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Reciprocity: A Toothless Tiger?

Reciprocity has been a part of the ever-expanding field of Private International Law. Many countries still choose to enforce reciprocity. An important question to be asked is whether an absence of the principle of reciprocity mean a fair recognition and enforcement of judgements. Beligh Elbalti in his paper “Reciprocity and the recognition and enforcement of foreign judgments: a lot of bark but not much bite” has at length examined the recent developments in areas of law related to the principle of reciprocity. Through this paper the author is trying to understand the complications that might still exist in the absence of reciprocity and the magnitude of this trend of people moving away from reciprocity.

Beligh Elbalti has given an overview of recent developments surrounding the principle of reciprocity and enforcement of foreign judgements today. Elbalti claims that reciprocity is no longer a condition that significantly precludes recognition and enforcement of judgements. Although, reciprocity hasn’t been completely abolished however, it is now sufficient to show that the courts in the state where the judgment was issued are likely to acknowledge and enforce judgments from the state seeking enforcement, thus relaxing the conditions for the same. Elbalti in great details references to advancements in various jurisdiction which have stipulate the redundancy of reciprocity whereby some legal systems are evolving to make reciprocity an additional requirement for the recognition and enforcement of foreign judgments. According to Elbalti, there have been additional developments even in jurisdictions where reciprocity used to be a legal ground for recognition of judgements[1]. However, even Elbalti himself agrees that there are still jurisdictions where reciprocity proved to be a serious impediment and has barred the recognition of foreign judgments[2].

Elbalti has at various points indicated that reciprocity is a ‘hindrance’[3] obstacle in the way of enforcement and recognition of judgements. Elbalti’s concerns surrounding the same are valid. To understand these concerns, one needs to look at Reciprocity specifically from the eyes of application in the field of Private International Law.

The enforcement and recognition of any judgement should be on the basis of the merits like has the due procedure of the law been followed or the decision’s reasoning is legally sound, etc. and not on a principle that was basically developed to cater to the needs and demands of the politico-legal world of International Affair[4]. The critique majorly arises from two grounds - firstly, Private International Law deals with the matters of two individuals in their “private” capacity and not as a state, thus reciprocity in no way is going to benefit the two individuals and their aim of resolution of dispute and justice done to the aggrieved party. To follow the principles of reciprocity in private international law is to decide private controversies upon considerations of inter-governmental diplomacy[5]. When it comes to reciprocity it merges the two basing its decision on treaties or any other instruments between the two nations which are a direct result of the relationship between two countries and not the relationship of one Private Individual with another. Lack of reciprocity is a political rather than a legal question[6]. Secondly, reciprocity could lead to a unanimous non-recognition and non-enforcement of judgements which means it fails to differentiate the high calibre from the mediocre, as a court's quality isn't contingent on its stance regarding recognizing other courts judgments[7]. Any judgement that has been very diligently pronounced keeping in mind the legal principles and settled aspects of law, can still be rejected on the mere grounds of a lack of a treaty or disputes between the people of the country which in turn defeats the purpose of international law which according to Hugo Grotius was to create a coherent legal framework that could effectively resolve conflicts, facilitate international trade, protect parties' rights, ensure legal predictability, and balance the interests of sovereign nations in the realm of transnational legal interactions[8].

Another critique arises from the fact the current world through its trade and commerce mostly has been globalised to make countries more connected or prone to relate to each other through business. But if countries depend on reciprocity, then there might be a stalemate situation between two countries if reciprocity is a sine qua non between the two countries. For example, recently, Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., 2021 NY Slip Op 31459(U)[9] was a contractual dispute and was adjudged accordingly by the Chinese Courts. The legal actions in China stemmed from a claim of breaking a contract. The agreements in question were regulated by PRC (People's Republic of China) law and included a clause indicating that any disputes could be settled through a lawsuit in a suitable court located in Haidian District, Beijing[10]. The Judgement was in the Plaintiff’s favour. But when it came to the enforcement of the judgement in New York the defendant argued that the Chinese judgment “was rendered under a system which does not provide impartial tribunals or procedures”[11]. The court agreed with the defendant’s assertion[12]. If upheld on appeal, this ruling could be used as a precedent for no Chinese judgment would ever be enforceable in the state of New York. As stated by Elbalti, China only recognises judgement based on reciprocity[13]. Situations like these could clearly be avoided by avoiding reciprocity in general.

Elbalti has stated two ways through which multiple countries have started letting go of reciprocity. One of these ways is by making it a part of the Statutes of the Country which makes it an established principle that needs to be abided by a few of these countries as stated by Elbalti are Venezuela (in 1998), Lithuania (in 2002), Bulgaria (in 2005) etc[14].  In fact, countries like Venezuela have completely abolished reciprocity from their laws[15]. In Venezuela for enforcement of a foreign court judgments in Venezuela requires obtaining the appropriate exequatur from the Supreme Court[16]. The Supreme Court in Venezuela can refuse to grant exequatur for a foreign court judgment if it a) deprived Venezuelan courts of jurisdiction; b) violates Venezuelan public policy, or if due process wasn't followed; c) such as lack of defendant notification or denial of the right to defence[17]. Additionally for countries like Poland which has also abolished reciprocity, judgments issued outside EU member states are subject to formal procedures[18]. It can be clearly said that theses countries through their legislations have abolished reciprocity and are moving forward with a more liberal method of recognizing and enforcing judgements. A step in this direction does help in free circulation of judgments or the respect of the parties’ private interests[19].

But in either of the two situations there is scope for an argument even the countries which are letting go of reciprocity aren’t entirely recognising and enforcing other countries judgements. US is the biggest example of this, the Supreme Court as early as 1885 in Hilton v. Guyot, had held reciprocity as a precondition to foreign-country judgment enforcement[20]. This judgement although never overruled, has little influence in judgment recognition and enforcement practices[21] because throughout the US there was an extreme critique of making reciprocity the sine qua non while recognising and enforcing judgements. So, it can be concluded US in practical reality is not following reciprocity. However, when it comes to countries like China the US is very clearly not recognising the judgements rendered by Chinese courts and vice versa. Article 281 of the Civil Procedure Act of China delineates the process, stating that foreign courts or individuals seeking to enforce foreign judgments can submit an application for recognition and enforcement to the intermediate people's court having appropriate jurisdiction[22]. Article 282 of the CPL lays down substantive requirements for recognition-that the foreign judgment is legally effective, that recognition is supported by an international treaty or the principle of reciprocity, and that the judgment does not violate Chinese public policy[23].

But as suggested by Mark Jia, courts are likelier to reject forum non conveniens arguments or to make ‘inadequacy’ determinations when the alternative forum is not a liberal democracy[24]. One of the reasons for the same is the fear of the Political leaders dictating Judgements to the judges. In fact, a scholar, Anne-Marie Slaughter, suggested that when dealing with authoritarian regimes such as China, “the convergence of fundamental ideological differences, the looming possibility of actual military confrontation, and the challenges associated with engaging in meaningful judicial discourse might lead the courts of democratic nations to view legal matters involving non-democratic states as effectively outside the realm of conventional legal resolution”[25]. According to Anne Marie this is the primary motivation behind “liberal” democracies like US in rejecting judgements of countries like China. There have been multiple instances where America has raised questions on the legitimacy of judgements issued by China. In the Global Case[26], the defendant contended that assessing the fairness of the particular legal proceedings in China required a thorough examination of facts and evidence, asserting it should not be determined solely based on initial pleadings, which represent a pre-trial phase. The court concurred that fairness indeed hinged on factual elements but emphasized that the pivotal consideration should be on evaluating the comprehensive procedural aspects within the Chinese judicial system[27]. U.S.’s accusations aren’t completely wrong because the CCP exercises its control over the judiciary through a variety of institutional channels. Among these are the Party’s Political-Legal Committees (PLCs), which exist at various administrative levels of the party-state[28]. Additionally, since no international treaty on the recognition of judgments between China and the United States currently exists, the recognition of US judgments in China must rely on reciprocity under Chinese domestic laws, in fact, a Chinese court first reciprocated in 2017 by recognising a US judgement after US recognised one in 2009[29]. Coming back to the Kashi Judgement by allowing the non-enforcement the court has also ruled on the merits on which the judgement was made. Some of these merits argued upon included States Report and research of scholar indicating that Chinese Courts did receive interference from the political machinery[30]. The court while giving the judgement for the Defendant admissed the State’s report that were used to illustrate the bias of the political systems as evidence, thus, giving it a stable ground to stand at and thus making it something that can be used in further hearings. But these State reports against China are politically motivated provided the hostility between the two countries. Despites the plaintiffs arguments that previously Chinese Judgements have been enforced in previous instances too like Qiu v. Guan[31] and Robinson Helicopter [32], additionally both the parties agreed to choosing China as the jurisdiction in case a dispute arose[33]. But going against all these arguments the NY Court ruled against the plaintiffs. According to Donald Clark this judgement is highly unfavourable for the following two reasons - first, the court[34], evaluated the Chinese legal system as a whole and identified substantial deficiencies[35]. Second, the court regarded State Department reports on China as definitive evidence of their contents. This elevated the reports from being merely ordinary evidence to being conclusive, allowing consideration at the dismissal stage before the trial, rather than during the trial alongside other evidence presented by both parties[36].

The case of US-China is being used to assert the point that there are jurisdictions like US which don’t follow the principle of reciprocity (with only six states making reciprocity a requirement[37]) and yet are using reasoning like the one used in the Kashi Judgement to not enforce and recognise foreign judgements. The reasoning behind these could be related to International Affairs provided one of the pieces of evidence used in the judgement was the State Department’s report based on which the whole Judicial System of China has been declared as biased and this precedent can be used as precedence for future judgements and influence a court using politically motivated document. This is a problem which reciprocity or an absence of reciprocity doesn’t deal with. It will exist in jurisdictions in which reciprocity is even abolished like Venezuela etc. all the one’s that’s mentioned by Elbalti.

An argument can be made that this is just applicable to countries like U.S., China only but the reason that these countries matter is because of how significantly they contribute to the International Economies which directly means business relations between the two and their applications, because the whole point of judgement recognition and enforcement is to undo the wrong that has been caused to the parties because of the contract going South and without judgement enforcement there is no point in having a judgement decreed in a particular party’s favour. A lack of reciprocity is supposed to further the enforcement of these judgements but if there is still restraint going to exist on the enforcement of judgements due to socio-political reasons then it will impede this recognition and enforcement. It can be argued that US-China is a one of situation which is a unique problem but the fact that these two economies are the top 2 biggest economies in the world with a lot of business between the two is something that one hasn’t considered[38]. China has similar relations with Japan too where China and Japan have continued to be stuck in a bitter reciprocity feud, with neither side willing to break the vicious circle by taking the first step to recognize the other's judgments[39]. But the point here is that the presence or absence of reciprocity cannot be used to make up for the lack of a better working relationship between the two. Reciprocity might be useless but even after removal of reciprocity it can’t be guaranteed that there will be a proper enforcement of judgements if the US-China relationship is to be considered as a reference point. As suggested by Elbalti the end of reciprocity might not solve the problems that arise from the core of the relations between countries.

Another point to consider is that the fact that Ellbalti has given examples of several countries that might have through national legislation or established case law but a lot of the countries have not let go of reciprocity in some form or the other. In fact, the U.S.’s ALI is bringing back reciprocity in form of federal laws[40] which will further promote reciprocity as a principle which is already being followed by the major countries like India, China, Russia and Japan. of reading reciprocity back into its statute so, it might actually start biting countries. Additionally, reciprocity might have been abandoned by a few countries but there are many major players who have not yet abandoned it, and this would complicate things further. Example of “relaxed” reciprocity requirement is a “safety valve” which protects the sovereignty of a country is something that various countries are upholding even without upholding the requirement of reciprocity. Even the example of US when it comes to recognising and Enforcing judgements of China is a quest to protect its Sovereignty, this quest at least arises from the need to protect the Sovereignty of their country in case of a tensed relationship or an overpowering judgement but the Kashi case situations can arise in case of Tunisia too in case any country’s relationship soured with Tunisia and their Government starts publishing reports on how another country is hampering the Sovereignty of Tunisia.

In conclusion, this essay seeks to make two main claims. First of all, it draws attention to the diminishing importance of the reciprocity principle as some nations turn away from it, however, the difficulties that reciprocity formerly posed are still there, and a number of factors still affect how judgments are recognized and enforced. Second, contrary to what Elbalti claimed, the study emphasizes that the growing number of nations abandoning or considering abandoning reciprocity does not render it meaningless. Notably, reciprocity is maintained or being moved toward by nations like China, Russia, and the US, having a significant impact on the practice of private international law.

[1] Béligh Elbalti, 'Reciprocity and the Recognition and Enforcement of Foreign Judgments: A Lot of Bark but Not Much Bite' (2017) 13:1 Journal of Private International Law 184-218

[2] ibid 188.

[3] ibid 201.

[4] Louisa B. Childs, 'Shaky Foundations: Criticism of Reciprocity and the Distinction between Public and Private International Law' (2005) 38 NYU J Int'l L & Pol 224.

[5] Recent Decisions, Conflicts of Laws: Doctrine of Hilton v. Guyot, 26 COLUM. L. REV. 892, 893 (1926).

[6] Arthur C. Rounds, 'Injunctions Against Liquor Nuisances' (1896) 9 Harv. L. Rev. 521, 530.

[7] Louis B. (n 1)

[8] Hugo Grotius and W. S. M. Knight, De Jure Belli Ac Pacis: Libri Tres Selections (Sweet & Maxwell, 1922).

[9] Zhanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., [2021] NY Slip Op 31459(U).

[10] Donald Clarke, 'Judging China: The Chinese Legal System in U.S. Courts' (2023) 44 U Pa J Int'l L 455.

[11] Zhanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., [2021] NY Slip Op 31459(U).

[12] William S. Dodge, 'Decision Denying Enforcement of Chinese Judgment Threatens Reciprocity' (New York Law Journal, 21 June 2021)

[13] Beligh, 201.

[14] ibid, 187.

[15] ibid, 187.

[17] ibid.

[18] Beligh, 188.

[19] A. Bucher, Loi sur le droit international privé – Convention de Lugano (Helbing Lichtenhalm, 2011) 339.

[20] Hilton v. Guyot, 159 U.S. 113, 113-23 (1895).

[21] Louisa B. 225.

[22] Civil Procedure Law of the People's Republic of China, 1991.

[23] Civil Procedure Law of the People's Republic of China, 1991.

[24]Mark Jia, 'Illiberal Law in American Courts' (2020) 168 U Pa L Rev 1685, 1687..

[25] Anne-Marie Burley, 'Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine' (1992) 92 Colum L Rev 1907, 1921.

[26] Glob. Material Techs., Inc. v. Dazheng Metal Fibre Co., No. 12 CV 1851, 2015 WL 1977527, at *8 (N.D. Ill. May 1, 2015).

[27] Glob. Material Techs., Inc. v. Dazheng Metal Fibre Co., No. 12 CV 1851, 2015 WL 1977527, at *8 (N.D. Ill. May 1, 2015).

[28] Donald (n 10).

[29] Hubei Gezhouba Sanlian Indus. Co. v. Robinson Helicopter Co., No. 2:06-cv-01798-FMC-SSx, [2009] WL 2190187, at *6 (C.D. Cal. July 22, 2009).

[30] Donald (n 10).

[31] Qinrong Qiu v. Hongying Zhang, No. CV 17-05446-JFW (JEM), 2017 WL

10574227 (C.D. Cal. Oct. 27, 2017).

[32] Robinson (n 29).

[33] Donald (n 10).

[34] Zhanghai (n 9).

[35] ibid.

[36] Donald (n 10).

[37] William S. Dodge & Wenliang Zhang, 'Reciprocity in China - US Judgments Recognition' (2020) 53 Vand J Transnat'l L 1541.

[38] Forbes India, 'Top 10 Largest Economies in the World in 2023' (Forbes India, 13 September 2023) accessed 10 October 2023.

[39] Beligh (n 1).

[40] Donald (n 10).

Author: Devansh Singh

University and Year: Jindal Global Law School, 3rd Year

Programmee: B.A. LL.B


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