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

General Conclusion:

This paper tried to address the role of the reciprocity in relation with the harmonization of standards of the recognition and enforcement of foreign judgments. The issue is not easy given the fact the imprecise and changeable nature of the reciprocity. In fact, where reciprocity can be applied positively either unilaterally or multilaterally, it can be applied negatively. Unfortunately, where the multilateral application of the reciprocity has not reached a universal level yet, its negative application is more common than its positive application.

Reciprocity may lead to a real harmonization to the standards of the recognition and enforcement of foreign judgments regardless of its nature and impact on litigants. Applied positively on the basis of comity, it leads to the reception of foreign judgments and may influence the practice of foreign countries to adopt liberal recognition practices. Applied negatively, countries which suffered the non-recognition of their judgments may align on the most restrictive solution of judgments recognition practices. Game theorists advanced the argument that this situation provide a real commitment to recognize and enforce judgments coming from other countries with reciprocity requirements. As a result, countries will adopt the same standards, although restrictive, but which ensure reciprocal judgment recognition practices.

The main idea which underlies this work consists in the need of the reciprocity to adapt itself to the new developments affecting the world - especially the decline of the notion of sovereignty in the era of globalization and cross border litigation - in order to subsist in the field of the recognition and enforcement of foreign judgments. This paper tried to assess the new arguments given in favour of the reciprocity rule in the light of those new developments.

However, whether applied as a tool of protectionism or as a tool of trade liberalization, reciprocity could and can eliminate some obstacles that face the harmonization of judgments recognition and enforcement standards. This can happen since reciprocity can draw a real commitment from foreign countries to cooperate. In the field of the recognition and enforcement of foreign judgments, the cooperation will be expressed by reciprocal liberal recognition and enforcement practice.

Yet, the negative impact of the reciprocity on the recognition and enforcement practices and litigants can hardly legitimate its presence in the field of the recognition and enforcement of foreign judgments. The fact to refuse valid judgments on the basis of reciprocity violates the tenets of justice and that despite the goal it wants to reach.

As a result, the emphasis should not be put on the negative aspect of the reciprocity but on its positive aspect in an attempt to try to eliminate the negative aspect of the reciprocity requirement. This can happen only by cooperation and harmonization of standards which compel concessions. Concessions are effective when they take the form of treaties. Treaties are considered as the best tool not only for the harmonization of standards of judgments recognition and jurisdiction, but also to provide a unified system of recognition and enforcement of foreign judgments. The Brussels regime presents a perfect illustration. Despite the differences of languages, culture and legal traditions of its member states, the Brussels regime could remove many difficulties and uncertainties of litigating in Europe and has enormously improved the prospect of the enforcement of member state judgments.

Therefore, the present work tried to show that the liberal recognition and enforcement of foreign judgments is welcomed by the international community when , and there are efforts to reach this goal. But what really hampers those efforts is not the difference of the standards for the recognition and enforcement of foreign judgments, but what is the judicial jurisdiction itself. In this context, reference should be addressed to Professor Janet Walker who wrote «harmonizing jurisdictional law is a special kind of project because the law of jurisdiction reflects, like no other area of law, the aspiration of particular legal systems for private law adjudication...changes in jurisdiction have the capacity to affect our basic trust in the civil justice system, even at the level of individual cases...When a court is asked to exercise jurisdiction over a dispute that should not decide, we call that abuse; and when a court declines to hear a case that it should decide, we call that a denial of justice. Both of these situations call into question the integrity of the system^405(*)».

The solution is found in reciprocity as found in the idea of concessions; same as human social life. Where human beings need to make concessions in order to organize their social life and limit abuses, countries need to reciprocally accept their differences in order to promote recognition and enforcement of foreign judgments. Should a new a system be built, it had to be based on acceptance of differences and the opening of legal systems to each other. A system based on the application of reciprocity as tool to punish those who do not have same conception would create an eye for an eye system, and referring to what Mahatma Ghandi once said «an eye for an eye and soon the whole world becomes blind».

End

* ⁴⁰⁵. Janet Walker, The Better Part of Harmonizing Jurisdictional Law, Proceedings of the 96^th Annual Meeting of the American Society of International Law, March 2002, p. 343