The "Enforcement Clause": A New Development in the Recognition and Enforcement of Foreign Judgments

Abstract

relatively low level during most of the nineteenth century, the recognition and enforcement of foreign judgments did not fully develop. Not until 1869 did the first modern treaty on recognition-the Franco-Swiss treaty-come into being; not until thirty years later was the second treaty-the Franco-Belgium treaty of 1899-signed. No multilateral convention to this effect was recorded. Recognition and enforcement of foreign judgments were mainly effected by the national laws of the countries concerned and were marked by cumbersomeness and heavy formalities. At common law, the original decision served only as prima facie evidence; it had to be examined by the executing court. Under the laws of France, Belgium, and Luxembourg, it had to undergo revision au fond. In Holland, except in cases expressly provided for by law, judgments of foreign courts ... cannot be enforced within the kingdom (Art. 431 of Civil Procedure Code). The twentieth century has witnessed an expansion in the area of recognition of foreign judgments. The doctrine of reciprocity came to replace the doctrine of comity. The English case of Godard v. Gray (1870) and the American case of Hilton v. Guyot (1894) both embrace the doctrine of reciprocity. So did the British Administration of Justice Act 1920 and the Foreign Judgment (Reciprocity Enforcement) Act 1933. The latter Act removed two major difficulties. Previously, a new action had to be brought upon the foreign judgment; afterward the foreign judgment had merely to be registered. Before the 1933 Act, whether a foreign judgment was accepted as conclusive depended on case law; the 1933 Act provided a statutory