PUNITIVE DAMAGES FROM A PRIVATE INTERNATIONAL LAW

PERSPECTIVE

Marta Requejo Isidro*

I. Introduction

There are currently two major civil liability models in Europe: those of Anglo- 1
Saxon origin, and those of the so-called “civil” systems. One of the main dif-
ferences between them lies in the fact that whereas the latter limit the function
of civil liability to repairing or compensating damage, the former admit other
purposes: awards must show that the improper conduct in question is not worth
the risk (tort does not pay) and discourage its repetition. These objectives can
be associated with all civil liability judgments, even those presented as merely
compensatory. There is, however, a specific instrument to deter individuals from
violating the law:1 punitive or exemplary damages.2 These are also called aggra-
vated damages in the U.S.A. For private international law (PIL) purposes – that
is, for service of process abroad, or when recognition and execution of foreign
decisions are sought – the “label” or term used to designate damages (com-
pensatory, punitive, exemplary, aggravated) in the country of origin is only of
minor importance: what matters is their amount.

PIL provides an interesting perspective from which punitive damages can be 2

examined. To a great extent, PIL solutions in a given legal system depend
on the legal provisions applicable to civil matters in that system. However, a
lawyer facing a private international situation has to consider legislative and
jurisprudential solutions other than those of his own national system. In doing
so, he is forced to consider the principles on which the former system is based.
In this respect, it is one thing for an ordinary legislator to rule out a normative

* Prof. Marta Requejo Isidro is a Professor of Private International Law at the University of
Santiago de Compostela. This report was researched within the framework of the “Los daños
morales en la Unión Europea: armonización sustantiva, ley aplicable y competencia judicial
internacional” research project, financed by the Ministerio de Ciencia y Tecnología, Spain.
1
Punitive damages can also act as an incentive for the victim to sue, enabling him to incur costs
he would otherwise not recover, out of proportion to the compensation he is claiming.
2
On the different interpretations of “aggravated damages” in America and the rest of the Com-
monwealth see A.J. Sebok/V. Wilcox, Aggravated Damages (contained in this publication) no.
1 ff.
 238 Marta Requejo Isidro

option because he does not believe it is appropriate for regulating domestic

cases, and another for the said option not to be admitted into the system under
any circumstances, because it goes against the constitutional parameters on
which the system is based. With specific regard to punitive damages: it is one
thing for them not to be contemplated in Spanish, Italian or French positive
civil law, and another for them to be declared completely unacceptable due to
intrinsic and ontological reasons. In PIL we deal with the latter question and,
should we decide against punitive damages, the intensity of such a rejection is
still to be considered, as it can be graded according to a variety of factors such
as the link between the deed and the forum.

3 There are three sets of circumstances in which punitive damages can be con-
sidered from a PIL perspective. The first is where a claim is filed abroad, and
the national authorities there are asked to cooperate with the process: for ex-
ample, a national authority based abroad may be asked to serve a defendant
who resides in their forum with proceedings. The second is when a judgment
has been issued abroad ordering the defendant to pay compensatory and punitive
damages and a request is made for the decision to be recognised and executed in
the national authority’s forum. The third is where a claim sits before a jurisdic-
tion which, pursuant to its rules of conflict, has to apply a foreign law granting
punitive damages in the civil liability context. In the following report, each of
these aspects will be considered separately with reference to particular coun-
tries.3 Note that in practice, except for Germany, there have been few occasions
where an EU Member State has been asked to serve a document or recognise
a decision4 involving punitive damages: this has not, however, diminished the
doctrinal debate. The examination of punitive damages from a PIL perspective in
European countries shows that the association between civil liability and compen-
sation alone, is so deeply rooted that it not only rules out the possibility of award-
ing punitive damages in domestic cases: the idea goes even further and affects
situations with international aspects, especially in relation to the recognition of
punitive damages. It also affects, though to a lesser extent, the service of process.

4 Nevertheless, the opposition to punitive damages in the PIL context is by no

means unanimous.5 Rather, some European countries have shown an attitude
favourable towards punitive damages. Differences of opinion concerning how
to react to a request to serve a lawsuit, or whether to recognise foreign decisions
on punitive damages, can be found among academics in the same jurisdictions.
In practice, the recognition of punitive damages awards has been denied in
Germany and Italy, but such damages have been granted in Spain and, albeit

3
I.e. countries where actual cases exist or there are published doctrinal studies to which the author
had access.
4
As far as the author is aware, there has yet to be a case in which the problem is considered in
terms of applicable law.
5
See, for example, G. Cavalier/J.S. Quéguiner, Punitive damages and French Public Policy, 4–5
October 2007, Electronic copy available at http://ssrn.com/abstract=1174363, last page: “As to
whether punitive damages are admitted by French international public policy…we conclude
that: punitive damages may not be here yet, but they are on their way….”