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

II - Reciprocity in Implementing Simplified Procedures for the Recognition and Enforcement of Foreign Judgments

As explained above, reciprocity can be an effective tool to ensure the reciprocal reception of foreign judgments. Through the treaty, reciprocity establishes a genuine commitment to recognize and enforce judgments rendered by the courts of the contracting states. In addition, reciprocity can also be used to negotiate other favourable conditions for judgment recognition that are only accorded through the establishment of a treaty. For this reason, the aim to enjoy such favourable conditions for judgments recognition incites foreign countries to enter into bilateral.

The like agreements can be used to implement simplified procedure for the recognition and enforcement of foreign judgments. The idea that lies behind the conclusion of such agreements is to show to the foreign country's readiness and willingness to grant effect to judgments rendered in the contracting state through the privilege of a simplified procedures. The establishment of such simplified procedures will inevitably avoid judgment creditors national standards as well as lengthy and costly common law procedures for judgments recognition and enforcement. Hence, such agreements will facilitate the direct recognition and enforcement of foreign judgments.

That is exactly the case of England, and common law countries in general, which apply a reciprocal procedure for the enforcement of foreign judgments called the registration of judgments or the domestication of foreign judgments^130(*). With the aim to increase the recognition of its judgments abroad, Parliament passed the Foreign Judgment (Reciprocal Enforcement) Act 1933. The provisions of the Act provide that judgments in civil and commercial matters shall be mutually recognized and enforced^131(*). However, this act applies only to countries that «afford substantial reciprocity of treatment» to English judgments^132(*).

The bilateral agreement between Canada and the United Kingdom can provide a good illustration of what has been advanced^133(*). The Convention aims to simplify the existing procedure for the reciprocal recognition and enforcement of money judgments in civil and commercial matters between Canada and the United Kingdom via the registration procedure^134(*). The same situation can be found in Australia where the Federal Parliament enacted the Foreign Judgments Act 1991. The Act makes overseas judgments enforceable in Australia instead of bringing a cumbersome common law action based on the judgment debt^135(*). The legislation - which is based on substantial reciprocity of enforcement whereby Australian court are urged to recognize a foreign judgment rendered in a situation in which Australian court would mutatis mutandis have exercised jurisdiction themselves - provides a new method of enforcement by registration^136(*).

* ¹³⁰. Registration is a statutory procedure especially in common law countries which is parallel to the action in common law. Unlike the action in common law which consists in a refresh action on the judgment that, if accepted, leads to a new judgment for the recognition and/or enforcement of the foreign judgment, the registration is an administrative procedure which simply consists in a request to register the foreign judgment within six years from its issuing date.

* ¹³¹. The principle of registration applies not only to the countries Commonwealth but also to foreign countries. An Order in Council determines countries to which the provision of the act applies. Orders to this effect have been made Pakistan, Bangladesh, India, Australia, Canada... and for countries outside the Commonwealth orders have been made for Austria, Belgium, France, Israel, Italy, Netherlands, Norway, Germany...

* ¹³². Susan L. Stevens, Commanding International Judicial Respect: Reciprocity and the Enforcement of Foreign Judgments, 26 Hasting Int'l & Comp. L. Rev, 2002-2003 at www.heinonline.com See also ...

* ¹³³. The Convention between Canada and the United Kingdom for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, 1984

* ¹³⁴ . Janet Walker, Halsbury's Laws of Canada, First Edition, 2006, p. 405

* ¹³⁵. P E Nygh & Marin Davis, Conflict of Laws in Australia, Seventh Edition, LexisNexis Butterworths, 2002, p. 199

* ¹³⁶ . Id, p. 200 - 201.