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

Section II: Reciprocity and Multilateral Treaties

Despite the advantages that bilateral judgments recognition treaties can afford, a problem may arise from the duplication and the proliferation of such agreements^142(*). For this reason, multilateral treaties seem to be the best way to ensure harmonization of standards for accepting foreign judgments on a more global level. Multilateral treaties ensure the same advantages as the bilateral treaties but at a larger scale.

In this section, efforts endeavoured to conclude reciprocal judgments recognition agreement will be discussed. It will be concluded that where such reciprocal agreements were implemented regionally (Paragraph A), attempts to define international standards on recognition and enforcement practice at a global level, i.e. to create a convention which would be joined by many countries and which would cover a broad range of foreign judgments, are far from being satisfactory (Paragraph B).

Paragraph A - Regional Treaties

No doubt that judgments recognition treaties are signed to remove obstacles which face judgments when taken abroad. Those treaties give general guidance with respect to the principles that govern the recognition and enforcement of foreign judgments. As far as regional treaties are concerned, one can notice that principles governing judgments recognition within a community system are similar to those established in a federal system for interstate recognition either under constitutional provisions or through uniform legislation^143(*).

For the purpose of this paragraph, regional treaties refer to special regimes of recognition and enforcement of judgments which were created to facilitate federal or community systems. Federal and community systems have similar characteristics. Both are divided into independent territorial legal units^144(*) which have their own legal systems. This means that judgments rendered in sister states belonging to the same federal or community state are treated as «foreign judgments» and therefore need special procedure in order to have effect in another sister state in the same manner as foreign judgments. For this reason, a community or a federation may seek, for a variety of reasons - which can be economic, political, and social reasons - to harmonize and unify the recognition and enforcement of judgments rendered in states belonging to the same federation and/or community in order to secure the establishment of a common market through facilitating judgments recognition.

Based upon reciprocal treatments of judgments, those regimes expressed a strong willingness to avoid traditional and national rules for the recognition and enforcement of foreign judgments and to establish a system of law that takes into consideration their unique interests. For this reason, it is worthy to mention the American «Full Faith and Credit Clause» (I), before analyzing reciprocity in multilateral regional treaties between independent countries represented by the European system of the recognition and enforcement of foreign judgments (II).

I - The Full Faith and Credit Clause

As mentioned in the introduction of this paragraph, provinces and states that constitute a federal country are separate and independent legal units. Each legal unit makes its own rule of conflict of law. As concerns the recognition and enforcement of foreign judgments, judgments rendered in one state are considered as the product of a legal system that differ in important respects both substantial and procedural rules of another sister state where the judgments are sought to be enforced^145(*). This means that in a federation like the United States, Australia or Canada, sister states' judgments are seen - by the jurisdiction where the enforcement - are viewed as foreign judgments in spite the fact that they emanate from sister states ^146(*). As a result and in the absence of federal guidance which obliges one sister state to recognize and enforce another sister state judgments, the judgments of states forming the same federal entity are not automatically enforced and recognized^147(*).

For this reason the Full Faith and Credit Clause was drafted in countries like the United States and Australia to control the interstate recognition of judgments and limit the freedom of states to adopt their own rules of interstate recognition. Therefore, in order to understand how reciprocity plays through federal guidance, the question of the history of the Full Faith and Credit Clause should be addressed (A), before addressing its impact on the recognition and enforcement of judgments (B).

A - The History of the Full Faith and Credit Clause in the United States

Before the independence, American Colonies were considered foreign nations to each other. They used to apply the English traditional rules for the recognition and enforcement of foreign judgment. This application led to the problem of judgments recognition and the appearance of migratory debtors, who could easily avoid their creditors simply by moving to another state.

To remedy this situation, there had been isolated and unsuccessful attempts to deal with the enforcement issue^148(*). An example from the province of Connecticut can be given where a judgment recognition statute was enacted. By means of this statute judgments rendered in sister colonies were given «due respect» but subject to the reciprocity requirement. The law read that «this order shall be accounted valid and improved only for the advantage of such as live within some of the confederate colonies; and where the verdict in the courts of this colony may receive reciprocal respect by a like order established by the general court of that colony»^149(*). That was also the case of the Massachusetts which enacted a law in 1774 stipulating that a judgment rendered in another colony shall have the same effect and operation in Massachusetts as in the jurisdiction where it was made^150(*).

After the independence of the colonies and in order to make a single country, the framers of the US Constitution decided to avoid problems of inter-state dispute resolution and especially those concerning the recognition and enforcement of judgments.

The Articles of Confederation, which preamble stated the purpose of securing and perpetuating mutual friendship and intercourse among the people of the different states, provides in its article IV^151(*) that «Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceeding of every other State^152(*)».

The drafting of the Full Faith and Credit Clause was conceived of as a tool of integration to ensure that state borders would not be coextensive with the validity of court judgments, believing that an interlinked judicial system would facilitate further linkages among the states. This Clause aimed basically to ensure the unity of the country which could be frustrated by the refusal of one state to give effect to judgments rendered in another sister state^153(*).

* ¹⁴². Friedrich Juenger, The Recognition of Money Judgements In Civil and Commercial Matters, Selected Essays on the Conflict of Laws, p. 288

* ¹⁴³. Kurt H. Nadelmann, Conflict of Laws: International and Interstate - Selected Essays, Kluwer Academic Publisher, 1972

* ¹⁴⁴. J-G Castel, Introduction to Conflict of Laws, Fourth Edition, Butterworth Canada Ltd. 2002, p.3

* ¹⁴⁵. Taylor Von Mehren, Recognition and Enforcement of Foreign Judgments - General Theory and The Role of Jurisdictional Requirements, Collected Courses of The Hague Academy of International Law, 1981, p. 86.

* ¹⁴⁶. Eugene F. Scoles, Conflict of Laws, Third Edition, ST.PAUL,MINN.,2000, p.1143

* ¹⁴⁷. That was the case in Canada before the famous decision of the Canadian Supreme Court in Morguard Investments Ltd v. De Savoye in 1990 where the Supreme Court made a fundamental change in the rules of jurisdiction and the recognition and enforcement of judgments between sister-provinces of the Federal State of Canada. Before the said decision of the Canadian Supreme Court, recognition and enforcement of judgments rendered in sister-provinces followed the traditional common-law rules which were applied equally to sister-state judgments and to foreign judgments. In Morguard decision, the Canadian Supreme Court expressed the view that Canadian courts had made «a serious error in transporting the rules developed for the enforcement of foreign judgments to the enforcement of judgment from sister provinces» and that «more generous acceptance of judgments of the courts of other constituent units of the federation» should be addressed. As a result, courts in one province or territory or territory «should give full faith and credit...to the judgments given by a court in another province and territory, so long as that court has properly, or appropriately, exercised jurisdiction in the action». See Janet Walker, Walker «Rule 17 - Service Outside Ontario», Private International Law, Cases and Materials, 2004, p. ... and J-G Castel, Introduction to Conflict of Laws, Fourth Edition, Butterworth Canada Ltd. 2002, p. 104

* ¹⁴⁸. William L. Reynolds & William M. Richman, The Full Faith and Credit Clause: A Reference Guide to The United States Constitution

* ¹⁴⁹. Louisa B. Childs, Shaky Foundations: Criticism of Reciprocity and the Distinction Between Public and Private International Law, International Law and Politics, Vol. 38:221, 2006, p. 224

* ¹⁵⁰. William L. Reynolds & William M. Richman, The Full Faith and Credit Clause: A Reference Guide to The United States Constitution

* ¹⁵¹ . Note that this provision is remarkably similar to the Article IV of the U.S Constitutional Convention.

* ¹⁵². U.S Constitution art. IV section1.

* ¹⁵³. William L. Reynolds & William M. Richman, The Full Faith and Credit Clause: A Reference Guide to The United States...