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

Paragraph B - Worldwide Treaties: The Hague Efforts in Drafting a Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters

The success of the Brussels and Lugano convention inspired other countries to undertake negotiations in order to establish a worldwide regime of judgments recognition based on reciprocal recognition and enforcement of judgments. Such a worldwide convention aims to provide global harmonization of standards for judgments recognition. In order to achieve this goal, works on a multilateral agreement have been started at the Hague Conference on Private International Law. It is agreed that a successful negotiation of such a convention would be a huge step toward an international regime for enforcing foreign court judgments^196(*).

Although all of the scholars agreed about the benefits that such agreement would bring, concluding a worldwide convention is a complicated task. The complication is due to the differences between legal systems. However, where efforts failed to conclude a wide-ranging convention (I), negotiations succeeded to conclude a limited-scope convention (II).

I - The Hague Convention on Recognition and Enforcement of Judgments: Failure of Efforts to Establish a Wide-Ranging Global Convention

Taking into consideration the need of international transactions and the actual world situation which requires a legal structure for the judgments recognition, a first step was taken and a convention on the recognition and enforcement of foreign judgments on civil and commercial matters was concluded in 1971^197(*). However, although ratified, the convention has not entered into effect since the states which ratified the convention did not execute the required bilateral accords^198(*). As for the European countries that ratified it^199(*), it was replaced by the Brussels Convention which was completed almost in the same time.

The Convention established a liberal system of recognition since it required member states to recognize judgments of other member states where foreign judgments are rendered on accepted basis of jurisdiction^200(*). In its article 4, the 1971 Hague convention provides «A decision rendered in one of the Contracting States shall be entitled to recognition and enforcement in another Contracting State under the terms of this Convention». Nevertheless, the nature of the convention was described as «unsatisfactory» since it left signatories free to claim jurisdiction on their own grounds and since its implementation required the cumbersome process of executing bilateral agreements between states that wanted to get benefit from the application of the Convention^201(*).

A new attempt to conclude a worldwide convention on the recognition and enforcement of foreign judgments started following the proposal made by the United States in 1992^202(*). Unlike the 1971 Hague Convention, it was suggested that the new convention would be modeled on the Brussels Convention to create a standard equivalent to full faith and credit between member states of the Convention^203(*).

Just like the Brussels Convention, the purpose of The Hague Convention is to prohibit general reexamination of the judgments rendered by courts of member states and guarantee compliance with the reciprocity rule through reciprocal recognition and enforcement of the convention member states' judgments^204(*). In this context, one scholar wrote «The judgment must come from a contracting country if it is to be recognized and enforced under the Convention in another contracting country, so reciprocity is inbuilt within the Convention^205(*)». Therefore, «the draft Hague Convention has significant symbolic value as a signal of increasing harmonization and cooperation in international recognition and enforcement practice, and international relation in general»^206(*).

Giving the fact that the new draft Hague Convention was intended to cover the majority of civil and commercial matters, it has, therefore, a potential to be «powerful facilitators of economic cooperation and integration»^207(*). In this context, one scholar wrote that «the proposed Hague convention represents an attempt to translate lessons of regional enlightenment [The Full Faith and Credit of the American Constitution and Brussels Regime] to a global audience»^208(*).

A preliminary draft convention was adopted in 1999 and it was revised in 2001. It took the form of a «mixed convention» which contains, in addition to white list of accepted bases of jurisdiction and a black list of prohibited bases of jurisdiction, a grey list of jurisdictional bases which were neither permitted nor prohibited and gave the enforcing court discretion to either give effect to judgments based on such bases^209(*). The convention drafts provide for general recognition and enforcement of judgments of the contracting states which are rendered on the ground of the accepted bases of jurisdiction are listed in the white list. Judgments issued on the ground of the black list will be rejected. However, unlike the previous attempt of the 1971 Hague convention, the 2001 draft allows member state courts to recognize and enforce judgments rendered on the ground of national bases of jurisdiction provided that those bases are not prohibited by the convention^210(*).

However, this new attempt also for global harmonization was considered as too ambitious for its time^211(*). This was due not only to the fact that participating countries were paying less attention to the global advantage of a global judgments agreement than their own specific national goals^212(*), but also to the divergent legal traditions which hold dear rules of law that are not acceptable by other countries^213(*).

* ¹⁹⁶. Sean D. Murphy, Negotiation of A Convention On Jurisdiction and Enforcement of Judgments, American Journal of International Law, 2001 at www.westlaw.com.

* ¹⁹⁷. The Hague Convention on the Recognition and Enforcement of foreign judgments in Civil and Commercial Matters concluded on February 1, 1971 and entered into force on August 20, 1979, see www.hcch.net.

* ¹⁹⁸. 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 Problems, Cornell International Law Journal, 1995 available at www.westlaw.com

* ¹⁹⁹. The 1971 Hague Convention on Judgments Recognition was signed by Cyprus, the Netherlands, Portugal and Kuwait.

* ²⁰⁰. The 1971 Hague Convention is considered as a «convention single» and that by defining the conditions in which contracting states would recognize judgments rendered by member states' courts. See Peter Nygh, The Preliminary Draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, International Conflict of Laws for the Third Millennium - Essays in Honor of Friedrich K. Juenger, Edited by Patrick J. Brochers and Joachim Zekoll, 2000, p.261

* ²⁰¹. It is important to point out that even though the convention addressed only question of indirect jurisdiction, a protocol, Supplementary Protocol to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters signed in 1971, eliminated exorbitant bases of jurisdiction, However, member states remain free to regulate bases of direct jurisdiction i.e. the conditions under which a court assumes jurisdiction. See Friedrich K. Juenger, A Hague Judgments Convention? Brooklyn Journal of International Law, 1998 available at www.westlaw.com; see also Peter Nygh, The Preliminary Draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, International Conflict of Laws for the Third Millennium - Essays in Honor of Friedrich K. Juenger, Edited by Patrick J. Brochers and Joachim Zekoll, 2000, p.262

* ²⁰². Peter Nygh, The Preliminary Draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, International Conflict of Laws for the Third Millennium - Essays in Honor of Friedrich K. Juenger, Edited by Patrick J. Brochers and Joachim Zekoll, 2000, p.261

* ²⁰³. J. Noelle Hicks, Andrew P. Vance Memorial Writing Competition Winner Facilitating International Trade: The U.S. Needs Federal Legislation Governing the Enforcement of Foreign Judgments, Brooklyn Journal of International Law, 2002 available at www.westlaw.com.

* ²⁰⁴. Roland A. Brand, Enforcement of Foreign Money-Judgments in the United States: In Search of Uniformity and International Acceptance, Notre Dame Law Review, 1991 available at www.westlaw.com.

* ²⁰⁵. Catherine Kessedjian, Remarks, Proceedings of the 76th Annual Meeting of The American Law Institute, 76 A.L.I. PROC.465, 1999

* ²⁰⁶. Katherine R. Miller, Playground Politics: Assessing the Wisdom of Writing a Reciprocity Requirement Into U.S International and Enforcement Law, Georgetown Journal of International Law, 2004, p.295 available at www.westlaw.com.

* ²⁰⁷. Katherine R. Miller, Playground Politics: Assessing the Wisdom of Writing a Reciprocity Requirement Into U.S International and Enforcement Law, Georgetown Journal of International Law, 2004, p.295 available at www.westlaw.com.

* ²⁰⁸. Stephen B. Burbank, Jurisdictional Equilibration, the Proposed Hague Convention and Progress in National Law, American Journal Comparative Law, 2001 available at www.westlaw.com.

* ²⁰⁹. Masato Dagauchi, The Hague Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters from a Perspective of Japan, Japanese yearbook of Private International Law, 2001, p. 83.

* ²¹⁰. Id, p. 85

* ²¹¹. Andrea Schulz, The 2005 Hague Convention on Choice of Court Clauses, ILSA Journal of International & Comparative law, Vol. 12:433, 2006, p. 434

* ²¹². Katherine R. Miller, Playground Politics: Assessing the Wisdom of Writing a Reciprocity Requirement Into U.S International and Enforcement Law, Georgetown Journal of International Law, 2004, p.295 available at www.westlaw.com.

* ²¹³. Brandon B. Danford, The Enforcement Of Foreign Money Judgments in the Unites States and Europe: How Can We Achieve a Comprehensive Treaty?, The Review of Litigation, 2004, p. 414; see also Peter Nygh, The Preliminary Draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, International Conflict of Laws for the Third Millennium - Essays in Honor of Friedrich K. Juenger, Edited by Patrick J. Brochers and Joachim Zekoll, 2000, p.263 where he explains the differences between common law legal tradition and civil law legal tradition and how those differences made obstacles that stood in the way of creating a global judgments convention.