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

II - Impact of the Reciprocity Requirement on the Recognition and Enforcement of Foreign Judgments in the United States

The expected impact of the reciprocity requirement is that judgments rendered in countries where American judgments are refused recognition and enforcement will be denied recognition and enforcement in the United States. The drafters of the proposed federal statute made from reciprocity a fundamental basis for the recognition of foreign judgments in the United. It operates even where American judgments are refused recognition and enforcement due to the broad assumption of jurisdiction in the United States or the fact the American judgments are not compatible with the public policy of the foreign states. There is only one exception to the rule concerns the denial by the foreign courts enforcement of judgments for punitive, exemplary or multiple damages. The refusal to enforce such judgments shall not be regarded as denial of reciprocal enforcement of judgments^384(*).

The United States seems to be in an arm-wrestling match with the rest of the world. It concerns the fact that American judgments should be respected and granted full effect in foreign countries - even though based on vague and unclear bases of jurisdiction or contrary to public policy - or foreign countries will lose the advantage of the liberal recognition practice that their judgments are enjoying in the United States. In other words, the United States will reward cooperation by continuing the liberal reception of foreign judgments rendered by the courts that would liberally recognize American judgments, and will punish non cooperation by slamming the door of the liberal judgment recognition in the face of those countries where American judgments are refused recognition and enforcement.

However, in this respect, although the drafter tried to frame the operation of the reciprocity requirement, its application continues to be unclear especially with regard to the proof of the foreign state's practice or law. How the reciprocity requirement can be established? This question was raised during the ALI's debate on the introduction of the reciprocity requirement. As Professor Lowenfeld expressed «We are troubled by the issue of evidence. We have tried to do the best we could by saying that the question of establishing reciprocity is like other questions of foreign law. That is, you get experts. Well, some people say that experts are not only expensive, but also they cause delay and do not always result in convincing proof. I have, for example, in my casebook, a very interesting case in which a German court in Berlin declined to enforce a judgment of an American court in a product-liability case arising out of a jury verdict, and the court says, among other things, we will not enforce because we can't really tell the reasons for the American judgment because it was a jury verdict. Now is that the German law? Well, the case was settled pending appeal. So the issue of burden of proof becomes a difficult one^385(*)».

Another example can be given from Tunisia. If American courts look at the Tunisian judgments recognition law in abstracto i.e. look at the Tunisian law as provided for by the Tunisian Private International Law Code (TPILC), it will appear as very restrictive. This is due to the double application of the reciprocity requirement in the Tunisian law. With this respect, the Tunisian PILC requires, among other condition, the fulfilment of the reciprocity condition first as a precondition to the recognition and enforcement of foreign judgments. The Article 11/5 requires that «the exequatur is not granted to foreign decisions and judgments if...the state where the foreign decision or judgment was rendered does not respect the reciprocity rule». Tunisian scholars criticized this provision and describe it as very restrictive since this provision implies the refusal of the enforcement of foreign judgment for the mere reason that the foreign legal system imposes conditions unknown to the Tunisian law^386(*). Therefore, if a judgment is rendered by a foreign legal system which requires conditions for the judgments recognition more severe than those required by the Tunisian vis-à-vis a Tunisian judgment, the foreign judgment will simply be refused enforcement^387(*). Secondly, the Tunisian law has the unique provision which requires reciprocity not only as a precondition to the enforcement of the foreign judgment i.e. in the phase of checking the regularity of the foreign judgment, but also as a post-condition to the enforcement of the foreign judgment i.e. reciprocity can be opposed to the judgment creditor at the substantial enforcement of the foreign judgment^388(*).

On the other hand, if American courts will look at the Tunisian system in concreto, they may find that Tunisian courts are liberal in their judgments enforcement practice. This is due first to the fact that foreign judgments are automatically recognized in Tunisia^389(*), which is opposite to the common law system where foreign judgments are not automatically entitled recognition. Secondly, except the condition of reciprocity in the TPILC, the other conditions favour the liberal circulation of judgments since Tunisian courts are not required to control the assumption of jurisdiction of foreign courts^390(*). Finally, it is stated by Tunisian scholars that Tunisian courts hesitated to apply the reciprocity requirement, and in many cases they simply ignored it^391(*).

In the light of what has been presented so far, a question might be raised: will a Tunisian judgment be recognized and enforced in the United States? According to the drafters of the proposed federal statute, there is a lot of doubt that with the reciprocity requirement included in the final draft Tunisian judgments will be enforced unless there are some agreements with the United States in accordance with the section7 (e). And with this respect, Tunisia may take the position of the rest world.

* ³⁸⁴. The American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposal Federal Statute - Proposed Final Draft (April 11, 2005), section7 (d) - Reciprocal Recognition and Enforcement of Foreign Judgments, available at www.ali.org

* ³⁸⁵. ALI's minutes of Tuesday Morning Session, May 18, 2004 p, 146 available at www.ali.org

* ³⁸⁶. Ali Mezghani, Commentaires du Code de Droit International Privé, Tunis, C.P.U, 1999, p. 205

* ³⁸⁷. Monia Ben Jémia, L'Exequatur des Décisions Etrangères en Matière de Statut Personnel, RTD 2000, p. 156

* ³⁸⁸. Article 18 of the Tunisian Private International Law Code (TPILC), 1998 which states: «Foreign decisions and judgments which become enforceable in Tunisia are enforced in accordance with the Tunisian law without prejudice to the reciprocity»

* ³⁸⁹. Ali Mezghani, Faut-il Déjà Modifier Le Code De Droit International Privé ?, Le Code Tunisien de Droit International Privé: Deux Ans Après, FSJPST, 19/04/2000, CPU, 2003, p. 164

* ³⁹⁰. Ali Mezghani, Commentaires du Code de Droit International Privé, Tunis, C.P.U, 1999, p. 193, however, Tunisian courts are required to a minimum control of the general or interne foreign competence which is limited to question of the ability of the foreign to adjudicate a claim according to its applicable law.

* ³⁹¹. Imed Bejaoui, La Règle De Réciprocité Dans Le Code Tunisien de Droit International Privé, Mémoire Pour l'Obtention du Mastère en Droit des Affaires, 2005-2006, p. 23-25