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The Current European Perspective on the Exequatur of U.S. Punitive Damages: Opening the Gate But Keeping a Guard

100%
Vanleenhove C.
Polish Yearbook of International Law
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2015
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vol. 35
235-264
EN
Global trade and intercontinental tourism are on the rise in today’s world. This, in turn, leads to more cross-border law suits. Inevitably, jurisdictions will be confronted with legal concepts that are unknown in the host forum. This contribution investigates whether, and to what extent, punitive damages judgments originating in the United States can be enforced against the assets of a defendant in a number of selected Member States of the EU. More specifically, the article explores the possibilities of enforcing American punitive damages judgments in five EU countries, namely Germany, Italy, Spain, France and England. This comparative analysis reveals that the case law in these selected countries is relatively divergent as to the stance adopted towards foreign punitive damages, resulting in different degrees of acceptance of this legal remedy.
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Niektóre aspekty materialnoprawne i procesowe instytucji punitive damages z perspektywy polskiej

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Markowska, J., Kowalczyk W.
Studia Iuridica
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2016
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vol. 61
211-232
EN
Punitive damages play an important role in the tort law of common law countries. Recently, the nature of punitive damages has come under question in front of the Supreme Court of the Republic of Poland which had to decide in Cimoszewicz-Harlan v. Wprost whether a U.S. judgment granting the defendant punitive damages can be recognised under the Polish law. In light of this recent decision this article will try to present some issues of substantive and procedural law involved in the concept of punitive damages and how they can be of any importance from the Polish perspective. The first part will focus on the nature of punitive damages, their function, the criticism it has harnessed and the tendencies that appear in civil law countries to introduce damages of a punitive nature. The second part will present issues of procedural law and will focus on the question whether American judgments awarding punitive damages should or should not be recognised in Poland, and if yes, then to what extent.
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Rozważania na temat represyjnych i prewencyjnych elementów odpowiedzialności odszkodowawczej na przykładzie instytucji odszkodowania karnego (punitive damages) w świetle orzeczenia Sądu Najwyższego oraz Trybunału Konstytucyjnego

100%
Kochanowski M.
Studia Prawa Publicznego
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2017
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issue 1 (17)
83-100
EN
The verdict of the Supreme Court of 11 October 2013 (fi le I CSK 697/12) and the decision of the Constitutional Tribunal of 25 June 2015 (fi le SK 32/14) are discussed and their signifi cance for the understanding of punitive damages analysed. The main problem discussed in this paper is the question whether there is room under Polish law for punitive damages modelled a common law system and whether the adoption of this solution could possibly infl uence the basic premises constituting the liability for damages already adopted. The main focus has been put on the argumentation of the Supreme Court presented in its verdict regarding the possibility of enforcing by Polish courts a judgment in which a foreign court awarded punitive damages, and the arguments of the Constitutional Tribunal regarding the constitutionality of a legal provision establishing a possibility of fl at-rate damages, being awarded and increased in the event of the determination of guilt by the breaching party. Certain detailed provisions that are contradictory from the point of view of the fundamental assumptions underlying the liability for damages in Polish law and the laws of most European legal systems (and the German system in particular) are also examined. Further, a synthetic analysis of the positive and negative aspects of punitive damages identifi ed by other researchers is presented. This is followed by a mention of other institutions available under Polish law which may constitute an alternative to punitive damages, at least when it comes to the provision of an adequate preventive and punitive measure in the event of gross or culpable damage.
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Roszczenie o zapłatę wielokrotności wynagrodzenia w polskim prawie autorskim a prawo europejskie

88%
Balcarczyk J., Okoń Z.
Kwartalnik Prawa Prywatnego
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2012
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vol. 21
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issue 4
949 - 984
EN
The article investigates the way Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights was implemented to the Polish copyright law. It pays special attention to the provision of art. 79 sec. 1 of the Polish copyright law that provides for payment of double or, where the infringement is culpable, triple the amount of respective remuneration that would have been due as of the time of claiming it in exchange for the rightholder’s consent for the use of the work and analyzes whether it constitutes punitive damages that are prohibited by the above Directive. It explains the reasons rooted in economic analysis of law behind it and outlines some possible risks arising therefrom.
5
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Private Antitrust Enforcement Without Punitive Damages: A Half-Baked Reform?

88%
Massa C.
Yearbook of Antitrust and Regulatory Studies
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2018
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vol. 11(17)
93-111
EN
Directive 2014/104/EU on private antitrust enforcement opted for the exclusion of punitive damages from the category of recoverable damages following a violation of antitrust law. This article will outline the concept of punitive damages and analyse the relevant case-law of the courts of the Member States, of the ECtHR and of the ECJ. Then, it will examine the regime laid down in the Directive and consider the possible reasons why the European legislator opted for this exclusion. Thus, the opportunity to introduce such a provision into the European legal system will be evaluated, taking into consideration the problem of overdeterrence, the problem of the division of functions between public and private enforcement, and making a comparison with the relevant provisions of Directive 2004/48/EC on the enforcement of intellectual property rights. Finally, a possible modification of Article 3(3) of the Directive will be suggested, in the framework of the review that the Commission is required to undertake by December 27, 2020
FR
La Directive 2014/104/UE sur l’application privée du droit de la concurrence a opté pour l’exclusion des dommages-intérêts punitifs de la catégorie des dommages recouvrables suite à la violation du droit de la concurrence. Cet article décrira la notion de dommages-intérêts punitifs et analysera la jurisprudence pertinente des tribunaux des États membres, de la CEDH et de la CJUE. Ensuite, il examinera le régime prévu par la Directive et examinera les raisons possibles pour lesquelles le législateur européen a opté pour cette exclusion. Donc, l’opportunité d’introduire une telle disposition dans le système juridique européen sera d’évaluée en prenant en considération le problème de la dissuasion excessive, celui de la répartition des fonctions entre l’application publique et privée du droit de la concurrence et en faisant une comparaison avec les dispositions pertinentes de la Directive 2004/48/ EC relative au respect des droits de propriété intellectuelle. Enfin, une éventuelle modification de l’article 3, paragraphe 3, de la Directive sera d’envisagée, dans le cadre d’une révision de la Directive que la Commission doit faire au plus tard le 27 décembre 2020
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O potrzebie powstrzymania procesów nierównego traktowania podmiotów gospodarczych

51%
Sołtysiński S.
Kwartalnik Prawa Prywatnego
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2015
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vol. 24
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issue 3
493-550
EN
The article critically analyses the growing process of unequal treatment of economic actors. It illustrates the problem in the fields of bankruptcy law, intellectual property, bilateral investment treaties and the Cape Town Convention. The paper essentially argues, that during the last thirty/forty years the most powerful sectors of the world economy have successfully lobbied for granting them significant privileges, which are characterized in the legal and economic literature as super priorities. These special rights, are usually justified because of the systemic importance of the beneficiaries of those privileges. The author argues, that the processes of departing from the principle of formal equality of private law parties started in the seventies/eighties of the last century. It is worth mentioning, that exceptions from the principle of the equal treatment had been granted earlier almost exclusively in favor of weaker persons/entities (e.g. employees, consumers, small and medium size companies). At the outset of the article, the author describes the growing process of special treatments of banks and other financial institutions in the field of bankruptcy law, which has led to granting the privileged parties numerous preferences in blatant disregard of the principle of equal treatment of the creditors. Parties to netting contracts, repurchase agreements (repos), derivatives etc., who, unlike the other creditors, can seize and liquidate collateral, net out gains and losses, terminate their contracts with the bankrupt party, as well as benefit from concessions they obtained from the insolvent party on the eve of bankruptcy, although other creditors would have to return such benefits to the bankruptcy administrator. To sum up, privileges granted to the financial institutions in bankruptcy law consist both in absolving them from the standard bankruptcy disciplines and obtaining a priority to satisfy their claims ahead of the remaining creditors of the bankrupt estate. No doubt, banks and other financial institutions play an important and systemic role in the modern economy. Clearly, bankruptcy law save harbors limit the risks of the privileged entities. However, they shift the risk to the shoulders of the other creditors, including other financial institutions. Thus the said save harbors do indeed reduce the risk of the privileged economic actors but transfer those risks to other players (mainly the so called real economy entities). Based on recent legal and economic studies, especially published in the United States, the author illustrates the central point of criticism, namely, that the said super priorities constituted one of the main causes of the recent financial crisis. The super priorities weaken market discipline and discourage prudential supervision of the market by other creditors who are unable to evaluate the creditworthiness of the parties that are muzzled by such financial instruments like repos, derivatives or netting agreements. It is worth noting the paradox that establishing a lien or mortgage, regardless of its amount, requires registration and publication of such rights in the public register while the said super priorities are practically invisible and subject to no formalities aimed at informing every person to monitor the financial situation of a party who established any priority right. Until recently Polish banks enjoyed an important procedural privilege vis-à-vis their clients known as the banking enforcement title. It enabled the banks to initiate their enforcement claims without obtaining a judicial award. The Constitutional Tribunal ruled, that such procedural privilege is unconstitutional as contrary to Art. 32 subsection 1 of the Constitution. The author concludes, that the banking privilege constituted yet another unjustified exception from the principle of equal treatment of private parties, in particular, such special right was established in favor of a stronger party. The author approves the decision of the Constitutional Tribunal, which ruled that the legislator shall repeal Art. 96 and Art. 97 of the banking law by August 1, 2016. The paper also discusses the privileges of owners of intellectual property introduced by national laws and several international agreements. The advocates of strengthening intellectual property protection advance several justifications. First, they invoke the importance of intellectual property assets; second, they refer to the ease of piracy and the need to promote the progress of science, technology. Recently, several economic and legal studies demonstrated, that overprotection of intellectual property produces detrimental effects both in developed and developing economies. The paper observes, that during the last decade the Supreme Court of the United States and case law in other countries reversed the trend of the said overprotection and issued decisions aimed at restricting some unduly powerful remedies in the relevant field (for instance, permanent injunctions and treble damages). It is also emphasized, that the advocates of increasing protection of intellectual property frequently advance an argument that privileges of IP owners are aimed at protecting weaker parties (e.g. authors and artists). In fact, the overwhelming majority of IP rights are owned by enterprises or employers of the creators. In the past, it was generally agreed, that foreign investors should not be entitled to any privileges and enjoy substantive and procedure rights available to citizens and companies of a foreign country in which they settled or invested. While evaluating the procedural and substantive rights of foreign investors, in particular, those regulated by bilateral investment treaties (the so called BITs), the author maintains, that the special treatment of the investors is irreconcilable with the Polish Constitution and constitutions of many other countries, which provide for equal treatment of citizens and economic actors. He also points out, that the EU law tolerates the reverse discrimination of citizens and legal persons if permitted by domestic legislation of Member States. However, the EU legal doctrine substantially agrees that discrimination a rebours is subject to constitutional constraints. The paper points out, that the Polish Constitutional Tribunal has ruled at least in one case that the reverse discrimination of Polish domestic companies is contrary to the Constitution. Finally, the article discusses the privileges of foreign creditors and lessors of expensive equipment, such as aviation and railways products accorded by the Cape Town Convention. In the final remarks, the author observes, that the growing list of exceptions to the principle of equal treatment of economic actors undermines a fair competition in several fields of economic activity. The list of privileges recently lobbied by the leading economic sectors is not limited to those discussed in the paper. Therefore, the article calls for the need to reverse those trends, which have not been discussed or even noticed in the handbooks of civil law so far. However, the paper stresses that the courts, in particular, the Constitutional Tribunal, have issued first decisions aimed at containing the detrimental effects of the unequal treatment of economic actors.
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