The Principle of reciprocity in the enforcement of foreign judgments

ABSTRACT Though, the principle of reciprocity is basicly a term originated from the public international law, it has applications in both public international law and private international law. The principle is a requirement to be fulfilled in the enforcement of foreign judgments, which is in the scope of private international law, according to the Turkish laws and laws of many foreign countries. Due to the reason that reciprocity is a requirement to be fulfilled in the enforcement of foreign judgments, enforcement can be refused only because of lack of reciprocity. In this sense, there are different points of view as to whether it is true to look for reciprocity or not When the laws of some foreign countries are considered; it is seen that though the principle is not principally a requirement for the enforcement according to the laws of the USA, some states have taken it as a requirement for the enforcement. In the United Kingdom, though it is not a requirement in the scope of the "common law"; it is a requirement according to some of the statutes. Altough, it is not a requirement according to French laws; it is a requirement to be fulfilled in the enforcement of money judgments in Germany. The principle is not a requirement stated explicitly either in the Brussels Convention, Lugano Convention, Convention on the Recognition and Enforcement of Decisions Relating to Maintanance Obligations or Convention on the Recognition and Enforcement of Decisions Relating to Maintanance Obligations Against Children, which are international agreements that contain provisions related with the enforcement of foreign judgments.According to Article 38/a of Turkish law of Private International Law and Civil Procedure, the principle is a "must" for the enforcement of foreign judgments; and three kinds of the principle are determined: Conventional, de facto and de jure reciprocity. In the application aspect, the principle can play a handicap in the enforcement of the foreign judgments in Turkey. It can be claimed that conventional and de jure reciprocity does not exist between USA and Turkey; there is conventional reciprocity in the field which both are parties, between Turkey and United Kingdom, Germany and France. Also, it can be stated that there is de facto and de jure reciprocity between Germany and Turkey. When article 2 of the Turkish law of Private International Law and Civil Procedure is considered, it is seen that the judge has independently obliged to apply foreign law; and if needed to request help in this sense from the parties to the action. If this provision is considered with the article 76 of the Turkish law of the Civil Procedure, it can be reached to the conclusion that the party from whom the judge requests help should be the party who bases his claims upon that foreign law.