private International Law code was enacted. During the parliamentary discussions the government introduced the notion of reciprocity as «a safeguard to the opening of the Tunisian system to foreign legal regimes»^100(*). It was affirmed that despite the fact that the target of the private international law is to provide coordination and harmonization of different legal regimes, this target can only be achieved through the notion of reciprocity. Conceived as «safety belt», reciprocity slams the door before foreign judgments which do not respect the rule of reciprocity^101(*).

Moreover, reciprocity can be a tool of retaliation against states which do not recognize foreign judgments. Reciprocity as a tool of retaliation is generally applied by states which have liberal judgments recognition practice but are disappointed by the restrictive practices of foreign states. The aforementioned Hilton v. Guyot gives a good illustration of the negative reciprocity as a tool of retaliation. In that case, and despite the fact the Supreme Court declared its mission to give effect to foreign judgment on the basis of comity (positive reciprocity), the Supreme Court refused the recognition of a French judgment of the basis that French courts do not give effect to American Judgments and required negative reciprocity as condition to grant comity^102(*). The Supreme Court stated that «there is a distinct and independent ground upon which we are satisfied that the comity of our nation does not require us to give conclusive effect to judgments of the court of France; and that ground is the want of reciprocity»^103(*). Consequently, the doctrine of reciprocity as prerequisite for the recognition can be described as follows: «courts are required to do, not as justice and reason require, but as they are done by»^104(*).

Despite the worldwide application of reciprocity as a precondition for the recognition and enforcement of foreign judgments, there is no universal agreement on the scope of reciprocity requirement as a negative concept, and its application varies from one country to another^105(*). It can be applied broadly to include all patrimonial and matrimonial matters, or its scope can be restricted to the recognition and enforcement of money judgments; it can be applied as a reaction against the states that deny the forum's decisions or just against judgment creditors who are nationals of the offending state^106(*); in some extreme situations reciprocity is not only applied as a precondition applied by the courts to check the regularity of the foreign judgment, but also can be applied as a post-condition in the phase of the substantial enforcement of the foreign judgment^107(*).

To summarize, reciprocity is conceived as the price to be paid to get the benefit of the recognition and enforcement of one country's judgments abroad. It is also a control instrument which allows a country to oblige a foreign country to respect one country's decisions in the absence of international instruments regulating the issue of the movement of judgments. Unlike the approach of positive reciprocity, which accepts the deference to foreign law and grants comity to foreign judgments whenever the foreign judgment is compatible with the local system of law and meets certain procedural standards, negative reciprocity focuses on the concessions that a country must make to ensure extraterritorial effect of its judgments.

* ⁹⁶. Friedrich Juenger, The Recognition of Money Judgements In Civil and Commercial Matters, Selected Essays on the Conflict of Laws, p. 290

* ⁹⁷. Sami Bostanji, La Notion de La Réciprocité dans les Relations Privées Internationales (Réflexions à la Lumière du Nouveau Code Tunisien de Droit International Privé , Le Code Tunisien de Droit International Privé, Deux ans Après, 2003, p. 85

* ⁹⁸. Paul Lagarde, La Réciprocité en Droit International Privé, Collected courses of Private International Law, 1977, Tome 154 of the Collection, p. 142

* ⁹⁹. Id.

* ¹⁰⁰. The Tunisian Official Gazette, Deliberation of the National Assembly, 02/11/1998

* ¹⁰¹. Sami Bostanji, La Notion de La Réciprocité dans les Relations Privées Internationales (Réflexions à la Lumière du Nouveau Code Tunisien de Droit International Privé , Le Code Tunisien de Droit International Privé, Deux ans Après, 2003, p. 84.

* ¹⁰². Hilton v. Guyot, 1895

* ¹⁰³. Andreas F. Lowenfeld, International Litigation and Arbitration, Second Edition, American Casebook Series, 2002, p. 399.

* ¹⁰⁴. Eugene F. Scoles, Conflict of Laws, Third edition, ST. PAUL , MINN, 2000, p.1189

* ¹⁰⁵. Friedrich Juenger, The Recognition of Money Judgements In Civil and Commercial Matters, Selected Essays on the Conflict of Laws, p. 290

* ¹⁰⁶. Id, p. 312

* ¹⁰⁷. This is a unique and an extreme example in Tunisian law where the reciprocity can be apposed to judgment creditor after he successfully brings his action for the enforcement in Tunisia. The Article 18 of the Private International Law Code provides that «foreign decisions and judgments, which become enforceable in Tunisia, are enforceable in accordance with the Tunisian law without prejudice to the rule of reciprocity». See Sami Bostanji, La Notion de La Réciprocité dans les Relations Privées Internationales (Réflexions à la Lumière du Nouveau Code Tunisien de Droit International Privé , Le Code Tunisien de Droit International Privé, Deux ans Après, 2003, p. 79