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

B - Full Faith and Credit Clause and Reciprocity: Effect on the Recognition and Enforcement of Sister-Judgments

The Full Faith and Credit Clause addresses the duties of the states to respect and enforce the judicial rulings rendered in any sister state of the American Federation^154(*). This means that sister state judgments must be given the same preclusive effect as they have in the state of origin subject to limited exceptions^155(*).

The Full Faith and Credit Clause «serves as a unifying element for the recognition and enforcement of judgment in [the American] system^156(*)». The clause made the duty to recognize and enforce sister state judgments obligatory. Thus, the enforcing court of a sister state should not refuse to give full faith and credit to a sister state judgment and that even on the ground that the judgment violates the public policy of the enforcing state^157(*).

However, it is important to point out that the Full Faith and Credit does not entitle direct execution in another sister state but «merely commands that states admit the public acts, records and judicial proceeding of other states as conclusive evidence and contents...^158(*)». It establishes «an ironclad rule of preclusion» since the litigated matters cannot be litigated again elsewhere. Sister state judgments continue to be considered, strictly speaking, as foreign judgments and a separate action on the debt needs to be filled by the judgment creditor in the enforcing state to have effect in another state^159(*). Despite the fact that the Constitution gave the Congress the power to enact statutes under the Full and Faith Credit Clause, issues concerning the recognition and enforcement of sister-state judgments were entirely developed by the American jurisprudence under the guidance of the American Supreme Court^160(*).

The jurisprudence on this subject confirmed that states are not always compelled to recognize and enforce judgment rendered in a sister state court. The enforcing state still can bar the recognition and enforcement of a sister state whenever the judgments did not respect the due process requirement of the Fifth and the Fourteenth Amendments^161(*). These are basically applied whenever the defendant did not receive adequate notice or an opportunity to be heard. The judgment also may be refused full faith and credit when the rendering court lacked adjudicatory jurisdiction either because the judgment was rendered without personal or subject matter jurisdiction^162(*). Rooms for denying recognition and enforcement of sister state judgments still exist especially when the court renders a default judgment^163(*).

In addition, the Full Faith and Credit does not require a direct recognition of sister state judgments. This means that common law action on debt should be brought before a court in a sister. Obviously Filling a new action on the debt is burdensome for the judgment creditor. For this reason, steps were taken to simplify the procedure of the enforcement recognition and that by the enactment of a uniform legislation: «the Uniform Judgment Money Enforcement Act». The Act ensures that judgments rendered by sister states be enforced through a summary procedure.

Nevertheless, the Full Faith and Credit Clause provides just constitutional command and ensured mutual recognition and enforcement of sister-state judgments and thus facilitates the movement of judgment among the sister states. It «rests on the belief that national unity will be promoted by requiring individual states to give effect to the judicial decision of other states^164(*)». In Milwaukee County v. M.E White Co, it was held that «the very purpose of the Full and Faith Credit Clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation may be demanded as of right irrespective of the state of its origin»^165(*).

Where such clause does not exist, steps were taken to enact legislation on the recognition and enforcement among the sister states of the federal country. This is the case for Canada where the constitutional command of the Full Faith and Credit is lacking. The Canadian Supreme Court had to alter the system of the recognition and enforcement between sister provinces of Canada. It recognized that a change in the law of judgments was needed to satisfy the specific needs of the Canadian federation in which the Constitution aims to create a single country. The Supreme, indeed, affirmed that «a regime of mutual recognition of judgments across the country is inherent in a federation^166(*)».

II - The Brussels Regime

The Brussels regime^167(*) is the best example of imposing a harmonized and communitarian scheme on jurisdiction and free movement of civil and commercial judgments among the European member states^168(*) . Unlike the Full Faith and Credit Clause, the unification of the system of the recognition and enforcement of foreign judgments is achieved through international conventions among different foreign countries.

The Brussels Regime is composed initially of a number of treaties. Those treaties were considered as tremendous accomplishment in European Community (henceforth EC) law^169(*). The Brussels Regime shows how a reciprocal judgments convention leads to a unified system between countries of different languages, culture and legal traditions (B) and this by means of establishing a single system for the recognition and enforcement of foreign judgments. (A)

* ¹⁵⁴. The section 93 of the Restatement (Second) Conflict of Law (1971) requires that the Full Faith and Credit Clause requires state courts, as a matter of constitutional law, to recognize any valid judgment rendered in another state of the Union. See Gary B. Born, International Civil Litigation in US Courts-Third Edition, 1996, p. 937

* ¹⁵⁵. 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. 93

* ¹⁵⁶. Eugene F. Scoles, Conflict of Laws, Third Edition, Hornbook Series, West Group, ST.PAUL,MINN.,2000 p.1145

* ¹⁵⁷. In Fauntleroy v. Lum 1908, the Supreme Court held that the judgment, which was based on an erroneous view of the law of the enforcing state, could not be refused enforcement on the ground that it violates the enforcing state's public policy even though the judgment was based on a misapprehension of the enforcing state's law.

* ¹⁵⁸. Symeon C. Symeonides, Wendy Collins Perdue and Arthur T. Von Mehren, citing professor Whitten in Conflict of Laws: American, Comparative, International Cases and Materials, American Case book Series, ST.PAUL,MINN.,1998, p. 756

* ¹⁵⁹. Id.

* ¹⁶⁰. 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. 93

* ¹⁶¹. The Fifth Amendment reads that «No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in Militia, when actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation ...» the Fourteenth Amendment reads that «Section 1. All persons born or naturalized in the United States, and subject to jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of law...Section 5. The Congress shall have power to enforce, by appropriate legislation, the provision of this article»

* ¹⁶². However, when a state court considers and refuses defences based on lack of jurisdiction or inadequate notice, the recognizing court is precluded from relitigating these issues. Gary B. Born, International Civil Litigation in US Courts-Third Edition, 1996, p. 938

* ¹⁶³. 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. 93

* ¹⁶⁴. Gary B. Born, International Civil Litigation in US Courts-Third Edition, 1996, p. 938

* ¹⁶⁵. 296 US. 268, 276-77 (1935)

* ¹⁶⁶. Morguard Investments Ltd v. De Savoye, 1990

* ¹⁶⁷. The Brussels Regime is a set of rules regulating the allocation of jurisdiction in international legal disputes of a civil or commercial nature involving persons resident in a member state of the European Union (EU). It has detailed rules assigning jurisdiction for the dispute to be heard, and it governs the recognition and enforcement of foreign judgements.

* ¹⁶⁸. Alan Reed, Anglo-American perspectives on Private International Law,

* ¹⁶⁹. Robert C. Reuland, The Recognition and Enforcement of Judgments in The European Community: The Twenty-Fifth Anniversary of The Brussels Convention, Michigan Journal of International Law, 1993 at www.westlaw.com.