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

Paragraph B - The Role of Reciprocity in Bilateral Treaties on the Recognition and Enforcement of Foreign Judgments

Reciprocity has always been conceived as a tool in the hands of governments to facilitate the negotiation of agreements that secure the recognition of judgment rendered in contracting states and provides for more favourable conditions or advantages of judgments enforcement^137(*). In this context, reciprocity has another significance. It refers to the organized legal rules that are reciprocally applicable only between the contracting states through treaties ^138(*). Reciprocity requirement is not left anymore to the national courts or legislators, but it is a tool for diplomats to solve the problems that domestic courts and legislators created^139(*). Indeed, while negotiating the terms of the agreement, each state will have to concede some privilege to the contracting state to get the guarantee of reciprocal recognition and enforcement of their judgments, or to get the privilege of a simplified procedure for the recognition and enforcement of its judgments abroad. As result, through the treaty, some obstacles will be eliminated and will be replaced by a new vision which reflects the common interests of the contracting states.

Here again, by the conclusion of the treaty, states express their willingness and consent to accord reciprocal advantages and benefits that would result from the liberalization of the judgments recognition practices. Through the treaty, the state will exercise its sovereignty and accept the intrusion of foreign sovereign declaration in its domain.

The commitment to the recognition and enforcement of foreign judgments or the implantation of a simplified procedure are considered as the price to be paid for inducing foreign courts to give extraterritorial effect to foreign judgments^140(*). Thus, reciprocity shows here the level of confidence that each country reciprocally gives to another country. This is basically due to the level of cooperation between the two contracting states.

With this regards, the application of reciprocity through international agreement is simpler than that of unilateral application. It applies through a treaty and ensures a formal commitment from the contracting state to recognize and enforce judgments emanating from their respective courts. Since the existence of reciprocity is proved by the treaty, it relieves litigants from having the burden of proof of the existence of reciprocity. Reciprocity, in case of a treaty, is asserted as a statutory and governmental proof which shows that the contracting state does not only give effect to the rendering court's judgments, but also it applies the same standards to recognize and enforce judgments emanating from the contracting country.

However, the advantages that one state can get from a bilateral agreement can be diminished when the application of the treaty itself is subjected to the rule of reciprocity. Indeed, some states condition the application of treaties to the proof of reciprocity as a precondition to the application of the treaty. This is the case for example of the article 32 of the Tunisian Constitution which makes from reciprocity a fundamental condition for the application of the treaty. The article 32 reads that «treaties are applied only after their ratification and subject to their application by the contracting party».

Another point can be raised which concerns non-contracting parties to the convention. In effect, non-contracting states are usually excluded from the application of the treaties. This is logical since the contracting countries have to compromise their laws or part of their systems to reach an agreement^141(*). As a result, they exclude countries which did not pay that price to ensure the recognition of their judgments even though their recognition practice is considered as liberal. This means that non-contracting countries will continue to be discriminated and their judgments will continue to face the national standards for the recognition and enforcement of their judgments which are based on unilateral application of reciprocity or that are sometimes described as restrictive.

* ¹³⁷. Friedrich Juenger, The Recognition of Money Judgements In Civil and Commercial Matters, Selected Essays on the Conflict of Laws, p. 288

* ¹³⁸. Paul Lagarde, La Réciprocité en Droit International Privé, Collected courses of Private International Law, 1977, Tome 154 of the Collection, p. 176

* ¹³⁹. Friedrich Juenger, The Recognition of Money Judgements In Civil and Commercial Matters, Selected Essays on the Conflict of Laws, p. 288

* ¹⁴⁰. Id.

* ¹⁴¹. Eric B. Fastiff, The Proposed Hague Convention On The Recognition and Enforcement of Civil and Commercial Judgments: A Solution to Butch Reynolds's Jurisdiction and Enforcement Problem, Cornell International Law Journal, Spring 1995