Contratto ImpresaEuropa - Cedam

672 CONTRATTO E IMPRESA / EUROPA
French bankruptcy law provides for another comparable example. Articles
L. 621-43 of the French Code of commerce and 66 of the 27 December
1985 Decree state that, in case of bankruptcy, the proceedings are published
in an official journal (BODACC) and the curator of the bankruptcy
(représentant des créanciers) informs the creditor by letter. Said publication
triggers a two months time-limit (four months if the creditor is domiciled
abroad) for the creditor to petition for the admission of his credit into
the bankruptcy. Failing the creditor to make such petition, the credit is
extinguished. According to consistent case law, if the curator of the bankruptcy
fails to inform the creditors personally, the time-limit is nevertheless
triggered on the basis of the sole publication in the BODACC, with
the consequence that the right of a creditor – be him domiciled in France
or abroad – to participate in the payments made pari passu by the bankruptcy
to all creditors may be extinguished on the basis of his failure to
consult the publication into the BODACC ( 68 ). Such situation can be transposed
to that of an absent class member. As a matter of fact, the opening
of the bankruptcy can, to a certain extent, be compared, for the creditor,
to the initiation of a lawsuit as it triggers a legal and judicial process for
the admission of the credit in the bankruptcy.
Such examples are of course quite different from the situation of an
absent class member, but they illustrate that the American class actions’
opt out mechanism should not necessarily be deemed incompatible with
the French conception of international public policy on the ground that it
permits the disposal of a party’s right absent a clear expression of such
party’s intent.
Ultimately, the issue is one of representation: may the class representatives
validly represent absent class members in court? Given that the issue
of representation applies to proceedings before a U.S. court, such
question should be regulated by U.S. law rather than by French law.
In any event, French case law does not consider the jus standi of the
plaintiff in the foreign proceedings to be part of the French conception of
international public policy ( 69 ). As a consequence, the lack of jus standi
(under French principles) of the class representatives to represent absent
class members before the U.S. court should not constitute a valid ground
to refuse recognizing the U.S. judgment.
( 68 ) Cass. Com., 11 October 1988, n° 87-12791; Cass. Com., 29 January 1991, n° 89-16421;
Cass. Com., 6 July 1999, n° 97-11191; Cass. Com., 23 January 2001, n° 98-15487.
( 69 ) Supreme Court, Commercial Sect., Bail Marine vs. Vessereau, 10 May 1982, n°80-
16125; App. Court Paris, 1 st Sect. C. Gothaer vs. Taffin, 6 December 2001, n° 00-13409.