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To say with Foelix, whom Calvo proceeds to cite with approbation, that when legislators, public authorities, Courts, and text-writers accept the application of foreign laws they are not acting “in conformity with a duty, or an obligation of which the fulfilment might be exacted, but ex comitate, and ad reciprocam utilitatem," seems to us a truism : nevertheless it is one which may as well be stated. It cannot be more than a question of comity, but it may well be also a question of interest, and it may be that interest is pointing in the direction of greater readiness in recognising Foreign Judgments.
Fiore* considers there are four principal systems prevalent in the matter of this recognition, and that they are more or less strict according to the various modes of estimating the juridical relations between States, and the foundation for the authority of the judgments.
I. The first and “ least liberal” system, he says, denies all effect to the sentences of foreign Courts, because it considers isolation as the rule of international relations, and considers the authority of the sentence, founded on the Civil Law of the country in which it was pronounced, to be as much territorial as that of the law itself.
Under this system, says Fiore, the Foreign Judgment comes to be considered either as non-existent, or as passing under review of the magistrate of the country where it is desired execution should be given, in which case he is of opinion that the authority of the res judicata is disallowed.
II. The second system, continues Fiore, while recognising that in strictness the authority of a judgment should be territorial, admits that a Foreign Judgment may, under reciprocity, be allowed efficacy for the common good (utilità), and by International Comity.
This is clearly Heffter's “ ex Comitate, ad reciprocam utilitatem.” Its force would depend, as Fiore goes on to
* Op. cit. (Pp. 9.11.)
show, upon Conventions sanctioning the obligation of reciprocity, and might therefore be called the Conventional system.
III. The third system Fiore dismisses in a very few words as one which by sanctioning disparity of juridical condition even in this matter, between citizens and aliens, admits essentially different principles according as the Foreign Judgment is sought to be enforced against a citizen or an alien. We should perhaps not be far wrong, as regards Fiore's estimate, if we were to call this the illogical system.”
IV. The fourth system admits the extra-territorial force of a Foreign Judgment to the extent of allowing the exceptio rei judicatæ to be based upon it. But as regards the executory force of such a sentence this system does not allow equal weight to the judgment of a foreign Court and to its own, though it allows the local magistrate to decree the execution of a Foreign Judgment, if it possesses all the legal guarantees which may rightfully be demanded before such execution be conceded. This system Fiore allows to be at once the 'most rational and liberal," yet it is one under which many questions may and do arise concerning the conditions for admitting the authority of the Foreign Judgment, as well as concerning the conditions for its execution, and the consequences flowing from such execution.
Hence after all our elaborate systems of classification, we still find ourselves on the threshold, and only on the threshold, of numerous questions of international variance which are yet a long way from receiving an international settlement. The importance of the subject is not disputed and the fact is shown in its selection as one of the questions for discussion at the approaching London Conference of the Association for the Reform and Codification of the Law of Nations. A very practical mark of the importance attaching to it has been given to this question in Belgium, by the immediate publication of that portion of the new Code of
Civil Procedure [Book I., Title I.] which is concerned with Competence, and deals with Foreign Judgments.
In this Book the following rules are laid down* :
“ Art. 8. The Courts of First Instance have cognisance of all causes, except those within the jurisdiction of Justices of Peace [juges de paix], Tribunals of Commerce, and Councils of 'Prud'hommes.'
" Art. 9. The Courts of First Instance have cognisance, in addition, on appeal in the matter of judgments given in First Instance by the Justices of Peace.
“ Art. 10. Lastly, they have cognisance of judgments given by foreign judges in Civil and Commercial cases. If a Treaty on the basis of reciprocity be in existence between Belgium and the country in which such judgment has been given, the examination shall bear only on the five following points :
1. Whether or no the judgment contain anything contrary to public security, or the principles of the Public Law of Belgium ;
“ 2. Whether the judgment has obtained the force of a ‘res judicata' according to the law of the country in which it was given;
3. Whether the copy of judgment produced be duly authenticated according to the law of the said country;
“ 4. Whether the defendant's rights have been duly respected;
“5. Whether or no the Foreign Court be the only competent Court by reason of the nationality of the plaintiff.”
On this last point, the editor of the Belgian Code, in the “ Annuaire de Législation Etrangère," from which we cite it, M. Cortot, "Avoué” at the Tribunal of the Seine, explains in a note, “ Execution must always be demanded at the hands of the Civil Court, whether the judgment proceed from a Tribunal of Commerce or from any other
* We translate from the text published in the “ Annuaire" of the Society of Comparative Legislation for 1877, p. 470.
Court.” He further observes, “ If no Treaty exists between Belgium and the country where the [foreign] judgment was given, the Belgian judge is bound (a la mission) to review the entire cause of dispute (le fond du litige).” This statement of the law is worthy of careful remark, for it opens to the Belgian Court of First Instance the position of a Court of Review in the matter of Foreign Judgments,
“ ex hypothesi," be the judgments of a Superior Court in the foreign country. And this fifth point in the new Belgian Code seems the more worthy of remark that it was evidently an addition to the original draft. In the summary of the proceedings in the Belgian Chambers during the Session of 1874-5, contributed to the “ Annuaire de Législation Etrangère,” for 1876, by M. Oulif, Advocate of the Court of Appeal, Paris, we find that only the first four points were then before the Chambers, their text, as printed in 1876, being identical with the text as it passed into law in the subsequent Session, with the exception of the absence of the fifth provision. Under the circumstances, we should have been glad of some account of the reasoning which induced the Chambers to make this addition, and we should think the point might well form the basis of a Paper before the Society of Comparative Legislation, if possible by a Belgian member. In Belgium itself, it is worthy of remark, the new Code of Civil Procedure, so far as hitherto published, has aroused severe criticism from the pen of a distinguished professor, M. Laurent, of the University of Ghent,* the author of “ Principes de Droit Civil.” And in the course of his criticism, the learned professor argues two points with especial warmth against the new Code ; firstly, that the exclusion of the Magistracy from the Corps Législatif in Belgium has damaged the utility of the ordeal of discussion through which Bills have to pass in the Chambers; and, secondly, that the too incisive logic,
* Published in the “ Journal de Droit International Privé.” Paris. 1877. p. 496.
and too scholastic sublety of thought of its principal author, M. Albéric Allard, have left a strong mark on the Code. M. Allard was, indeed, as M. Laurent takes pains to set forth, a Jurist of high intellectual distinction, all too soon lost to science by his early death. But the bent of his mind, which led him to see in the Code Napoléon only a “Memorial of Conquest,” was very likely to lead him into extremes in the revision which was entrusted to him, a revision, M. Laurent fears, tending to " deformation rather than reformation.” On this particular point, however, of the erection of the Belgian Court of First Instance into a Court of Review of Foreign Judgments, M. Allard is not responsible. He had said in his Report to the Chambers that to proceed to this review would be to “confound executory force with the authority of res judicata, Imperium with jurisdictio." He had also characterized such a proceeding as “impolitic,” and “contrary to the principles of International Law.” It was the Committee of the Chambers which thought otherwise, and which decided the course of the new Belgian Legislation. Before the Law of 18th Decr., 1851, it would seem that no force whatever was allowed to a Foreign Judgment in Belgium, unless it had been previously declared executory (Fiore, op. cit. p. 20). And at the same time the question was discussed, without being decided, whether Foreign Judgments should be reviewable on their merits. Opinion on this point remained divided, so that it was possible for some writers to maintain that they could be declared executory without review, while yet the Belgian Court of Cassation had, in 1849, laid down the opposite doctrine. In the case of French Judgments, there was no doubt, it is said, that Belgian Law required their review, in terms of the Rescript of King William I., 9th Sept., 1814.
The existing Dutch Legislation seems to allow no force to Foreign Judgments save in certain cases expressly provided for (Code Civ. Proc. Art. 431). But the Government,