Contratto ImpresaEuropa - Cedam

DIBATTITI 663
forced without caring about the law applied by the foreign judge and his reasoning.
[. . .] Generally speaking, conflict rules are not mandatory, as they only
express an assessment as to the localisation of a particular situation,
which assessment may with no inconvenience be replaced by another one. [...]
Therefore, there is no reason in theory to impose, on a general basis, a review
of the application by the foreign judge of the applicable law » ( 41 ).
The choice of law requirement must, however, still be taken into account.
Yet, it is substantially alleviated by the fact that French law admits
an exception to the rule when there is substantial equivalence between
the law applied by the foreign judge and French law, i.e. when the application
of French law would have led to a substantially equivalent outcome
( 42 ). What matters in this respect is not that the procedures be identical
in the two jurisdictions, but that their outcome be of the same nature,
i.e. that they lead to a possible civil liability and to an obligation to compensate
the loss suffered by the aggrieved parties ( 43 ).
In other words, a law according to which a certain fact is considered to
be lawful would not be considered as equivalent to a law according to
which the same fact is unlawful. To the contrary, two laws qualifying the
same fact as unlawful would be considered equivalent, even though the
procedures to obtain a declaration of liability of the party having committed
such fact may differ.
Likewise, it should not, in our view, be considered that the foreign
and French law are not equivalent on the sole basis that one would qualify
the defendants’ liability as contractual, while the other would qualify it
as tort. As stated above, the concept of equivalence refers to an equivalence
of the solutions, and not to an equivalence of the qualifications. As a
consequence, a tort action could be considered as equivalent to a contractual
action, provided that they both lead to the same result. Finally, the
fact that the amount of damages granted in the two jurisdictions may differ
is similarly irrelevant, as long as no punitive or exemplary damages are
granted by the U.S. court ( 44 ). It should be recalled, in this respect, that
French law considers loss assessment as a matter left to the sovereign valuation
of the judges of the merits, which is not therefore subject to the
( 41 ) Mayer, Private international law, Montchrestien, 8th Ed., 2004, pp. 282-283.
( 42 ) Req. 29 July 1929, Drichemont, Dalloz, 1929, Jur. p. 458.
( 43 ) App. Court Paris, 4 February 1958, in RCDIP, 1959, p. 380; App. Court Paris, 8 May
1980, in RCDIP, 1981, p. 700.
( 44 ) The issue of punitive damages will be analysed in more details in the section of this
article on public policy.