Generally, judgments made by foreign courts in civil cases can be recognized and enforced either if there are provisions in international treaties or based on the principle of reciprocity.
Reciprocity should be understood in the context of international civil procedure as a method of regulating interactions with foreign states in which foreign court decisions can only be recognized and enforced if the first state’s court decisions can be recognized and enforced in the state where they were issued. In this scenario, the primary goal of reciprocity is to influence a foreign state’s legal policy by imposing equivalent restrictions on its citizens’ rights. Reciprocity is founded on the concept of equal exchange (equal concessions) between equal entities.
The primary goal of guaranteeing reciprocity in international civil procedure is to influence a foreign state’s legal policy. As a result of the principle of sovereignty, the state determines the conditions for the recognition of rights obtained in another country at its own discretion.
A considerable number of nineteenth-century governments took a similar approach to the content of the idea of “reciprocity.”
In this regard, the Belgian Court of Cassation’s decision in the Beaufremont case, dated January 19, 1882, states that when deciding on the issue of recognition and execution (exequatur), Belgian courts must first establish the existence of an international treaty concluded on the basis of reciprocity. The doctrine describes a comparable method to regulating the acceptance and enforcement of foreign decisions as “conventional” or “diplomatic” reciprocity.
The main purpose of conventional reciprocity was to ensure the reciprocal nature of the concessions of the contracting States. Unilateral concessions were considered a sign of the weakness of the state in the international arena.
At the same time, the first works in the field of comparative civil procedure demonstrated that recognition and enforcement of foreign judicial decisions are permitted in some countries (mainly the Anglo-American legal family) based on the idea of duty (i.e. in the absence of an international treaty). In this instance, the rule of reciprocity was interpreted in such a way that foreign judgments might be recognized and enforced in cases where the statute or judicial practice of the state of issuance permitted so.
This is how the concepts of “lawful reciprocity” and “real reciprocity”, which are antithetical to the concept of “conventional reciprocity”, developed (in respect to circumstances where recognition and enforcement of foreign court judgments were permitted by the relevant State’s judicial practice).
The rule of ensuring reciprocity is understood variously in modern foreign legislation.
The idea of “reciprocity” in the realm of recognition and execution of foreign judgments is linked to “legitimate reciprocity” by current Russian legislator. In addition, a number of post-Soviet governments, including Georgia, Belarus, Ukraine, and Kyrgyzstan, have abandoned the international treaty as a criterion for the recognition of foreign judicial acts in favor of the reciprocity principle.
On the contrary, there is a consistent approach in Anglo-American doctrine and law enforcement practice, according to which a friendly attitude toward foreign judicial judgments is an inherent aspect of the state’s legal policy.
Some experts even suggest that “reciprocity” is one of the “universal principles of law” and / or “international customs” acknowledged by all civilized nations. It is argued in support of this thesis that reciprocity as an international law principle is established in the UN Charter’s preamble as well as the Declaration on “General Principles of International Law.” However, the allusion to these papers suggests that they are discussing “mutual collaboration” among states rather than a state’s right. Allowing the recognition of rights gained in another country, as long as the second country guarantees the recognition of rights acquired in the first (“reciprocity”).
If the many manifestations of the reciprocity principle may be conditionally categorized, the following can be stated:
- Reciprocity is regarded as possible in a number of states that have established the idea of reciprocity if there are cases of recognition and execution of judgments of the requesting state’s courts in the judicial practice of a foreign state (the example of China). That is, in each case of recognition and execution of foreign judicial acts, the courts of these states must determine whether there are cases of recognition and execution of their own judicial acts in the foreign state in question.
- Another group of states that have made the presence of a precedent for the recognition or execution of judicial acts of their own courts in a foreign state a legal requirement do not consider the absence of a precedent for the recognition or execution of judicial acts of their own courts in a foreign state sufficient reason to refuse recognition and execution of judicial acts of that state. The potential of reciprocity is determined by researching a foreign country’s legislation. To determine if there is no such reason for refusal, the courts examine the judicial practice of the state that issued the judicial act in each instance to see if cases of recognition and execution of judicial acts are documented in the state. Germany, for example, is one of these countries. The requirement to ensure reciprocity is considered met in German doctrine and in the countries that have adopted the German model of procedural law (Turkey, Japan), provided that the requirements for foreign judicial decisions in the issuing state generally coincide with similar requirements in force in the state of recognition. Foreign law shall not impose more stringent restrictions on German court decisions than those imposed by Article 328 of the Civil Process Code of 1878, according to the German doctrine.
- When determining the presence of reciprocity, the third group of States, which believes it is conceivable to recognize and execute judicial acts based on the principle of reciprocity, is led by the presumption of its existence, which presupposes reciprocity unless the reverse is shown.
The new Civil Code of the Republic of Armenia establishes two independent grounds for the recognition of foreign judicial acts. In particular, according to Article 346 of the RA Code of Civil Procedure, judicial acts of courts of foreign states rendered in civil cases are recognized, and judicial acts requiring execution are also executed in the Republic of Armenia, if such recognition and execution are provided for by an international treaty of the Republic of Armenia or on the basis of reciprocity․
If recognition and execution of a foreign judicial act depends on reciprocity, then reciprocity is considered to exist until proven otherwise. This means that in the absence of an international treaty, the principle of reciprocity applies, the existence of which, however, can be refuted. In other words, the presumption of the principle of reciprocity is valid until it is refuted. As a rule, the burden of proving the absence of repatriation is borne by the procedural opponent of the claiming party․
It should also be noted that the Armenia’s legislation provides for the recognition of foreign judicial acts in specific situations even in the absence of international treaties and reciprocity. That is, showing the lack of reciprocity during the trial does not rule out the recognition of a foreign judicial act. In particular, Armenia recognizes the following, notwithstanding the lack of an international convention or reciprocity:
- judicial acts on the legal status of persons;
- foreign judicial acts on the dissolution of marriage or the annulment of marriage between foreign citizens;
- foreign judicial acts on the dissolution of marriage or annulment of marriage between citizens of the Republic of Armenia or between citizens of the Republic of Armenia and foreign citizens or stateless persons;
- if stipulated by law – other foreign judicial acts.
Based on the principle of reciprocity, the courts of Armenia have recognized the judgments issued by the courts of France and the United States of America (state of California), as well as the Lebanese Republic, and thus the first step in recognizing the judicial acts issued by the courts of Armenia in these countries has been completed.