Positive Elements of Recognizing and Enforcing the Foreign Judgments*
Wen-Cheng Huang**
Supervised by Prof. Remco Rhee***
In the past, we were used to explore the negative reasons of denying recognition and enforcement of foreign judgment. While, there is a question occurring in my mind-why do we need to recognize and to enforce the foreign decision? We found the two reasons in the text book in the world of common law: Obligation or Reciprocity. The former is the mainstream opinion in UK, and the latter is the prevailing reason in US. Limited to language capacity, also the reason of studying this course, I do not know the prevailing reasons in Roman family and German family.
However, using the game theory to analyze the reason of reciprocity, in terms of economic analysis, it is reasonable to predict a deadlock happening between two countries, since no one want to be the first one to actively recognize the other country's decision without a promise of consideration. And it is also the reason why we need a Convention to be a promise and the value of the Brussels and Lugano Convention in Europe.
It is also considerable to point out the defect of obligation theory prevailing in UK. Pursuant to the principle of national sovereign, the effect of the nation’s law is limited on the territory of the nation. Hence, a local court is not bound by a foreign decision.
There must be some reasons behind the judge's concern why we need to recognize in some specific circumstances. In the global age, almost all goods we enjoy are produced by the worldwide coordination of production. Big enterprises organized the whole producing activities by setting up their subsidiaries in different countries. Since each nation has his own competing factor to offer and join the part of producing process, for instance, more and more enterprises choose to set up their R & D centers in US, to manufacture their goods in China, to collect the capital in Japan, while its headquarters are in The Netherlands, it is more suitable for a big company to choose a strategy of global producing. We see the commercial activities have crossed borders, whilst the relevant rules are still limited in the territories of states. Considering global produce has become possible in nowadays, its risk has also become global, and that means each nation has faced and shared the common risk. While this common risk materializing in the real world, more and more litigations happen due to the same cause, and thus we find that it could be the convincing reason to recognize and to enforce the foreign judgment combating global risk, because each nation involved are placed in the same position of suffering the same storm caused by a global risk.
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