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

Paragraph B - Reciprocity as a «Negotiating Tool»

As it was already mentioned in the Reporters' Notes in the proposed final statute, the inclusion of reciprocity, as mandatory requirement for judgments recognition, tends «on the one hand to permit defence of lack of reciprocity to be raised in an enforcement proceeding, and on the other hand, to provide opportunity for foreign states to avoid the issue of reciprocity by entering into an agreement»^360(*). The aim of the reciprocity requirement, therefore, is not to make the recognition and enforcement in the United States more difficult; but to create incentive to foreign governments to commit to give effect to American judgments since the proposed federal statute allows them to avoid the issue of reciprocity all together by entering into an agreement with the United States. As such, some commentators argued that reciprocity is used a negotiating tool. It allows the United States to accede to a treaty on the recognition and enforcement of foreign judgments. With this respect, section7 (e) provides the framework of the application of reciprocity as a negotiating tool. At first, it gives an important role of the Sate Department to conduct negotiations with foreign countries to conclude formal agreements (I), but does not require a specific form for the agreement (II).

I - The Role of State Department

One of the major reasons for which the ALI undertook the drafting of the proposed federal statute was to create incentives for foreign countries to enter into international agreements with the United States; and ensure their commitments to recognize and enforce judgments from the United States.

The State Department was relegated to a lesser role than in earlier drafts^361(*). In fact, its role was limited to the maintaining and the publishing of lists of foreign countries which either accord or do not accord recognition and enforcement to American judgments^362(*). After some revisions of the draft, the Secretary of State was allowed to negotiate reciprocity for particular agreements^363(*).

With this respect the section7 (e) gives the Secretary of State a very important role. This role consists, basically, in negotiating agreements with foreign states setting forth reciprocal practices concerning recognition and enforcement of foreign judgments. These agreements, when concluded, will constitute conclusive evidence that the requirement of reciprocity has been met.

The Drafters of the proposed federal statute recognize the risk that the inclusion of the reciprocity requirement might entail. By including a reciprocity requirement, foreign countries with reciprocity requirement may conclude that this inclusion will bar the recognition of their judgments and therefore refuse to recognize American judgments. However, by allowing the Secretary of State to negotiate international agreements on judgments recognition, the very purpose is to signal the willingness of the United States to cooperate and enforce foreign countries' judgments. The Secretary of State can also negotiate other incentives included in the proposed federal statute such as the registration procedure included in the section 10^364(*), or the provisional measures in aid of foreign proceedings^365(*).

* ³⁶⁰. The American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section 7 - Reporters' Notes, 1. Rationale, p. 97 available at www.ali.org

* ³⁶¹. Katherine R. Miller, Playground Politics: Assessing the Wisdom of Writing a Reciprocity Requirement into U.S International Recognition and Enforcement Law, Georgetown Journal of International Law, winter 2004, p282 available at w as ww.westlaw.com.

* ³⁶². ALI Council Draft No. 1, Jurisdiction and International Judgments Project, November 20, 2001, it was stated that «the Secretary of State is directed to maintain and publish (i) a list of foreign states that accord recognition and enforcement to judgments rendered in the United States; and (ii) a list of foreign states that do not accord recognition and enforcement to judgments rendered in the United States. A judgment rendered in a state on list (i) is entitled recognition and enforcement in accordance with this Act, subject only to the defences set out in subsections (a) and (b). A judgment rendered in a state on list (ii) shall not be recognized and enforced in a court in the United States.» See Susan L. Stevens, Commending International Judicial Respect: Reciprocity and the Recognition and Enforcement of Foreign Judgments, 26 Hasting International and Comparative Law Review, 2002-2003, p.130 available at www.heinonline.com.

* ³⁶³. Susan L. Stevens, Commending International Judicial Respect: Reciprocity and the Recognition and Enforcement of Foreign Judgments, 26 Hasting International and Comparative Law Review, 2002-2003, p.134, available at www.heinonline.com.

* ³⁶⁴. section 10 (a) reads «[A] foreign judgment [issued by court of a state that has entered into an agreement with the United States for reciprocal recognition of judgments pursuant to section7(e) of this Act] may be registered in accordance with this section in the United States...», See The American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section 10 - Registration of Foreign Money Judgments in Federal Courts, p. 118 available at www.ali.org

* ³⁶⁵. The reporters state in their comments that «while the basis of this section is the desirability of cooperation among courts in different countries, it is not necessary for the court in the United States to determine whether the foreign court would grant similar assistance to order s of courts in the United States. However, subsections (a)(i) and (a)(ii) make clear that the authority granted herein is dependent on a determination that the foreign judgment or expected judgment is entitled to recognition and enforcement in the United States, including the reciprocity requirement in section7». The American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section 12. Provisional Measures in Aid of Foreign Proceedings - Comments, e. Provisional remedies and reciprocity, p. 140 available at www.ali.org