Contratto ImpresaEuropa - Cedam

674 CONTRATTO E IMPRESA / EUROPA
mestic actions before French courts ( 73 ), and cannot be used to set aside a
foreign judgment or award. Indeed, in a case where a party objected to the
recognition in France of an Italian decision arguing that the foreign court
had disregarded the principle «nul ne plaide par procureur », the Supreme
Court held that the appellate judges had rightly enforced the Italian decision
and did not have to determine whether the invoked rule also applied
in Italy ( 74 ).
g. The Principle of Direct and Foreseeable Damages
Even though the assessment of the amount of damages is a matter traditionally
left to the sovereign assessment of the judges of the merits, civil
law systems have a general principle according to which damages
should have a compensatory nature, i.e. that their scope should be limited
to compensating direct and foreseeable losses.
In certain types of class actions, namely those related to very serious
offences such as physical injuries, punitive or other special or exemplary
damages may be recovered before common law courts ( 75 ).
Punitive damages may be defined as damages in excess of actual damages,
which are assessed as a form of punishment of the wrongdoer and to
deter both the negligent party and others from committing the same reckless
or malicious acts.
It is doubtful that a French court will accept to enforce a class action
judgment from a U.S. court awarding such punitive damages. France, unlike
other European countries, does not yet, in our knowledge, have case
law on that particular issue. However, German ( 76 ), English ( 77 ) and Italian
( 78 ) courts held that the recognition of an American judgement awarding
punitive damages is contrary to public policy and should be denied. To
the contrary, a Swiss court has enforced a Californian judgment awarding
punitive damages in application of English law ( 79 ).
Paris, 1 st Sect. C., Mandel vs. Coprim, 27 October 1998, n° 97-06011; App. Court Paris, 1 st
Sect. C. Gothaer vs. Taffin, 6 December 2001.
( 73 ) Cass. Civ., 2 nd Sect., 3 April 2003, Fitzpatrick vs. Berner, n° 99-21024.
( 74 ) Cass. Civ., 2 nd Civ., 4 April 1973, Eurasia vs. Agenzia Marittima Tirreno, n° 71-14100.
( 75 ) Laroche-Gisserot, Les Class Actions Américaines, Petites Affiches, 10 June 2005,
p. 7.
( 76 ) Bundesgerichshstof, June 4, 1992, Bundesverfassungsgericht, Dec. 7, 1994.
( 77 ) Lewis vs. Eliades [2003] EWHC 368 (QB), [2003] 1 All. E.R. (Comm.) 85.
( 78 ) Venice Court, October 15, 2001.
( 79 ) Basel Civil Court, February 1 st , 1989, quoted by Court de Fontmichel, L’arbitre,