Title
Comity and Reciprocity in Foreign Judgment Recognition
Abstract
In 2005, the American Law Institute proposed the final draft of the Proposed Foreign Judgments Recognition and Enforcement Act Section 7 of the draft federal act introduced “reciprocity” as an independent requirement for U.S. recognition and enforcement of foreign judgments. Under the draft federal act, non-recognition and non-enforcement of the foreign judgment shall be mandatory if there be no proof of reciprocity by the plaintiff when the defendant raises the defense of the lack of reciprocity. However, “reciprocity” is essentially strategic and in conflict with “comity.” Comity, which has been function as a basis of foreign judgment recognition, is not just a moral concept but a legal theoretical concept derived from the perspectives of global efficiency and international institutional compatibility. This article provides the respective economic analysis and comparative analysis about “comity” and “reciprocity.” If the U.S. were to introduce the reciprocity requirement into the federal law, it would be adverse to the present direction of sound global legislative tendency, and further, be a serious impediment to the establishment of an international convention on this matter, considering the status and the impact of the U.S. on international legal regimes. Should the United States follow the undesirable example of the reciprocity requirement of the many countries, as the ALI’s final draft recommended? It is unchangingly up to the United States. However, it should be noted that threatening the foreign countries with “reciprocity,” ignoring their uncontrollable limits of international institutional compatibility in the foreign judgment recognition, would be very similar to "answering a fool according to his folly."
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