Recognition and Enforcement of Foreign Judgments in New Zealand and Germany: the Value of a Reciprocity Requirement

Abstract

This dissertation sets out the rules for the recognition and enforcement of general foreign money judgments in New Zealand and Germany and thereby illustrates the different forms, effects and the importance of reciprocity rules in the relations between the two countries. Judgment creditors who succeed in Germany are barred from relying on the Reciprocal Enforcement of Judgments Act 1934 with its simple method of enforcement, but have to fall back on the common law rules. New Zealand judgments, on the other hand, are only enforceable in Germany, if reciprocal treatment is warranted. This is used as a point of departure to question the value of reciprocity prerequisites by using a general approach detached from specific countries. The discussion starts with the assumption that neither international law nor comity imposes a duty to recognise and enforce foreign rulings. However, the preservation of judicial resources, effectiveness and legitimacy of legal systems, and facilitation of international trade generally militate in favour of free and open recognition of foreign judgments and reciprocity requirements should therefore have a justification. Possible reasons are scrutinised in the following. It is shown that reciprocity rules run counter to international trends towards free movement of judgments and increased protection of individual rights. Furthermore, the intended benefits of providing greater bargaining power for negotiations of international treaties and of inducing foreign countries to increased recognition of judgments are revealed as supposed benefits. Objections based on the res judicata and separation of powers doctrines are followed by fairness concerns. Finally, negative secondary effects on international trade and national judicial systems are considered. The conclusion is that reciprocity requirements are not only antiquated and superfluous but even harmful and should therefore be abolished.