Conclusion of Part II
The ALI proposed reciprocity is the consequence of a unique
situation of the United States with respect to the recognition and enforcement
of foreign judgments. The Americans have the feeling that their grant of comity
has not been rewarded reciprocally. As a result, they started looking for a
solution to secure the recognition of their judgments abroad. We could address
the rejection of the notion through the American scholarship and the reasons
for its rejection. In the same time, we could address the reasons that are
behind the reintroduction of the notion in the field of the recognition and
enforcement of foreign judgments.
The ALI proposed reciprocity represent a new approach to the
recognition and enforcement of foreign judgments in an era that is
characterized by the interaction, globalization and the need of harmonization.
For these reasons, the ALI has taken all these aspects into consideration when
it has addressed the problem of the non-reception of American judgments abroad.
Based on securing national judgments along with making the first step by
signalling cooperation, the reciprocity may have an effective effect in
ensuring global recognition and enforcement of judgment. It is not the unclear
and imprecise reciprocity, but the framed reciprocity which tries to solve the
problems of the applicability of the notion.
On the other hand, the drafters of the proposed federal
statutes used reciprocity in order to make foreign countries accept American
standards. There is a refusal to align the American legal practice with the
international standards. The idea of the ALI is that American courts will
continue to grant comity to but use negative reciprocity as a defence for the
non recognition of foreign judgments. This conception may work between
countries that share common standards and that are willing to push their
cooperation. However, it is far from being helpful for the Americans because
their system presents many differences as concerns what is considered
acceptable standards. The failure of the Hague convention can provide a good
example of what was advanced.
Consequently, the ALI's proposed reciprocity will not work for
the United States for the simple reason that the judgments recognition system
in the United States includes concepts that are strange for civil law and for
common law countries. In addition, the United States showed its refusal to
change its own legal system especially with respect to the assumption of
jurisdiction by American courts. Therefore, even with the reciprocity
requirement in its law, foreign countries will continue to refuse judgments
affording unreasonable non-compensatory amount of damages awards or based on a
broad or exorbitant bases of jurisdiction. However, for ordinary judgments, it
is expected that they may not find resistance since they would be compatible
with foreign legal systems. To conclude, there is no other choice for the
United States but to align its standards on the international accepted
standards for the recognition and enforcement of foreign judgments.
Finally, despite the change of the rational for the
application of the reciprocity, it continues to have the same negative impact
on judgments recognition practice, litigants and the international movement of
people and goods. This subsistence of these negative impact reflect the
non-compatibility of the notion with the spirit of the recognition and
enforcement of foreign judgments.
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