2 August 2024 · Working papers

Working Paper

🚧Systemic Litigation

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► Full Reference: M.-A. Frison-Roche, Systemic Litigation, Working Paper, July 2024.

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📝Ce This Working Paper has been the basis for an article tot be published in French in the Recueil Dalloz.

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► Summary of this Working Paper: We are seeing the Emergence of a category of its own and must be designated by a singular expression: 'Systemic Litigation' (I). This category is composed of concrete cases, "Systemic Cases", in which a system is entirely involved. The interest in these systems, insofar as they are all a system, unifies the category and justifies its own procedural, institutional and jurisdictional treatment. This type of Litigation is Emerging for three reasons, which are recorded in the Systemic Cases (II). Systemic Litigation must be dealt with in a way that is both specific and unified. This is beginning to happen and must be expanded (III).

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Is emerging what appears to be its own category, deserving to be designated by a singular expression: ‘Systemic Litigation’ (I). This refers to all of what I have called ‘systemic cases’, singular disputes in which an entire system is involved, a phenomenon so powerful and decisive that it gives rise to a unified category. This litigation is emerging today for 3 reasons, distinct sources whose trace remains in the disputes (II). The challenge now is to conceptualise and construct a judicial treatment of this Systemic Litigation that has to be both specific and unified (III).

I. WHAT DEFINES SYSTEMIC LITIGATION

I proposed in 2021 the notion and expression of ‘Systemic Cases’📎¹. This refers to all Cases, which are brought before a judge and in which a ‘System’ is involved.

It is not a simple method, namely the apprehension of a particular situation in order to reveal the system that structures it, since systemic analysis, which can be relevant and applied to almost all cases📎²,. The hypothesis is more restricted and stems from the fact that in the Case submitted to the Judge, a System is therefore factually present in this case brought to the judge's attention by the parties in dispute. The analysis that will have to be made of the case will therefore necessarily have to take into account the interest of the system involved: it may be the banking, financial, transport, telecommunications, audiovisual, digital, data, energy, health, algorithmic, climate, etc., system. Several systems may be involved in the same case, for example the banking system and the algorithmic system, the energy system and the climate system.

The diversity of systems is in any way an obstacle to the uniqueness of the category of Systemic Litigation and its unified procedural treatment. Indeed, whatever the system involved, its consideration is always and above all that of systemic risks and the system's primary interest is to endure over time, by preventing and managing these risks. Litigation before a judge must integrate this dimension beyond the dispute, unless we pretend that systems do not exist.

Regulatory Authorities have certainly been created, in charge of systems across the sectors that correspond to them. Their sanction and dispute resolution bodies incorporate this concern for Sustainability into their solutions. In this respect, Systemic Litigation has many points of contact with the disputes to which regulatory systems give rise. As François Ancel has shown, systemic litigation is part of the extension that Compliance Law is building on Regulation Law📎³.

Thus Systemic Litigation is the procedural translation of the profound substantive shift that Compliance Law is bringing about by freeing Regulatory Law from its strict sectoral focus. This is increasingly presented as a legal revolution, because it goes beyond the distinction between public and private law, beyond the distinction between civil, commercial and repressive law, in a continuum between Ex-Ante and Ex-Post.

The system itself is then present in the proceedings before the Judge, System with its own interests, which the judge must take into consideration. To do this, the procedure must place in the proceedings before him/her some processual characters who can explain these interests and ask for them to be taken into consideration, either because they have an interest themselves or because they are disinterested parties. Therefore regulators and the public prosecutor are natural parties in Systemic Litigation, regardless of the judge before whom it takes place, for example the civil judge.

II. THE REASONS FOR THE EMERGENCE OF SYSTEMIC LITIGATION

In the past, systems were developed in sectors, and the regulatory authorities in charge of the regulated systems, with their functionally autonomous sanction and dispute resolution bodies, found solutions that safeguarded the interests of the system. In particular, this explains their special status as parties to the proceedings when appeals are lodged. The same applies to the system of competitive markets, where the competition authorities are responsible for systemic litigation📎⁴. Their decisions have always been reviewed by both ordinary and specialised courts, for example in France the Paris Court of Appeal and the French Council of State (Conseil d'État).

Today, however, Systemic Litigation is emerging first and foremost because new systems have appeared that do not fit within the boundaries of a single sector. Even if regulators have a role to play in resolving these disputes📎⁵ , they cannot cover them all.

The digital system, the data system and the algorithmic system📎⁶ have thus emerged beyond the sectors, which do not fall within a sector and which each develop a similar concern for balance and sustainability, called into question in singular disputes.

A second source of Systemic Litigation is the appearance of new elements in old systems. This is the case for the energy system, where it is clear that we may no longer have access to it in the future, or for the climate system, where perturbation could lead to the disappearance of the human race from the face of the earth.

A third source of Systemic Litigation arises in the case of an old system that has not undergone any major objective change and is being looked at afresh. The source of emergence is more political. For example, the ambition is expressed that the situation of women will now and in the future be the same as that of men, or that the rights of people working in areas other than Europe will be the same as those of Europeans.

These 3 sources may intermingle. For example, in Systemic Vigilance Litigation, it is a question of entrusting companies that have structured chains of activities using company and contracts legal mechanisms📎⁷, with the task of taking responsibility for climate concern, an objective obligation that, for example, Europe and China share, but also concern for human rights, for which these two legal systems do not develop the same conception. International law will therefore not play the same role in the Systemic Litigation that will develop beyond borders📎⁸. Nor is contract law going to play a role in the same way, particularly when international arbitration is going to be the unexpected field of systemic litigation of activity chains, integrating above all the sustainability of these chains📎⁹.

III. THE INSTITUTIONAL AND PROCEDURAL TREATMENT OF SYSTEMIC LITIGATION

This systemic litigation, which transcends sectors and is primarily concerned with the future📎¹⁰, is emerging before the ordinary courts, because the companies themselves have contractualised their Systemic Obligations. It is also because of the position of companies in systems that their liability is sought📎¹¹ under the conditions of ordinary law📎¹².

Systemic cases are few, as it is not often that a system is involved in a particular case. Moreover, the judge must first check that the plaintiff is eligible to call that defendant to account, which the Paris Court of Appeal did with care and rigour in the three judgments of 18 June 2024, TotalEnergies, Suez and EDF📎¹³. But once the jurisdictional space is open, the particular decision that is taken by the judge impacts the entire system. This is also why, in Systemic Litigation, even if the high courts retain all their importance, it is the front-line judges, first judicial courts and commercial courts in particular📎¹⁴, to whom attention is turned because the system is a fact: practical solutions often come from these judges.

Furthermore, because the operating rules of systems are often sort of ‘laws’ of nature, of physics, finance, accounting, biology, economy, etc., the dialogue must take place between judges of fact and judges of law, because systems fit poorly into this distinction between fact and law, just as the distinction between public law and private law suits them little, since systems constitute durable structures held by crucial enterprises, regardless of whether they are public or private📎¹⁵. The role of experts in adversarial debate must be increased.

This is seen as a source of ‘complexity’. It can also be seen as a kind of simplicity, because it is in the system's interest to endure. This new simplicity is also a source of disarray in that the pillars of our traditional legal knowledge, such as the tightness of legal systems or the public/private distinction, can scarcely be relied upon and are relegated to the background.

The French courts in particular have shown boldness and reason. In January 2024, the First President of the Paris Court of Appeal explained the creation of a new chamber specialised in vigilance litigation. The first instance Court of Paris has set up a specialised division to hear vigilance cases and cases with a systemic dimension. Other courts may follow this institutional initiative. Training courses are being set up to understand the emergence of Systemic Litigation and its implications📎¹⁶.

The required procedural adjustments must not only encourage this dialogue between the required judges, in particular through preliminary questions and requests for opinions, or even through simple practices or protocols. The innovation may come from the distinction between the parties to the dispute and the parties to the proceedings: while the parties to the dispute may choose to continue to confront each other, the proceedings must be as open as possible to those who have something to say. It is then up to the public authorities, experts and civil society to enlighten the judge.

The judge, as master of the proceedings, must himself/herself find solutions that are appropriate for the parties and for the system involved. He/she must also, in particular through a procedure that has educated him/her, be able in turn to enlighten those who, involved in the system, need to anticipate its evolution.

Once again, dialogue is the best way to achieve this. The adversarial principle is more than ever the major principle📎¹⁷. Proceedings will benefit from being adversarial, public, and methods of debate, such as cross-examination, are welcome. The judge must direct the proceedings, for example by inviting experts to enlighten him/her, and by directing the debates, by inviting the parties to enter into a dialogue themselves, mediation being able to be promoted in this way.

Systemic Litigation experiment has begun.

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🕴️M.-A. Frison-Roche, 🚧The Hypothesis of the category of Systemic Cases brought before the Judge, 2021.
Sur l'analyse systémique appliquée à divers contentieux, v. par ex. .....
🕴️F. Ancel, 📝Quel rôle pour le juge aujourd'hui dans la compliance ? Quel office processuel du juge dans la compliance ?, in 🏛️Conseil d'État (French Council of State) and 🏛️Cour de cassation (French Court of cassation), 📗De la régulation à la compliance : que rôle pour le juge ?, 2024.
On the natural tendency of Antitrust Law to produce Systemic Litigation, see 🕴️M.-A. Frison-Roche, 📝Antitrust, natural field of Systemic Litigation, 2024,
This will in future justify the strong presence of Regulators in proceedings before the Judge of Ordinary Law; in this respect, Law of Competitive Markets has been a harbinger (for further developments, 🕴️M.-A. Frison-Roche, 📝Antitrust , natural field of Systemic Litigation, 2024).
🕴️M.-A. Frison-Roche, 🚧C ompliance Law loses the Ties of Regulation Law but Retains its Principles: Consequences for Companies, 2018.
🕴️M.-A. Frison-Roche, 🚧Compliance contract, compliance clauses, 2022.
🕴️L. d'Avout, 📝Compliance and conflict of laws. International Law of Vigilance-Conformity, based on recent applications in Europe, in🕴️M.-A. Frison-Roche (ed.), 📘Compliance Obligation, 2024.
🕴️L. Aynès, 📝How International Arbitration can reinforce the Compliance Obligation, in🕴️M.-A. Frison-Roche (ed.), 📘Compliance Obligation, 2024.
🏛️Cour de cassation (French Court of cassation), 🧮Dans l’espace de justice, les pratiques juridictionnelles au service du futur (Jurisdictional practices at the service of a legal area for the future), 21 November 2024.
🕴️M.-A. Frison-Roche, 🚧Ex Ante Responsibility, 2021.
As the 2017 French law on the duty of vigilance reminds us, the European directive of 13 June 2024 does not call this into question either; see 🕴️J.-S. Borghetti, 📝The Relation between Tort Law and Compliance Obligation, in🕴️M.-A. Frison-Roche (ed.), 📘Compliance Obligation, 2024.
🏛️Cour d'appel de Paris (Paris Court of Appeal), division 5, ch. 12, 18 June 2024, TotalEnergies (RG 23/14348), Suez ( RG 23/10583), EDF (RG 21/22319).
🕴️M.-A. Frison-Roche, 🎤Devoir de vigilance et litiges commerciaux : anticiper l'incidence et s'organiser (Duty of Vigilance and Commercial Litigation: Anticipating the "impact" and getting organised), in 🧮L'incidence du devoir de vigilance sur les litiges commerciaux (The impact of the duty of vigilance on commercial litigation), 25 September 2024.
🕴️M.-A. Frison-Roche, 📝Proposition pour une notion : l'opérateur crucial (Proposal for a notion: the "Crucial Operator"), 2006.
🕴️M.-A. Frison-Roche, Coordination of the cycle of conference-debates 🧮Contentieux Systémique Émergent (Emerging Systemic Litigation), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche.
mafr, Le principe du contradictoire, ....
The term "cause" ("case") is used in article 5 of the Code civil (French Civil Code), which reminds judges that they must not attach a general provision ‘to the causes submitted to them’ ("Il est interdit aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises" (free translation: "Judges are prohibited from making general and statutory rulings on cases submitted to them."). On the perfect compatibility between the continental prohibition of statutory rulings and the appropriate treatment of systemic litigation, because the judicial solution is diffused in the fact constituted by the system, see 🕴️M.-A. Frison-Roche, 🚧The Hypothesis of the category of Systemic Cases brought before the Judge, 2021.
On the natural tendency of Antitrust Law to produce Systemic Litigation, see 🕴️M.-A. Frison-Roche, 📝Antitrust, natural field of Systemic Litigation, 2024,
On the creation of the new Chambre 5-12 (5-12 Chamber) to hear about it, 🕴️J. Boulard, 💬Contentieux systémique : "Il est important, pour les magistrats, de rester au plus près des réalités" (Systemic litigation: “It's important for judges to stay as close to reality as possible”), March 28, 2024.

On the fact that this is justified as it is an Emerging Systemic Litigation, see 🕴️J. Boulard, 🎤Discours du Premier Président. Audience solennelle de rentrée, January 15, 2024: "Une autre innovation majeure concerne la création à la cour d'une chambre spécialisée - la chambre 5-12 - qui sera dédiée aux actions relatives au devoir de vigilance de certaines sociétés, à leur obligation de publication d'informations en matière de durabilité et aux actions en responsabilité écologique dans les affaires présentant un caractère de grande complexité. [...] Pourquoi cette nouvelle chambre ? Parce qu'il s'agit de contentieux émergents dont la dimension systémique impose, pour les magistrats qui en connaissent, qu'ils disposent de compétences juridictionnelles transversales, empruntant à diverses branches du droit, et, pour les parties au procès, qu'elles bénéficient de la garantie d'une plus grande prévisibilité de la jurisprudence. Dotée d'une compétence nationale en matière de devoir de vigilance, la cour d'appel de Paris se doit par ailleurs d'être à la hauteur des nouveaux enjeux de prévention des atteintes graves envers les droits humains et les libertés fondamentales, la santé et la sécurité des personnes ainsi qu'à l'endroit de l'environnement, pour reprendre les termes de la lois." (free translation: "Another major innovation concerns the creation at the court of a specialised chamber - Chamber 5-12 - which will be dedicated to actions relating to the duty of vigilance of certain companies, their obligation to publish sustainability information and actions for ecological liability in cases of great complexity. [...] Why this new chamber? Because these are emerging areas of litigation, the systemic dimension of which means that the judges dealing with them must have cross-disciplinary jurisdictional skills, borrowing from various branches of Law, and that the parties to the proceedings must be guaranteed greater predictability of case law. The Paris Court of Appeal, which has national jurisdiction in matters of vigilance, also has a duty to rise to the new challenges of preventing serious violations of human rights and fundamental freedoms, the health and safety of individuals and the environment, to quote the law").

On the conference-debates organised accordingly by the Cour d'appel de Paris (Paris Court of Appeal), the Cour de cassation (French Court of cassation) and the Cour d'appel de Versailles (Versailles Court of Appeal), with the support of the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche, 🕴️M.-A. Frison-Roche, 💬"Nous voyons émerger aujourd’hui le contentieux systémique" (""We are now seeing the emergence of the Systemic Litigation""), March 28, 2024 ; 🕴️M.-A. Frison-Roche, Coordination and animation of the cycle of conference-debates 🧮Contentieux Systémique Émergent (Emerging Systemic Litigation).

FieldsEconomic Law, Regulation and Compliance, Justice and procedure

TagsEmerging Systemic LitigationSystemic Litigation