Perspectives Contentieuses Internationales: Issue 2 of 2025
It is an open access publication and can be freely downloaded here.
Real Madrid v Le Monde
The main focus of the issue is on the case of Real Madrid v. Le Monde (Case C-633/22). It offers 6 contributions exploring the various aspects and implications of the judgment.
Fabienne Jault, L’avenir de la libre circulation des décisions de justice dans l’Union européenne : l’affaire Real Madrid / Le Monde — Propos introductifs
The Real Madrid ruling is an important decision in European private international law, in that it obliges to refuse partial recognition of a decision that clearly infringes freedom of expression. At the same time, by specifying the way in which the proportionality test must be applied, the judgment has not left specialists in civil liability indifferent. These introductory remarks to the dossier, which echoes the various facets of the case, focus on the free circulation of judicial decisions that the proportionality review inherent in the implementation of fundamental rights alters.
Julie Traullé, La réparation du dommage causé par un abus de la liberté d’expression au coeur du dialogue des juges
The decision handed down on October 4, 2024, by the Court of Justice of the European Union in the so-called Real Madrid case offers a renewed vision of the relationship between civil liability law and freedom of expression. In light of what the European Court of Human Rights may otherwise rule, the review that the judge of the requested State is invited to carry out on the outcome of the civil liability action is limited. In light of what french civil liability law provides, the review that the judge of the requested State is invited to carry out is original.
Marie Dugué, Laura Vitale, De la marche à suivre pour décider si une sanction pécuniaire prononcée à l’étranger viole manifestement la liberté de la presse
The judgement delivered by the Court of Justice of the European Union on 4 October 2024 sets out a singular method for determining whether a court can refuse to enforce a foreign order for damages against a newspaper and a journalist, on the grounds that it manifestly infringes the freedom of the press guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union. The court of the Member State in which enforcement is
sought is required to take into account not only the extent of the harm, but also the resources of the persons against whom judgment is given and the seriousness of their wrong. The way in which French judges will take this into account is open to question.
Ana Quiñones Escámez, Un article de presse, deux affaires en Espagne et vingt fois plus de dommages-intérêts moraux dans l’une d’elles: exequatur en France?
The case of Real Madrid vs. Le Monde is examined in the light of an earlier dispute with FC Barcelona, in which compensation for moral damages was twenty times lower. The study examines discrepancies in press law, false pretences (punitive damages) and judicial practice. Furthermore, the text undertakes an analysis of the implications for exequatur, in terms of mutual trust, the prohibition of substantive review and the strict interpretation of public policy, in the light of Regulation 44/2001 and the ECJ judgment of 4 October 2024. This judgment, in accordance with the chilling effect doctrine of the ECHR, paves the way for the French judge to refuse, partially or totally, recognition of the Spanish decision.
Oliveira Boskovic, L’ordre public international et les condamnations pécuniaires excessives
Does international public policy require that any award of damages be proportionate to the actual harm suffered by the claimant and/or to the fault committed by the defendant? The Real Madrid ruling raises this question, well known in French private international law and in two Hague Conventions, at the European level. This article examines the decision in its context, explores the possibility of extending its application beyond the specific case of press freedom violations addressed by the Court, and analyzes the consequences of a finding of disproportion.
Fabien Marchadier, Contrôler sans réviser ? Quelle place pour le contrôle du respect des droits fondamentaux dans un contexte de confiance mutuelle?
Is the review of foreign judgments in light of fundamental rights compatible with the prohibition of review on the merits, especially in a context of mutual trust presuming respect by all Member States for those same rights? To what extent does the review undertaken by the court of the requesting State differ from that carried out by the court of origin? In its Real Madrid judgment, the Court of Justice seeks to establish a methodology for review. Guided by the objective of free movement of decisions, it imposes constraints on the court of the requested State and proposes an innovative solution, namely partial recognition by way of reduction of the sentence.
Other Articles
Gilles Cuniberti, Assessing the International Attractiveness of Commercial Courts. Will Paris Eat London’s Lunch?
The establishment of an international chamber in the Paris Commercial Court aimed at competing with and divesting judicial business from the London Commercial Court. Yet, the promoters of the new French international courts haven’t made any effort to assess the number and nature of cases that French courts could hope to attract. This Article conducts this inquiry by studying and comparing the international caseloads of both courts.
Its first part reflects on the conditions for international judicial competition and argues that the many types of cases that each of the two courts handles reveal the existence of different markets, which are not all competitive and international. The second part offers an empirical study of the caseloads focusing on potentially competitive markets only. It then argues that the international attractiveness of commercial courts is revealed by the origin of the parties and assesses the attractiveness of each of two courts by distinguishing the cases on this basis.
Marylou Françoise, La saisine du juge dans les litiges internationaux
The date a court is seised is crucial in international litigation. It determines the competent court involving a lis pendens. However this moment may prove complex to determine. And it is not merely a matter of recording a date. According European regulations, it is also necessary to prove that the applicant has not subsequently failed to take the steps he was required to take in order to have service effected on the respondent. Thus, when the seising of a foreign court must be proven, several questions are raised: what is the applicable law? Where does the burden of proof lie? Are European regulations sufficient for a comprehensive and uniform framework? What is the role of the parties and the judge? Rules about the time when a court is deemed to be seised are clarified by the European Court of justice and by the French Cour de cassation.
Shorter pieces
Thomas Clay, L’Arbitration Act 2025
Sandrine Clavel, Rapport sur l’application du Règlement Bruxelles I refondu : To revise or not to revise?
Patrick Jacob, L’ordonnance rendue par la CIJ en l’affaire Soudan c. Emirats Arabes Unis : coup de frein à l’ouverture de la Cour