Academic journal article Houston Journal of International Law

Turnabout Is Fair Play: Why a Reciprocity Requirement Should Be Included in the America Law Institute's Proposed Federal Statute

Academic journal article Houston Journal of International Law

Turnabout Is Fair Play: Why a Reciprocity Requirement Should Be Included in the America Law Institute's Proposed Federal Statute

Article excerpt

  I. INTRODUCTION

 II. HISTORICAL DEVELOPMENT OF FOREIGN JUDGMENT
     RECOGNITION AND ENFORCEMENT IN THE UNITED
     STATES
     A. Common Law Development
        1. Hilton v. Guyot
        2. Johnson v. Compagnie Generale
           Transatlantique
        3. Erie R.R. Co. v. Tompkins
     B. Reciprocity in State Law
        1. The Uniform Foreign Money-Judgments
           Recognition Act
        2. Restatement (Second) Conflict of Laws [section] 98
        3. Restatement (Third) of The Foreign Relations
           Law of the United States [subsection] 481-482
        4. Summary of Existing State Law
     C. The International Landscape: A Need for and Lack
        of International Agreements on Recognition and
        Enforcement
        1. United Kingdom-United States: Convention on
           the Reciprocal Recognition and Enforcement of
           Judgments in Civil Matters
        2. The Hague Convention on Jurisdiction and the
           Effects of Judgments in Civil and Commercial
           Matters
     D. The ALI's International Jurisdiction and
        Judgments Project

III. THE RECIPROCITY DEBATE
     A. Arguments Against Including the Reciprocity
        Requirement in the Draft Statute Rely Too Heavily
        on Domestic Precedent and Fail to Adequately
        Consider the Long-Term Effects of the Change
        1. The Lack of Precedent
        2. Legal and Fairness Principles
        3. Secondary Considerations
     B. Arguments in Favor of Reciprocity Support its
        Inclusion in the Draft Statute
        1. The United States Needs to Create Incentives
           for Foreign States to Enter Meaningful
           Negotiations for an International Judgments
           Recognition Treaty
        2. The Reciprocity Requirement Will Improve the
           Recognition of U.S. Judgments Abroad
        3. Turnabout is Fair Play

 IV. CONCLUSION

I. INTRODUCTION

One can hardly debate the fact that the United States is a vital player in a global economy that is becoming more global every day. In 2003, the value of worldwide exports was $7.294 trillion and the value of worldwide imports was $7.569 trillion. (1) This represents a 16 percent increase over 2002 for both imports and exports. (2) Likewise, in 2003, the United States ranked second among worldwide merchandise exporters with a total value of $723.8 billion, representing 9.6 percent of the global exports and a 4 percent increase over 2002 exports. (3) In addition, the United States ranked first in merchandise imports with over $1.3 trillion in merchandise representing 16.8 percent of the global market and a 9 percent increase over 2002. (4) International trade is growing rapidly, and the United States is a major factor in this growth.

The astounding volume and growth of international trade has heightened the importance of uniform, efficient, and predictable recognition and enforcement of judgments rendered by sovereigns in this global economy. (5) The impact of judgment recognition and enforcement has been summarized as follows:

   Traders seek the security provided by the enforcement
   of legal rights and the provision of an adequate remedy.
   Accordingly, without secure means by which that
   remedy may be given effect, exporters may undervalue
   the gains from trade. Consequently, they may fail to
   take advantage of trading opportunities that would
   otherwise be socially beneficial, taking into account
   both the gains for individual traders and the benefits
   that would flow to third parties. At the same time, the
   inability of importers to vindicate their legal rights
   through the effective enforcement of judgments would
   also distort incentives for trade, leading exporters not to
   appreciate fully the costs of their activities and
   encouraging them to exploit trading opportunities that
   would be better left unrealized. (6)

The purpose of this Comment is to examine the wisdom of imposing a requirement of reciprocity in the Proposed Foreign Judgments Recognition and Enforcement Act drained by The American Law Institute's International Jurisdiction and Judgments Project. …

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