The Development Of Reciprocity In Recognition And Enforcement Of Foreign Judgments In U.S.and Its Implication On China

The issue of whether to adopt reciprocity in recognition and enforcement of foreign judgments in U.S.is affected by the understanding of private international law in different times and federalism.And the trend is to reduce the factor of judicial sovereignty in adopting the reciprocity which may have an excessive effect on it.Through case law,restatement of law,uniform law and proposed federal statute,U.S.has done a great research on reciprocity of foreign judgments,which includes the definition,burden of proof and the task by Secretary of State.U.S.is going to make federal laws on recognition and enforcement of foreign judgments,which is not certain now.And at present state law still governs the recognition and enforcement of foreign judgment,with the fact that most states have revoked the requirement of reciprocity.The practice of U.S.has a positive implication on China.First,China should reduce the effect of judicial sovereignty in adopting the reciprocity and use reciprocity as a defensive tool to protect the judicial sovereignty of China.Second,considering that there are some problems on the presumptive reciprocity standard and similar law reciprocity standard(which means compare the law of two countries),it is better for China to adopt the reasonable expectation standard to decide whether reciprocity exists,which is also reflected in U.S.and other countries.Third,the party against whom the recognition and enforcement of foreign judgment is sought should bear the burden to prove that the reciprocity does not exist.Fourth,China should realize the concept of similar judgment when applying the reciprocity,which means to distinguish different kinds of foreign judgment.Fifth,it is important to asking the Supreme People's Court of China and related Chinese government branches to negotiate reciprocity agreements and treaties with other countries.Sixth,China should realize that reciprocity is only one factor in deciding whether to recognize foreign judgments.So it is necessary for China to create the complete laws on recognition and enforcement of foreign judgments.Seventh,like U.S.,it is helpful if creditor can register foreign judgment in China which will accelerate the proceedings to recognize and enforce the foreign judgment.And it will also create incentives for foreign countries to reach agreement on reciprocity with China.Finally,China should decide whether reciprocity exists between China and every state of U.S.,not the whole country.Also,when reciprocity exists,China should recognize and enforce the compensatory part of the judgment which also renders punitive damages.