► Full Reference: M.-A. Frison-Roche, Identifying and anticipating the practice of Emerging Systemic Litigation: a necessity for organizing it , Working Paper, December 2024.
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🎤This working paper was drawn up to serve as the basis for the speech that opened the colloquium L’expérience des juridictions dans le Contentieux Systémique Émergent, in the cycle of conferences-debates "Contentieux Systémique Émergent," which was held in French on 16 December 2024 at the Paris Court of Appeal.
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📝It will also constitute the basis of the first contribution to the book to be published in French in 2025, Le contentieux systémique émergent (Emerging Systemic Litigation).
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► Summary of this Working Paper : Systemic Litigation is for the moment a practice that has not been clearly identified. This is a handicap in practice, firstly because it can be confused with other things, such as the "systemic method" that this category of Litigation calls for and to which it cannot be reduced and which this method exceeds, and secondly because if this practice is not conceptualised, secondly, because if this practice is not conceptualised, even if only by a shared definition, it is difficult for the courts to organise themselves and for the potential parties to the dispute and to the proceedings to anticipate the procedural and substantive solutions that will be adopted tomorrow. The difficulty is compounded by the fact that not all emerging disputes are Systemic and not all systemic disputes are emerging. For example, banking regulation litigation and litigation concerning the operation of competitive markets or sectoral regulation are systemic disputes that are not emerging. But it so happens that technological developments have given rise to new systemic litigation, which the courts, judges and parties have had to adapt to because the systems themselves are entering the courthouses.
A series of conferences has been organised to report on this practice, focusing on technology, legislation, management, court organisation, procedure and the role of the judge.
They have thus made it possible to build up common, cross-disciplinary knowledge so that innovations can be developed and expressed in the organisation of the courts, in procedures, particularly in the relationship between judges and lawyers, and in the openness of proceedings, in the conception of the judge's office, which must be singular when the case, because a systemic is implied, is systemic. This specificity leads to judges who are less hierarchical among themselves and more specialised, leading to procedural forms that place dialogue and adversarial proceedings no longer as a desire and support but as the primary guiding principle.
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🔓read the developments of this Working Paper below⤵️
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- mafr, Antitrust, natural field of Systemic Litigation, 2024.
- Cela tient aussi au fait que le contentieux systémique est lié au Droit substantiel de la Compliance, lequel a engendré beaucoup de pratiques mais est un Droit nouveau qui suscite des interrogations ; à ce sujet, mafr, "Les naissances du droit de la compliance, in La vie du droit, Mélanges Louis Vogel, 2024.
- Sur le rapport entre les noms et les choses précisément appliqués à l'activité juridictionnelle en matière de compliance, v. mafr, "Le jugeant-jugé" et J. Heymann, "La Cour suprême de Facebook", in mafr (dir.), La juridictionnalisation de la compliance, 2023.