Zheng Sophia Tang of the Wuhan University Institute of International Law and Academy of International Law and Global Governance has an interesting post today at Conflict of Laws on a liberalization of Chinese law on recognition of foreign judgments. China, like many countries (and Massachusetts!) requires reciprocity as a condition of recognition. But China, again like some other countries, had required de facto reciprocity. It was not enough to say that a foreign court would recognize a Chinese judgment; you had to show that a foreign court had recognized a Chinese judgment. You can see how this would be a problem, especially when both of the relevant states require de facto reciprocity. “You first!” “No, you!”
Earlier this year, the Shanghai No. 1 Intermediate Court recognized a Singaporean judgment. On the one hand, Singapore had previously recognized Chinese judgments, so there was no issue about de facto reciprocity. But the Chinese court, according to the post, “justifie[d its] decision based on de jure reciprocity.” The court sought to put itself in the shoes of the Singaporean court and “imagine what may happen if this application is a Chinese judgment seeking Singaporean enforcement.” Since it found that the Singaporean court, applying Singaporean law, would enforce a Chinese judgment in that case, de jure reciprocity existed. Tang calls this approach the “equivalent condition test.” She notes that some problems still may arise, given that the Chinese court can apparently only consider “black-letter law” of the foreign country, “which may not be so precise to test de jure reciprocity.” Tang considers various alternative approaches, none of which appear entirely satisfactory.
Overall, this seems like a positive development. It’s unrealistic to expect that all countries will follow the American lead and abandon reciprocity as a requirement of judgment recognition, but if reciprocity is going to be required, it certainly seems preferable to present the court with arguments about the relevant foreign law rather than engaging in a sometimes fruitless search (believe me, I have done it!) for an unreported judgment somewhere that can satisfy the de facto reciprocity analysis.