International Litigation and the Quest for Reasonableness: Essays in Private International Law

By Andreas F. Lowenfeld | Go to book overview

6
Recognition and Enforcement of Judgments

A. INTRODUCTION: STATING THE PRINCIPLE

Should judgments be purely territorial, with no effect outside the rendering state? I did not believe anyone today would take that position, until I learned that, absent a treaty, that is the law in as generally enlightened and internationalist countries as the Netherlands, Norway, and Austria.1 Clearly, the better view, if not yet the view required by international law, is that at least some judgements from some other states ought to be recognized and enforced, to establish the security of contracts, promote commercial dealings, and generally further the rule of law among states that are interdependent as well as independent.

The framers of the American Constitution believed that requiring recognition and enforcement--full faith and credit was their term--of judgments of one state of the United States in all the other states was essential to establishing what they called a 'more perfect Union' out of what were, and to some extent still are, separate sovereign states.2 The framers of the European Community, long before their successors aspired to the word 'Union', believed that it was essential to creating a common market that its members agree on conditions under which judgments rendered in one Member State would be recognized and enforced in all the other Member States. From this decision, recorded in Article 220 of the Treaty of Rome, came what we now know as

____________________
1
Austria: Exekutionsordnung, §§79-85; Fasching, Lehrbuch des österreichischen Zivilprozessrechts ( 1984), ¶ 1511.

Netherlands: Code of Civil Procedure, Art. 421(1). For the statement that in practice Netherlands courts do often recognize foreign judgments, even when they are not required to do so, see Kokkini-Iatridou and Verheul, "'Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters'", in Netherlands Reports to Twelfth International Congress of Comparative Law ( 1987), 189.

Norway: Act of Aug. 13 1915 relating to judicial Procedure in Civil Cases, §§167-8, Norges Lover 1685-1983 ( 1984), 591.

2
See U.S. Constitution, Art. IV, § 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

See also the Preamble to the U.S. Constitution: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility . . . and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

-109-

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