Contratto ImpresaEuropa - Cedam

654 CONTRATTO E IMPRESA / EUROPA
The conditions for the recognition and enforcement are those provided
by French general principles of Private International Law, as set forth by
the Munzer vs. Munzer ( 11 ) and Fairhurst vs. Simitch ( 12 ) cases.
The Munzer case marked the abandonment of the “revision” of foreign
decisions, whereby French courts used to refuse to recognize a foreign
judgement if they would have reached a different solution, whether in fact
or in law. Such method, which obliged parties to retry their case, was contrary
to the internationalist spirit, which now characterises French Private
International Law.
The policy lying behind Munzer is that the foreign judgement deserves
respect as such. Indeed, it now suffices for the foreign judgment to be recognized
and enforced in France that the five following conditions be met:
(I) the foreign court must have indirect jurisdiction over the case (« compétence
indirecte »), which condition has, as we shall see, been substantially
alleviated by the French Supreme Court in the Simitch case; (II) the foreign
proceedings must have been conducted in a regular manner; (III) the
foreign judge must have applied the law designated by the French rules
on conflicts of laws; (IV) the foreign judgment must not be contrary to
the French conception of international public policy; and (V) the foreign
judgment must not have been obtained by fraud.
We will analyse in turn each of those conditions, as applied to the hypothesis
of a U.S. Class action judgement.
2. – The U.S. Court’s Indirect Jurisdiction
French case law used to require, as a condition for recognition, that
the foreign court have jurisdiction over the case according to the French
rules of conflicts of jurisdiction. Such test has been substantially alleviated
in Fairhurst vs. Simitch ( 13 ), whereby the Supreme Court held that the
foreign court's requirement of indirect jurisdiction is satisfied if the three
following conditions are met: (A) the case does not fall within the exclusive
jurisdiction of a French court, (B) the case is linked in a « characterized
manner » («lien caractérisé ») to the foreign forum, and the choice of
( 11 ) Cass. Civ., 1 st Sect., 7 January 1964, Munzer vs. Munzer, Grands arrêts du droit international
privé, in Dalloz, 4th Ed., 2001, p. 367 ss.
( 12 ) Cass. Civ., 1 st Sect., 6 February 1985, Fairhurst vs. Simitch, note by Ancel and Lequette,
Grands arrêts du droit international privé, in Dalloz, 4th Ed., 2001, p. 638 ss.
( 13 ) Cass. Civ., 1 st Sect., 6 February 1985, Fairhurst vs. Simitch, note by Ancel and Lequette,
Grands arrêts du droit international privé, in Dalloz, 4th Ed., 2001, p. 638 ss.