courts to judge any dispute between a nonU

The "class actions" against companies non-American and especially French, multiply in the United States. This phenomenon results in part of a movement of "forum shopping": non-US investors undertake legal action in the United States against non-U.S. companies to take advantage of the procedural advantages of American law: "discovery", "class action" with "opt out" (any person in a situation identical to that of the complainant is deemed to be a party to the action), result, popular jury fees...

Known as those concerning foreign shareholders complaint in the United States against non-US companies, which they have acquired the securities markets non-Americans, a "foreign-cubed plaintiffs."

The result is an unsatisfactory situation of export of stock litigation in the United States. The idea that a dispute between a French investor to a French transmitter be decided by a U.S. Court is indeed difficult to accept. The recent conviction of the group Vivendi in the United States very concretely illustrates this phenomenon. Other French groups currently defend against such procedures in the United States.

The Supreme Court of the United States comes to accept - thing rare - to take this issue in a dispute between an Australian Bank to its Australian shareholders (Morrison v. National Australia Bank) in New York. Three major arguments opposed to the highest US Court.

That of the Federal Court of appeal which held that case and who considered that American courts are not competent to entertain an action brought by a "foreign-cubed plaintiffs" when the heart of the alleged fraudulent activities located outside the United States.

That of the Australian complainants asked the Supreme Court to recognize the jurisdiction of U.S. courts to judge any dispute between a non-U.S. company to its shareholders non-Americans, then a significant - but not necessarily central element - of the alleged fraud took place in the United States.

Last thesis, that of the Australian Bank continued, for which the American courts should not be relevant in this case.

Large economic issues

Issues of this case are both economic and sovereignty. Economical to the extent that if the Supreme Court had to decide that American courts are competent to adjudicate disputes between shareholders non-Americans to non-U.S. companies as there is a link - same secondary - with the United States, the risk would be great for corporations French to see regularly traînées the American courts, with considerable financial risks. Sovereignty because, if the American courts should feel competent in such cases, what would be the "residual" jurisdiction of the French courts for French companies having a connection sufficient with the United States

Sign of the importance of this case, the French Government filed last February 26 an "amicus brief" before the Supreme Court of the United States. English, Australian, and American Governments the Medef and the Afep have done the same. "Amicus curiae", literally "friend of the Court", refers to any third person in a dispute, heard to argue to the Court its views on the question posed by the ongoing litigation in American law. This was more than ten years that the France did not intervened, as "amicus curiae", before the Supreme Court of the United States.

In its submission, the French Government points out the risks of conflict resulting from extraterritorial application of U.S. securities law in such a context. For him, the American courts should not declare itself competent to judge between litigation of shareholder non-Americans to non-U.S. companies. He also pointed out that the French courts would refuse, almost certainly recognize in France a judgment in the United States as part of a "class action" with "opt out". This conclusion, consistent with the writings of almost all of French doctrine, is however not accepted by judge Holwell in the case of Vivendi, and which had allowed him to maintain the French shareholders in the class of the complainants. The decision of the Supreme Court, highly anticipated by the French companies with interests in the United States, should be made in the coming months.