Contratto ImpresaEuropa - Cedam

660 CONTRATTO E IMPRESA / EUROPA
wishes to preserve its right to the privilege of jurisdiction to expressly invoke
Article 15; a general denial of the jurisdiction of the foreign court
will suffice to preserve his right ( 32 ). There may be some uncertainty, however,
when the objection to the U.S court’s jurisdiction is raised in a restrictive
way, exclusively with regard to the subject matter of the dispute
and not with regard to the foreign court’s personal jurisdiction.
In respect to the absent class members, the question is more complex.
The issue will be whether, by remaining silent after having received notice of
the action, the absent class member waived its right to the “exclusive” jurisdiction
of French courts, as provided by Article 15 of the French Civil Code
against non-E.U. defendants ( 33 ). This question is debatable. The situation
of an absent class member could be compared to that of a defendant who
failed to appear before the court. French case law is, however, divided on the
issue of whether the failure of a defendant to appear before a foreign court is
equivalent to a waiver of its privilege of jurisdiction. The Paris Court of Appeal
replied affirmatively to that question in a 30 January 1975 decision ( 34 ),
then overruled by a Supreme Court’s decision dated 5 May 1976 in the same
case ( 35 ), while the Paris Tribunal (which is authoritative in international
matters) again ruled in the affirmative in a subsequent case ( 36 ). However,
considerations of good faith should lead to consider that a person who received
notice of the action and failed to react – for example, in the hope that
the action may prove beneficial – should not be allowed to oppose the
recognition of the U.S. judgment. Ultimately, it is the French court’s assessment
of the effectiveness of the notice, which is likely to determine its decision
in respect of the recognition in France of the U.S. judgment.
B. The Link Between the Dispute and the United States
Under Simitch, it is sufficient for the U.S. court to have jurisdiction
that there be a «characterized link » between the case and the foreign forum
seized (i.e. the United States), irrespective of the fact that another
court may also have jurisdiction on the same facts.
Sect., 15 November 1983, Schenk vs. Banque Nationale d’Algérie, n° 82-12626; Cass. Civ., 1 st
Sect., 15 November 1994, X vs. Y, n° 92-18971.
( 32 ) Cass. Civ., 1 st Sect., 13 June 1978, unpublished.
( 33 ) No such privilege being in force against E.U. defendants pursuant to the Brussels
Convention of 1968, the Lugano Convention of 1988 and the EC Regulation 44/2001.
( 34 ) App. Court Paris, 30 January 1975, unpublished.
( 35 ) Cass. Civ., 1 st Sect., 5 May 1976, in RCDIP, 1977, p. 144, note by Huet.
( 36 ) Trib. Paris, 20 May 1976, in RCDIP, 1977 p. 144, note by Huet.