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

Chapter II: Multilateral Application of Reciprocity

Multilateral application of reciprocity seems to be necessary in order to conciliate the recognition and enforcement of foreign judgments with the concept of sovereignty, and therefore, to avoid uncertain, unreasonable and complicated unilateral application of the reciprocity rule. From this point of view, it is reasonable for foreign countries to enter into reciprocal formal agreements to protect their litigants and international commerce from the drastic consequences of the reciprocity requirement or the differences between states' legal practices.

Through treaties, countries vindicate their sovereignty and take into consideration the necessities of securing international transactions. In effect, treaties are a tool to exercise sovereignty and to reach common solution between sovereign and equal state. It is also a tool to express formal commitments from other countries to recognize and enforce foreign judgments. Multilateral application of reciprocity inevitably leads to the harmonization, if not unification, of standards for the recognition and enforcement of foreign judgments.

It is possible to make a distinction between three types of conventions on recognition and enforcement^121(*). The traditional type of judgments conventions is a «simple convention» or «single convention». This kind of convention addresses only recognition and enforcement. It entitles a judgment resting on accepted jurisdictional bases listed in the convention recognition and enforcement^122(*). Courts in this type of convention will retain their discretion to enforce judgments rendered on non-listed bases of jurisdiction^123(*).

The second type of convention is «double convention». This kind of convention regulates judicial jurisdiction as well as the recognition and enforcement of foreign judgments. Generally, this kind of convention contains a list of required bases of jurisdiction, «white list», and a list of prohibited bases of jurisdictions, «black list». The courts of the originating states are required to assume jurisdiction over a dispute if any of the basis of the white list are asserted. Courts of the recognizing states will be required to give effects to those judgments on the same basis. If any of the black list bases is asserted, the rendering court may not take the dispute and the enforcing court may not give it effect^124(*).

The last type of convention is called «mixed convention». This kind of convention contains, in addition to the white and black lists of judicial jurisdiction, a «grey list». If a court asserts its jurisdiction based on the grey list, the enforcing court will have discretion to recognize and/or enforce the judgment^125(*).

Whatever its type, these conventions are either bilateral agreements (Section I) or multilateral agreements (Section II).

Section I: Reciprocity and Bilateral Treaties

In this section, the use of reciprocity in bilateral treaties should be addressed in a first paragraph (Paragraph A), before addressing its role to harmonize standards for the recognition and enforcement of foreign judgment (Paragraph B).

Paragraph A - The Use of Reciprocity in Bilateral Treaties on Recognition and Enforcement of Foreign Judgments

Through a treaty two countries can not only ensure the reciprocal recognition and enforcement of their respective judgments (I), but also decide in which manner judgments emanating from their courts would be given effect i.e. the procedure that should be followed (II).

I - Reciprocity as a Commitment to Recognize and Enforce Foreign Judgments Rendered in the Contracting State

The purpose of such agreements is to provide a formal commitment which ensures state will effectively recognize and enforce judgments from the contracting state. In the absence of such formal commitment, foreign judgments risk to face unilateral policies of the state where the enforcement is sought. This means that foreign judgment may risk rejection - even though the recipient country does not condition the recognition on the prior existence of a treaty - and face the national standards for the recognition of foreign judgments. There would be neither predictability nor insurance for judgment creditors since they would be obliged to face standards that are sometimes qualified as restrictive or illiberal.

Some countries condition the recognition and enforcement of foreign judgments only on the establishment of a reciprocal treaty between them and the concerned foreign countries^126(*). This is the case of Finland, for example, where foreign judgments - absent to a treaty on the matter - are recognized only if the action is brought pursuant to a forum selection agreement or if it concerns a foreign immovable.

In this context also, an example from the Netherlands can be given. The Dutch Code of Civil Procedure states in its article 431 that «Except the provisions of articles 985 to 994 [which deal with the recognition pursuant to treaties and international conventions], judgments of a foreign court may not be executed within the Netherlands». The article continues by stating that «the disputes may be litigated before, and decided by, a Dutch court anew»^127(*). The only way to avoid this drastic situation is to establish a treaty^128(*).

For those countries a treaty is the only way to prove the commitment of foreign country to a liberal recognition practice and to ensure that their own judgments will be reciprocally given effect before the contacting country's courts. The existence of such reciprocal treaties will provide a proof for the satisfaction of the reciprocity requirement.

Generally, agreements of the kind - which provide the commitment to recognize and enforce judgments rendered in a contracting state - have the form of «Convention single» or «convention simple». Such a convention commits countries to give effect to judgments rendered by the courts of contracting states whenever the judgments rest on accepted bases of jurisdiction. The 1984 convention between Canada and the United Kingdom on the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters represents a good illustration. The Article VIII of the convention provides that «Any judgment given by a court of one Contracting State for the payment of a sum of money which could be registered under this Convention...shall...be recognized in a court of the other Contracting State as conclusive between the parties thereto in all proceedings founded on the same cause of action^129(*)».

Such agreements obviously provide a harmonized set of rules for litigants, judges as well as legal practitioners. The latters would not be obliged to check the very various recognition and enforcement standards each time they are face foreign judgments. Thus, these agreements provide predictability and certainty as regards to giving effect to foreign judgments.

* ¹²¹. Russell J. Weintraub, How Substantial Is Our Need For Judgments-Recognition Convention and What Should We Bargain Away to Get It? Brooklyn Journal of International Law, 1998 available at www.westlaw.com.

* ¹²². Eric B. Fastiff, The Proposed Hague Convention on the Recognition and Enforcement of Foreign Judgments: A Solution to Butch Reynolds's Jurisdiction and Enforcement Problems, Cornell International Law Journal, 1995 available at www.westlaw.com.

* ¹²³. Russell J. Weintraub, How Substantial Is Our Need For Judgments-Recognition Convention and What Should We Bargain Away to Get It? Brooklyn Journal of International Law, 1998 available at www.westlaw.com.

* ¹²⁴. Eric B. Fastiff, The Proposed Hague Convention on the Recognition and Enforcement of Foreign Judgments: A Solution to Butch Reynolds's Jurisdiction and Enforcement Problems, Cornell International Law Journal, 1995 available at www.westlaw.com.

* ¹²⁵. Id.

* ¹²⁶. Karim Toumi, Reciprocity Requirements, Master in Common law, Faculty of Legal, Political and Social Sciences of Tunis, 2006, p. 13

* ¹²⁷. Friedrich Juenger, The Recognition of Money Judgements In Civil and Commercial Matters, Selected Essays on the Conflict of Laws, p. 307-308.

* ¹²⁸. Some scholars argues that even though the law in those countries refuse the recognition and enforcement of foreign judgments in the absence of international agreement on the matter, foreign judgments are often given effect.

* ¹²⁹. Convention between the United Kingdom and Canada for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, Apr. 24, 1984