Towards a European Concept of Public Policy Regarding Punitive Damages?
Stefania Bariatti/Luigi Fumagalli/Zeno Crespi Reghizzi (eds.), Punitive Damages and Private International Law: State of the Art and Future Developments, Wolters Kluwer/CEDAM, Milano 2019, 253-286.
In this publication, Wolfgang Wurmnest analyses the emergence of a common European concept of public policy regarding the recognition and enforcement of punitive damages judgments.
After having highlighted the basic contours of punitive damages he explains the impact of European standards on the interpretation of the ordre public which is traditional seen as a national concept of law.
To this extent he first takes a closer look at the case law of the European Court of Human Rights. The judgments reveal that awards must comply with the principle of proportionality to be in line with the European Convention of Human Rights. The award of excessive damages is therefore not proper and therefore it is argued that also the enforcement of judgments awarding excessive damages run counter the Convention's spirit.
Second, selected rules of EU private law are analysed. This tour d'horizon indicates that EU law does not embrace US style punitive damages but is open towards forms of compensation that ensure preventive effects, including forms of supra-compensatory damages. As consequence, a complete per se ban of judgments awarding
non-compensatory damages cannot be upheld any longer, a finding that is also supported by the interpretation of the ordre public under the Rome II Regulation.
The final part of the chapter compares the general approaches taken by selected jurisdictions (France, Germany, Greece, Italy, Spain, United Kingdom) with regard to the enforcement of judgments from third states and evaluates whether these approaches are in line with the European standards elaborated in the first parts of the publication
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