Dissertations / Theses on the topic 'Recours collectifs (Procédure civile)'
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Du, Chastel de la Howarderie Antoine. "Les class actions et la procédure civile française." Paris 1, 2006. http://www.theses.fr/2006PA010310.
Full textFinn, Shaun. "Étude d'un recours évolutif : redéfinir la procédure Sui Generis du recours collectif québécois." Master's thesis, Université Laval, 2011. http://hdl.handle.net/20.500.11794/22744.
Full textNaanai, Noureddine. "Essai sur l'action de groupe." Paris 10, 2008. http://www.theses.fr/2008PA100191.
Full textOur society is characterized by the emergence of collective disputes linking individuals and powerful economic units. The interests at stake on the individual level is modest, the cost of action is very high compared to the relief sought, together with procedural barriers that discourage more people injured in a court. How to meet the new demands of justice involving an unorganized group of people who suffered the injury me? The introduction of a new action could be an appropriate response, this solution has been considered repeat edly by our lawyers. This is the introduction of group action. In America, Europe, the group has had a profound influence in the judicial and economic systems. With a view to bringing an action group in French. What fessons drawn from expériences?
Mairot, Adrien. "La société partie au procès civil." Besançon, 2010. http://www.theses.fr/2010BESA0001.
Full textThe French rules of civil procedure established first with regards to natural persons have been extended to artificial persons. The civil procedure code thus makes no special provision for these latter legal subjects. Artificial persons and natural persons do not, however, share the same characteristics. For example, all companies distinguish themselves by their unique image, which influences not only their legal personality but also the exercise of their rights. This specificity has an impact on the procedural regime applied to companies. Since legal personality is simply the status under law of the artificial person, if the character of an artificial person is artly determined by its image, that of the legal personality is also. Likewise, if appearances affect the exercise of companies' rights, the same is true with respect to their involvement in civil procedure. Accordingly, when a company becomes a litigant, certain peculiarities emerge. Admittedly, the procedural regime is basically the same as that which applies to natural persons. It does, however, undergo a number of adjustments. The jurisprudence of mainline railway stations perfectly illustrates this shift. In other words, despite a unitary presentation of legal subjects, the study of companies as parties in lawsuits reveals that judicial rules are sometimes adapted to take into account the specificities of these artificial persons
Falla, Elodie. "Les dommages de masse: Propositions pour renforcer l'efficacité de l'action en réparation collective." Doctoral thesis, Universite Libre de Bruxelles, 2016. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/239308.
Full textDoctorat en Sciences juridiques
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Lehaire, Benjamin. "L'action privée en droit des pratiques anticoncurrentielles : pour un recours effectif des entreprises et des consommateurs en droits français et canadien." Thesis, Université Laval, 2014. http://www.theses.fr/2014LAROD002/document.
Full textRegulation of competition is dualistic in France and Canada. On one side, public authority frame the market and impose sanction, if appropriate, to the practices contrary to existing legislation, and, on other side, the victims injured by antitrust practices, that is consumers and company, may bring a private procecussion based on the liability to obtain a compensation for the antitrust injury. They are respectively of public action and private action, also referred to as public enforcement and private enforcement of competition law. However, in the European Union, and particularly in France, the antitrust harm has no effective remedy. Indeed, in France, consumers had not, until the adoption of the collective redress, procedural means to access the judge of compensation. In addition, the French civil law proves too rigid to allow compensation for something as complex as the competitive harm. For its thinking about it, the French legislator has often turned to the Canadian and Quebec models to reform its bicentenary civil law. Indeed, the Quebec civil law is particularly flexible in disputes related to competition law. In addition, the Canadian Competition Act provides a right to compensation adapted to the constraints of the victims of anticompetitive practices. The author has sought to understand how the Canadian private enforcement mechanism works to assess whether this model, through the Quebec civil law, could inspire a reform of French civil law model adopted by the legislature in particular during the introduction of collective redress. The analysis is primarily civil law to allow a reading of private action that departs from conventional stereotypes of the American experience in this field. The ultimate goal of this comparison is to make effective use of the private businesses and consumers in French and Canadian rights following an injury resulting from a violation of anti-competitive practices
Basséne, Yannick Boniface. "La protection du consommateur par l'action de groupe en droit de la concurrence." Thesis, Sorbonne Paris Cité, 2018. http://www.theses.fr/2018USPCB147.
Full textAfter several decades of doctrinal and legislative debates, the procedure of group action was introduced in French law. The excesses of the American class action has always aroused in French legislators and some specialists in the field a certain mistrust of class actions. As a result, the repression of anti-competitive practices was essentially the responsibility of the enforcement public led by the relevant competition authorities. However, the 19th century is marked by the mechanization of human activities resulting from the industrial revolution and accentuated by the rise of technical progress. This revolution is at the origin of the proliferation of the damages suffered by the consumers because of the failure of the machines. In addition, other damages were added to the bodily injury. Examples include asbestos scandals, cigarettes and drug products, such as anti-depressants or hepatitis B vaccine. These bodily injuries that once affected health are of an economic nature today. In parallel with these evolutions, a report is made. Consumers have changed their behavior, they have become more protective and more and more demanding because they consider that compensation for damages is a right. Thus, they imposed political, judicial and economic debates on the question of compensation for the damage they suffered as a result of anti-competitive practices. Faced with this situation, the legal systems try to find solutions to improve the protection of the individual. Since household consumption is a fundamental issue, rules, including joint representation, were adopted with the aim of rebalancing professional / consumer relations and ensuring consumer protection. However, in the contemporary context of mass consumption, the increasing concentration of economic operations and the globalization of market exchanges, the expression and the treatment of individual remedies prove sometimes ineffective, sometimes insufficient, to respond adequately, on the judicial scene, the legitimate needs of defense of collective interests. Indeed, the traditional conception of civil liability, marked by ancestral individualism, proves to be inadequate when the harm suffered by the victim is of a relatively low pecuniary value at the individual level compared to the illicit global profits collected by the offenders. In order to remedy the ineffectiveness of the right to compensation for damages suffered, the French legislator, through the Hamon law, has offered the consumer a degree of autonomy in the implementation of legal remedies aimed at the repression of anticompetitive practices by the exercise of a right to easy compensation, which has the effect of reinforcing its capacity as a player in the field of competition law. In fact, the provisions specific to group action seem, at first glance, to give weight and influence to the consumer from whom he was previously supposed to be without. The legislator, under the recommendations of the European Commission, wanted to give consumers the necessary weapons to no longer be condemned to suffer the impact of the additional costs imposed between professionals involved upstream. Also, since this is a matter of effectiveness in terms of private remedies due to anticompetitive practices, will this issue be used to examine the means by which the victims of anticompetitive practices may be compensated. This thesis is essentially an analysis of the mechanism of group action to answer the question of whether this procedure effectively protects consumers. Thus, the author has sought to understand how the private enforcement mechanism works to assess whether this model contributes to consumer protection
Allard, Baptiste. "L'action de groupe : étude franco-américaine des actions collectives en défense des intérêts individuels d'autrui." Thesis, Sorbonne Paris Cité, 2016. http://www.theses.fr/2016USPCB128.
Full textThe French debate on collective actions is characterised by a central contradiction: while US class actions almost systematically serve as the starting point of discussions among French lawyers, they remain widely unknown to them. Being a reason for hope, admiration as well as fear, the American model of class actions can explain why the introduction of collective actions in French law was decided, why it was delayed for so long, and the many flaws of the resulting legislation
Manhaeve, Constance. "L'efficacité en procédure collective de la réserve de propriété." Toulouse 1, 2012. http://www.theses.fr/2012TOU10071.
Full textThe Retention of Title mechanism, recognized by the law as a security over assets since the Order of 23 March 2006, uses the property right for guarantee purposes. Actually, the retention of title suspends the transfer of property or good(s) until full payment of the price by the debtor. This legal technique affords an effective protection to the creditor who is faced with the initiation of collective insolvency proceedings against his contractual partner. This technique allows the creditor to be considered by the legal entities involved in the proceedings not only as the holder of a security right but also as the owner of the good. Thanks to this double-hatting approach, the position of the creditor is enviable compared with others creditors because providing, in particular, the opportunity to proceed to an action in restitution. However, this privileged position can otherwise conflict with the recovering of the company in difficulty and the principle of equality of creditors. The aim of this thesis is in the light of the legal and jurisprudential evolutions, to discuss the nature of this security interest and to challenge its effectiveness as regard from the one of the collective insolvency proceedings of the buyer
Guigou, Marie-Sophie. "Le droit aux voies de recours hiérarchiques en matière civile." Aix-Marseille 3, 2005. http://www.theses.fr/2005AIX32023.
Full textThe appeal's right suffer about his constitutional and european aknowlegement absence. Nevertheless, this aknowlegement is temperated. In fact, the right of appeals can be considered like a fondamental right, through the “nullity appeal”. Consequently, how conciliate the right of appeals in civil law which protect the justiciable rights but, also delay the processe issue and effect the justice celerity? Can we do find a just stability between the respect of justiciable rights and the good performance of justice?
Zambrano, Guillaume. "L'inefficacité de l'action civile en réparation des infractions au droit de la concurrence : étude du contentieux français devant le Tribunal de Commerce de Paris (2000-2012)." Thesis, Montpellier 1, 2012. http://www.theses.fr/2012MON10057/document.
Full textThe Green Paper and the White Paper on damages actions for breach of EU competition law found private antitrust enforcement in a state of “total underdevelopment” and proposed reforms to adress the identified obstacles. Empirical study of french case law does not support entirely these findings, because it’s important to distinguish between actions brought against competitors, and actions brought by consumers. Exclusionary practices litigated between competitors show reasonable success compared to similar cases. The reforms proposed by the European Commission concerning access to documents and quantification of damages would not bring any significant improvement to french law. However, damages actions in compensation of overcharges brought by direct and indirect purchasers seem doomed to failure, in the absence of a collective action and distribution mechanism. Debate is storming at EU and national level, but the considered options appear unconvincing. It is proposed a public mechanism for collective redress. Within their existing powers, competition authorities should review the fine policy to achieve collective compensation as private penalty. Substantial amount of fines should be inflicted when infringers cannot show they have taken active steps to provide compensation to consumers. In that case, a partial amount of the total fine should be dedicated to compensate consumer, directly or indirectly, in pecuniary or non-pecuniary form. Competition authorities should have the power to order infringers to create trust funds for that purpose
Gatheron, Sandrine. "Les recours en interprétation en droit." Lyon 3, 2002. http://www.theses.fr/2002LYO33016.
Full textHoonakker, Philippe. "L'effet suspensif des voies de recours dans le nouveau code de procédure civile : une chimère? : contribution à l'étude de l'exécution provisoire." Université Robert Schuman (Strasbourg) (1971-2008), 1988. http://www.theses.fr/1988STR30008.
Full textThe subject of this thesis is the fight between the fundamental and traditional principle of the suspensive effect produced by the main french legal remedies (appeal, stay of execution, appeal on a point of law ("cassation") and its theorical exception, the provisional enforcement, which at the beginning was conceaved to respond creditors' needs and to hinder debtors' dilatory actions. There is no exhaustive study on the rules governing provisional enforcement which has only be considered as a direct inpugner of the suspensive effect of legal remedies intended either to neutralize it (part. I) or, at the opposite, to restore it (part. II). The final ascertainment is a manifest expansion of provisional enforcement turned out as a procedural mean towards judicial efficiency, so that nowadays, it has absorbed the principle it should only have derogate and one may wonder on its constitutional aspect. The position is blamable and for the seek of the judicial machinery there is an urgent need for a reform tending to revive the suspensive effect of the legal remedies
Boonplook, Duangthip. "L’action civile des associations de défense d’intérêts collectifs : étude comparée en droit français et thaïlandais." Strasbourg, 2009. http://www.theses.fr/2009STRA4002.
Full textIn France, an association can entertain, as a rule, a civil action towards defending collective interests if that is authorized by a legislative text. Nevertheless, a part of French law admits that in the absence of legislative text, that an association can entertain such a civil suit for the defense of collective interests which come within its business purpose in two hypotheses: on the one hand, it is authorized to act for the defense of the collective interests of its members, otherwise named « the defense of the collective interest to egoistic purposes »; , and on the other hand, it is authorized to act for the defense of some general causes, named otherwise « the defense of the collective interests for altruistic purposes ». In relation to criminal proceedings, an association can participate in such proceedings in view to obtaining the condemnation of culprit defendant, and an indemnity arising from the condemnation. However, punitive damages are not applied by the French criminal courts in relation to associations. In Thailand, only consumers’ associations are authorized to act by virtue of article 40 of the Law of Consumer Protection of 1979. Such an association can entertain civil actions for the defense of collective interests before all courts. There is no principle of punitive damages in Thailand because the legislator considers that only a civil judge can award such damages. However, consumers’ associations are not the only organ that are authorized to act in law as agents in the field of consumer protection can likewise act by virtue of article 39 of the Law of Consumer Protection of 1979. In France, an association can seek punitive damages where it acts for the defense of collective interest of its members. In that case, she is to obtain beforehand a mandate given by each of its members. Further to the considerable development Group Action in the United State and Quebec, a workgroup was set up in 2005 on Jacques Chirac’s presidency, to elaborate a bill in favour of consumers. Because of lacunas and incoherence, the bill was not promulgated as law, but was removed from the order of the day of the Council of Ministers in February 2007. In Thailand, a Group Action bill was presented by the Council of the State. This bill is totally influenced by the Group Action model of the United State. It covers a vast field of application as it applies not only to torts, but also to disputes relative to environmental and consumers’ protection. This leaves however, a lot of questions without answers (as for example: the question relating to Funding Assistance). This project did not succeed. But we consider this project as a first proof of the considerable development of the Thai civil procedure
Azar-Baud, Maria José. "Les actions collectives en droit de la consommation : Étude de droit français et argentin à la lumière du droit comparé." Paris 1, 2011. http://buadistant.univ-angers.fr/login?url=https://www.dalloz-bibliotheque.fr/pvurl.php?r=http%3A%2F%2Fdallozbndpro-pvgpsla.dalloz-bibliotheque.fr%2Ffr%2Fpvpage2.asp%3Fpuc%3D5442%26nu%3D125.
Full textAntonini-Cochin, Laetitia. "La situation du conjoint d'un débiteur soumis à une procédure collective." Nice, 1999. http://www.theses.fr/1999NICE0038.
Full textCampergue, Lucie. "L'erreur judiciaire dans le procès civil." Thesis, Toulouse 1, 2021. http://publications.ut-capitole.fr.
Full textLe résumé en anglais n'a pas été communiqué par l'auteur
Chahounka, Tolomè Eliane. "Le rapprochement des droits français et américain de responsabilité civile." Paris 13, 2010. http://www.theses.fr/2010PA131001.
Full textEscourrou, Jean-François. "L'instance d'appel dans le procès civil." Thesis, Toulouse 1, 2017. http://www.theses.fr/2017TOU10057/document.
Full textThe appeal body has always been considered by the French Law as a guarantee of equitable justice. It allows to redress errors committed by a trial judge who resolved a dispute in the first place. Thereby, the appeal enables a repetition of the trial before the appeal court, so that it may be examined again on points of fact and law. Thus, this plea approach has been described as a reformation approach. However, it proved impossible to demand an exact similarity of the dispute elements from one instance to another. As a consequence, and as the texts and jurisprudence had to take into consideration practical requirements, dispensations have been allowed. Since then, the appeal supported renewal of the trial, by incorporating previously unseen elements before the court. The appeal was then refered to as an achievement approach. This evolution gradually appeared as excessive, thereby justifying the need to control the appeal for a better administration of justice. The body of appeal oscillates constantly between these two functions, the repetition and the renewal of the civil trial. The features of this institution inevitably deserved further investigations and answers that this study proposed to carry out and identify
Crépin, Sophie. "Les sentences arbitrales devant le juge français : pratique de l'exécution et du contrôle judiciaires depuis les réformes de 1980-1981." Paris 2, 1994. http://www.theses.fr/1994PA020048.
Full textArbitration is a private judicial system wich enables legal actions to be withdrawn from established jurisdictions and resolved by individuals specially empowered for that particular purpose. However, the parliamentary law and, in france, the statutory laws of 14th may 1980 and 12th may 1981 allow the parties to bring the matter before a judicial court should they wish to contest the arbitrator's decision or see it implemented. Arbitral sentences thus submitted to judges and the latter's rulings, often accompanied by specific comments, have never been thoroughly analysed. The objectif of present study is to bridge this gap by drawing on the wealth of judicial sources to analyse arbitral deisions, their enforcement and the controls to which they are submitted by the judiciary. In the first part, 2. 000 cases of arbitration have been examined under their statistical, legal, sociological and economic aspects. They have, first of all, been classified according to their nature (ad hoc ou institutional). The profile of the actors in the arbitration case, that is to say the litigant parties and the judges, was then drawn up. Finally, both the object and the amount of money invol ved in the arbitral lawsuit have been described
Yaboue, Djanbédja Koffi. "La recevabilité de l'appel et du pourvoi en cassation contre les jugements avant dire droit en matière civile et administrative : contribution à une théorie générale des jugements avant dire droit." Metz, 2000. http://docnum.univ-lorraine.fr/public/UPV-M/Theses/2000/Yaboue.Koffi_Djangbedja.DMZ0002.pdf.
Full textVillanova, Doriane. "Maintien du droit au paiement des créanciers antérieurs lors d'une procédure collective." Thesis, Toulouse 1, 2018. http://www.theses.fr/2018TOU10053.
Full textThe opening of a collective insolvency proceeding requires, out of principle, prohibition of payment of any debts arisen prior to the opening judgement. Even though this governing principle of bankruptcy law seems peremptory at first, one has to say that it is accompanied by exceptions. Some creditors, indeed, are able to benefit from immediate payment during the observation period, in such a way that their rights to claim are protected. Such a dispensation from the prohibition of payment evokes and arouses interest as regards its purposes and beneficiaries. Actually, although payment is generally perceived as a mechanism that favors the creditor, its comprehension and function seem like renewed within a collective insolvency proceeding. Thereby, the payment evolves into a mechanism carried out in favor of the debtor, in other words, the payment is instrumentalized and used as a tool supporting the continuation of his activity. It is only in specific and limited circumstances that the payment is once again considered as a mechanism for the exclusive benefit of the creditor
Cagnoli, Pierre. "Essai d'analyse processuelle du droit des entreprises en difficulté." Caen, 1999. http://www.theses.fr/1999CAEN0052.
Full textRocheteau, Frédéric. "L'indivisibilité en droit judiciaire privé." Paris 1, 2002. http://www.theses.fr/2002PA010292.
Full textBézert, Adrien. "Les effets de l'extension de la procédure collective pour confusion des patrimoines." Thesis, Montpellier, 2017. http://www.theses.fr/2017MONTD051.
Full textExtending a collective insolvency procedure in the case of estate compels a number of debtors to comply with a unique collective procedure. Recent reforms have deeply modified the nature of this mechanism: for a long time perceived as a sanction, it is now used as a simple tool for restructuring, and to an extent a tool for protection. Its consequences were once dreaded, whereas now they are coveted. This thesis enhances the complementarity that exists between the latter when dealing with situations of estate confusion and offers several solutions enabling foreseeability. Furthermore, it opens up to several lines of thoughts that can correlate cases when resorting to this mechanism to the particularly original effects generated by the latter
Guastella, Maxence. "Les principes directeurs des répartitions de fonds en procédure collective." Electronic Thesis or Diss., Université Côte d'Azur, 2022. http://theses.univ-cotedazur.fr/2022COAZ0044.
Full textHow can the creditors of a company that is the subject of collective insolvency proceedings be paid when it is not possible to do so ? This is the sensitive issue that fund apportionments seek to resolve. Often, the amount of assets to be distributed falls short of liabilities to be discharged. Nevertheless, the legal system cannot create an asset to correct this negative balance. In view of the lack of funds, the law can only arbitrate between the many interests involved. However, the way in which such arbitration works is extremely problematic. The apportionment procedure is so complex as to be incomprehensible, to the extent that it is more or less impossible to carry it out in a satisfactory manner. Determining the perimeter of distributable assets ; identifying the persons authorized to participate in apportionments and the attributes to be taken into consideration ; defining the order of payments, i.e., prioritizing creditors and establishing an order for distributions ; and correcting any apportionment errors are all steps that are at once necessary and unworkable. In order to make sense of all this, legal theorists and practitioners have urged the authorities to issue guidelines and, in the absence of any response to their request, have them-selves set about drafting some. Starting from the observation that collective insolvency proceedings can be seen as a collective seizure, and, therefore, as collective distribution governed by essential rules that are specific to it and distinct from those governing the ordinary law of compulsory enforcement and distribution proceedings, this study draws from such work in order to present fund apportionments in collective insolvency proceedings in the form of a dynamic system of guidelines seeking to clarify their legal regime and render it practicable
Alain, Alex. "La distinction entre recours en annulation et exequatur en droit français de l'arbitrage international." Electronic Thesis or Diss., Paris 1, 2023. http://www.theses.fr/2023PA01D036.
Full textQuestioning the distinction between action for annulment and exequatur raises the question of the legal regime applicable to each of these mechanisms for reviewing arbitral awards. By their very nature, these mechanisms appear to be distinct given that they fall into two categories of procedures that French law does not conflate: « voies de recours » (judicial remedies) and exequatur. The application of the rules of French procedural law therefore requires, in principle, to distinguish between the action for annulment, which is a « voie de recours », and exequatur. However, if there is one notion that underlies all aspects of French international arbitration law, it is that of “autonomy”. The result is that, despite the express reference to well-known notions of French procedural law- i.e., exequatur and « voie de recours »- a special meaning appears to be ascribed to those notions under French international arbitration law. By erasing the differences which traditionally separate the « voies de recours » from exequatur, French international arbitration law seems in many respects to conflate the action for annulment and exequatur. Thus emerges the idea that arbitral awards are subject to a single review procedure. This confusion is at the origin of numerous uncertainties. To overcome this situation, the study proposes to apply the rules of French law relating to « voies de recours » and exequatur, to arbitral awards
Marion-Nau, Sophie. "La prévention du dommage en droit civil français." Toulouse 1, 2005. http://www.theses.fr/2005TOU10075.
Full textCompensation for damage, although unquestionable in our regulation system, no longer is ideological. It is being aware of the necessity to intervene ahead of prejudice that we witness today and that appears in the eyes of the general public under the denomination of the principle of precaution. Such an aim however isn't quite new. When confronted to the repetitive or collective damages the Lawmaker didn't wait for this principle to emerge before setting up and array of preventive regulations whose applications was essentially entrusted to specific associations and more restrictively to the judge. In the same way, Civil Law completes the existent regulations by setting up its own rules of prevention, allowing experience to express itself feely by letting appear a suppler and often efficient spontaneous prevention. This set of preventive regulations, although it exists, can however show fautly that should be corrected. To reinforce the efficiency of prevention implies more daring and trusting judges. However, it is paradoxal if such our objective demands a reinforcement of dissuasive prevention, which is implemented when damages is being repaired since anticipation and prevention are closely limited by time and the respect of opposite interest. By optimising the curative function of civil responsability, prevention can become worthy of interest, which implies new judiciary techniques which were up to now, hidden or unknown in our law system, such as the use of punitive damages or the acceptance of collective actions
Tramarin, Sara. "La tutela giudiziale e stragiudiziale del consumatore nel diritto dell’Unione europea." Thesis, Strasbourg, 2017. http://www.theses.fr/2017STRAA007/document.
Full textThe thesis analyzes, under various aspects related to private international law and international civil procedure of the European Union, the status of the protection offered to the European consumers in their international contracts, in particular in relation to the objectives and in the context of the single market. The thesis is divided into three chapters. The first chapter deals with consumer protection in the international private law of European Union (regulation (UE) 1215/2012 and regulation (CE) 593/2008). The second chapter deals with the protection offered to consumers by european international civil procedure with reference to individual and collective litigations. The third chapter deals with alternative dispute resolution (ADR) and with on-line dispute resolution (ODR) and analyzes EU directive 2013/11/UE and regulation (EU) 524/2013
La tesi analizza, sotto vari aspetti relativi al diritto internazionale privato e processuale dell’Unione Europea, lo stato della protezione offerta al consumatore europeo nei contratti e nelle controversie internazionali, con uno specifico riguardo alle tutele di carattere processuale e giurisdizionale. La tesi si articola in tre capitoli, che investono gli ambiti in cui tale tutela può esplicarsi, ovvero, l’individuazione di un foro e di una legge applicabile favorevoli agli interessi del consumatore, la semplificazione delle regole di procedura nelle controversie individuali internazionali, la possibilità di dare luogo a procedimenti transfrontalieri collettivi e la creazione di un sistema efficace di risoluzione delle controversie internazionali in via stragiudiziale anche on-line. Il primo capitolo ricostruisce dapprima il sistema di diritto internazionale privatodell'Unione europea in materia di contratti di consumo, dando conto del contesto politico ed economico in cui si inserisce ed alla cui luce devono esserne letti gli obiettivi. Vengono quindi individuati i principi e gli obiettivi che fondano le norme di diritto internazionale privato in materia di contratti internazionali del consumatore, le quali si caratterizzano per l’essere ispirate a finalità materiali, ovvero, volte a permettere di individuare un foro competente ed una legge applicabile che siano in grado di bilanciare tra loro le esigenze dei consumatori e degli operatori del mercato, con la conseguenza di favorire l’esplicarsi degli scambi commerciali e della concorrenza nel mercato unico. Ciò avviene garantendo al consumatore l’applicazione della legge e la competenza del foro a lui più prossimi, ovvero quelli del suo paese di residenza abituale (la cui coincidenza permette peraltro una riduzione dei costi delle liti transfrontaliere) e la prevedibilità delle soluzioni agli operatori del mercato.Il capitolo traccia quindi lo sviluppo normativo e giurisprudenziale delle norme di diritto internazionale privato europee in materia di contratti del consumatore, prendendo in particolare in considerazione le più recenti sentenze della Corte di Giustizia che, dal 2010 ad oggi, hanno ridefinito l’ambito di applicazione delle norme contenute nel regolamento (CE) 44/2001 (Bruxelles I), oggi rifuso nel regolamento (UE) 1215/2012 (Bruxelles I-bis), e nel regolamento (CE) 593/2008 (Roma I), insistendo sulla definizione del concetto, volutamente aleatorio, di “attività diretta” e sul suo ruolo di preminenza nel connettere la fattispecie contrattuale allo Stato della residenza del consumatore per permetterne la competenza dei giudici e l’applicabilità della relativa legge. Viene svolta infine una analisi critica sull’interpretazione fornita dalla Corte di Giustizia che rischia, nel concreto, di rendere le norme in oggetto applicabili in maniera variabile dai giudici nazionali, garantendo alle volte una tutela troppo estesa o troppo ristretta al consumatore, senza riguardo per l’esigenza di certezza giuridica degli operatori del mercato
Mardon, Delphine. "Les voies de recours dans le droit de la Convention européenne des droits de l'homme." Thesis, Grenoble, 2013. http://www.theses.fr/2013GREND007.
Full textThe influence of the law stemming from the Convention for the Protection of Human Rights and Fundamental Freedoms no longer need to be demonstrated. This text provides people with an increased protection of their fundamental rights. This assertion can not be restricted to the rights that are clearly stated in the Convention or those that are drawn by the European Court of Human Rights thanks to its dynamic and evolutional interpretation. Remedies constitute a way to contest a judicial decision. On account of this definition, they do not correspond to a right directly protected by the European human rights system. That does not mean they are ignored by this system. On the contrary, European judges give their full attention to them. This thesis built up from the European decisions and judgments underscores the relations between the European Convention and remedies. It is therefore necessary to determine what kind of relations. If those two mechanisms have the idea of control in common, the European judges intervene only when the domestic proceedings in which remedies are brought is ended. This organization allows to highlight the way the European Court looks upon remedies when it carries out its own control. The way it grasps remedies is then not univocal. The European Court does not only control the enforcement of procedural guarantees of the Convention by remedies. These guarantees also are a means used by the European Court to ascertain the respect of all Convention rights. The discovery of these two aspects asks for a global qualification of the relations between the European Convention and remedies. Remedies’ use in the heart of the review of conventionality, as an instrument or an object, shows that these relations favour a mutual strengthening of remedies as well as the Convention rights system of protection
Deirmendjian, Élisabeth. "La stratégie d'anticipation procédurale en matière civile." Electronic Thesis or Diss., Toulon, 2012. http://www.theses.fr/2012TOUL0068.
Full textThe civil procedural assessment strategy allows for a proper choice between the various existing rules depending on the aim. The assessment of the trial and the strategy at the heart of the lawsuit sets aside the scope of individual liberty that the defendant is entitled to during the civil trial. During the assessment of the origin of the dispute or the consideration of the methods for resolving it, the contractual technique is a matter of avoiding judicial recourse as part of an assessment strategy. Once the litigation has been entered into, the choice of suing involves assessing the chance of success of the lawsuit compared to the expected result. Sometimes what is preferred is alternative dispute resolution methods, or even recourse to a private judge (arbitrator). But if a lawsuit is entered into, it will be necessary to provide the defendant with answers to a certain number of questions that are necessary for developing the strategy that he will use throughout the case. In order to reduce legal risk, several parameters must be taken into account, such as the current state of legislation, jurisprudence, and opponents’ responses as well as those of the Office of Justice. The effectiveness of the assessment strategy will vary depending on the degree of predictability of the different elements which form the subject of this study
Peketi, Essodjilobouwè. "Essai critique sur la notion d’homologation judiciaire." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020078.
Full textJudicial approval shows in a remarkable way how the function of judging contains different aspects. This Judicial activity is in itself a judicial procedure which ensures the control of agreements validly concluded between parties or which will become valid if their conformity with the requirements of substantive law is judicially recognized / if their conformity with the requirements of substantive law is established/ if these agreements fulfil the conditions required by the substantive law.If there is no doubt that the process of judicial homologation is unique, it must be however observed that the homologation procedures according to their purposes are distinct from each other. In fact, the procedural rules of judicial approval/judicial depend considerably on the substantive law to be applied. That’s why, it can be said in this context, that substantive law controls procedural law; for it is substantive law which determines the judge's procedural conduct when judicial approval is requested. The degree or level of the judicial control exercised over the agreements of the parties is a proof of this.What about the registration judgment regime? It is inspired by the substantive law of each subject in which the registration judgment is rendered. We could give more examples. Let us confine ourselves to the authority of res judicata, allowed in the approved agreement on divorce by mutual consent, and refused in the approved notarial deed on change of matrimonial regime. The authority of res judicata is also considered to be admitted for certified transactions in administrative matters, but rejected for certified transactions in civil matters. These brief indications probably support the idea that judicial homologation is primarily a matter of substantive law. In other words, contrary to what is often said in doctrine, homologation is a matter of substantive law before it is a procedural matter
Marcel, Aline. "L'office du juge civil quant au relevé des moyens de droit." Thesis, Strasbourg, 2018. http://www.theses.fr/2018STRAA012.
Full textThe function of the judge, as for raising pleas in law, is governed by civil trial’s leading principles, more specifically by article 12 of the French code of civil procedure. As a result of the 1960-1970 reform, which was intended to strengthen the role of the judge, the aim of the reformers has been difficult to achieve because of its writing ambiguities. After thirty years of a hesitant legal precedent, the Court of cassation in plenary assembly, in 2007, finally laid down the principle whereby the judge only has the ability to rule out the legal basis pleaded by the parties if it turns out to be incorrect. However, under the influence of the European Court of Justice case law, exceptions in favour of the obligation are increasing. Furthermore, the procedural context is different from the one in which the reform was passed. There have been upheavals regarding the requirements expected from the parties regarding the law (concentration of pleas’ principle) and the structure and purpose of legal remedies (appeal before the Court of appeal or the Court of cassation). The disparity between the function of the judge and the role of the parties is obvious. With this observation, by considering the censorship possibilities of the failing judge, this thesis proposes leads for a reasonable strengthening of the function of the judge to offer to the litigants a best guarantee of their rights
Deirmendjian, Élisabeth. "La stratégie d'anticipation procédurale en matière civile." Thesis, Toulon, 2012. http://www.theses.fr/2012TOUL0068/document.
Full textThe civil procedural assessment strategy allows for a proper choice between the various existing rules depending on the aim. The assessment of the trial and the strategy at the heart of the lawsuit sets aside the scope of individual liberty that the defendant is entitled to during the civil trial. During the assessment of the origin of the dispute or the consideration of the methods for resolving it, the contractual technique is a matter of avoiding judicial recourse as part of an assessment strategy. Once the litigation has been entered into, the choice of suing involves assessing the chance of success of the lawsuit compared to the expected result. Sometimes what is preferred is alternative dispute resolution methods, or even recourse to a private judge (arbitrator). But if a lawsuit is entered into, it will be necessary to provide the defendant with answers to a certain number of questions that are necessary for developing the strategy that he will use throughout the case. In order to reduce legal risk, several parameters must be taken into account, such as the current state of legislation, jurisprudence, and opponents’ responses as well as those of the Office of Justice. The effectiveness of the assessment strategy will vary depending on the degree of predictability of the different elements which form the subject of this study
Hervas, Hermida Clara. "La notion d’action de groupe : étude de droit comparé." Thesis, Paris 10, 2013. http://www.theses.fr/2013PA100087.
Full textThe aim of this thesis is to offer a specific notion of the idea of group litigation, in a procedural and comparative perspective. The mass consumer society in which we live has generated a style of litigation that involves a vast number of people. Grouping claimants together in a class action is meant to resolve this sort of litigation. But comparative law illustrates the complexity of the topic. A large number of different models of class action exist. Terminology is vast and often spans interchangeably terms such as group litigation, collective actions, class action, procedural models and pilot decisions. Each model shows different ways to solve the same problem. In spite of this, we can still find a specific framework with distinct and typical characteristics. However, this specific notion can only be procedurally based. Clearly, resolving this type of litigation must be viewed from this perspective. Judicial process is the way by which to protect rights and legal and legitimate interests without considering their nature. But it is at procedural level that protecting this type of situation raises the most problems. Class actions therefore naturally fall within this legal discipline, and bring to light a specific idea that makes the judge the linchpin when deciding the outcome of litigation
Hilmy, Nadia. "Essai sur le perfectionnement du droit des entreprises en difficulté." Thesis, Tours, 2012. http://www.theses.fr/2012TOUR1007.
Full textA company in distress is a ground for conflict between different interests. Studies on the development of legal rules allow determining the interests protected in law and fact. The latter emerge from the content and function of the notion of the company’s interests. The equilibrium is found between economic rationality and legal rationality. However, it faces the provisions of the laws of layoffs inappropriate to the situation of companies in insolvency. In fact, the absence of this scheme in the backup procedure does not affect its effectiveness especially as it is part of a movement of anticipation and contracting. The judicial law of firms-in-difficulty refers to the judicial rules governing procedural law and the distribution of power among stakeholders. If the debtor's situation has improved, the place given to creditors, particularly in the procedure involving creditors’ committees, is not audacious. Consultations of common law resumes at the slightest incident. Much trouble for nothing! Our study is not only justified by the economic and social context, but also because of the specificity of procedural laws. After the latest reforms, an inventory was necessary
Fos, Elodie. "Les catastrophes sanitaires sérielles et la recherche judiciaire des responsabilités." Thesis, Mulhouse, 2017. http://www.theses.fr/2017MULH6271.
Full textSerial sanitary disasters now punctuate the history of damages. In facing such risks, progress made in recent years has focused on prevention and upstream processing through the implementation of a strong legislative arsenal with preventive purposes. Yet, this legislative arsenal based on "avoidance" cannot be effective without a corresponding "sanctioning" mechanism. However, our classic liability law is ill equipped in terms of searching for the truth, the causes of such events and effectively engage responsibilities. This sense of impunity comes from the inadequacy between the classic liability law and the particularities of serial sanitary disasters. The progress in adapting our liability law to this type of events is already remarkable. Nonetheless, the construction of an actual law for natural disasters remains an open question.The subject of this study is precisely to study the specificities of sanitary disasters, particularly serial ones, in order to see how our liability law adapts to it. The purpose here is to propose possible solutions to further develop, complete or even reform our liability law to align judicial accountability research with the specificities of serial sanitary disasters and thus make it more efficient and effective.The specificities of serial sanitary disasters firstly have an impact on substantive law that governs civil, administrative and criminal liability (Part I). Furthermore, the difficulties posed by serial sanitary disasters also impact procedural law and the judicial system. Indeed, we must not forget that procedural rules condition the effectiveness of the liability law rules (Part II).But before getting into the substance of the analysis, it will be necessary to agree on the notion of serial sanitary disaster. In fact, it is necessary to conceptualize a notion that can become the crucible of a legal model
Abdel, Fattah Lara. "Appartenance à un groupe et déroulement du processus de défaillance des entreprises : application au cas de la France." Thesis, Paris 10, 2016. http://www.theses.fr/2016PA100044/document.
Full textThis thesis is a contribution to both the literature on corporate bankruptcy and the literature on the internal capital markets and business groups. Using data relative to a sample of bankrupt firms over the period from 2006 to 2012, it proposes to rethink bankruptcy in light of two facts. The first one relates to the specificity of the French legal bankruptcy system which, despite its clear pro-debtor orientation, fails to save a high proportion of bankrupt firms annually. The second concerns the growing number of firms affiliated to business groups within the French productive system and the conciliation between group affiliation and the limited liability principle within business groups’ members. Through a multidisciplinary approach combining law and economics, this thesis proposes to analyze bankruptcy as a process which starts with the opening of a bankruptcy procedure and ends with the end of firm difficulties or the end of bankruptcy procedure when firm recovery becomes clearly impossible. Four chapters serve this objective.The main insights gained from the results emerging from all four chapters are consistent with a strong influence of group affiliation and group characteristics, limited to the first two steps of the bankruptcy process; namely the risk of filing for bankruptcy and the chance to benefit from a reorganization attempt relatively to liquidation. This suggests that business groups are involved in the financial support of their affiliates as long as the latter are financially sound and economically viable. Once an affiliated firm is subject to a bankruptcy procedure, its affiliation to a business groups is no longer an advantage over stand-alone firms
Habre, Carla. "La subsidiarité en droit privé." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020030.
Full textSubsidiarity which constitutes a leading principle of European Union law has also its place in private law. It is a functional notion that can only be comprehended through its applications, the search of the place that it occupies in private law passes through analyzing the various functions which it has. It is an autonomous notion which has to be distinguished from close situations where there’s a concept that is elaborated according to another one said to be principal or primary. It has to be for instance distinguished from the links existing between the principal and the accessory, from suppletivity and from equivalence. Revealed and known as a characteristic of the legal action of enrichment without just cause, it has spread to various topics of private law. In private law subsidiarity performs two functions: the first one aims to preserve the primacy of the principal, and the second one, aims to assure the substitute of the principal. Its first function is illustrated by the obligation of the guarantor, by the obligation of the partners for the liability of debts in civil companies and other assimilated societies, and also by the subsidiarity of the enforcement proceedings, more precisely, the one related to the seizure of goods. In addition to these illustrations related to substantive law, subsidiarity is also illustrated in civil procedure; it is the one which is revealed to the course of the process. Its second function is illustrated by the legal action of enrichment without just cause, as of a subsidiary legal action, and by the nullity recourses, as of subsidiary remedies at law, and also by the subsidiary vocation of the common law, illustrated by the common rules of civil liability. Subsidiarity is employed to avoid any subversion of the legal order. It contributes to fill the gaps of Law and to make the legal system more efficient
Stavrinaki, Stamatia. "Le régime des communications individuelles présentées en vertu de traités onusiens relatifs aux droits de l'homme." Thesis, Paris 2, 2015. http://www.theses.fr/2015PA020065/document.
Full textThe empirical construction of the United Nations human rights treaty system was based on a minimum consensus among states. Treaty bodies and monitoring procedures of treaty obligations are part of this consensus. Besides the reporting procedure, States parties have reached consensus on an individual complaints procedure. The procedure emerged after polarization and hesitation among States over the establishment of an international human rights court and the status of the individual in international law and was reproduced in without major modifications. So individual complaints procedures under United Nations human rights treaties have common procedural and institutional features. Furthermore, treaty bodies have engaged in a process of harmonization of their working methods giving us reason to be optimistic about the unity of United Nations human rights treaty system. Besides common institutional and procedural aspects, the latest treaties establishing individual complaints procedures codify the evolutionary practice of older treaty bodies, especially the Human Rights Committee. By affirming their determination to protect the object and purpose of human rights treaties and to guarantee the effectiveness of individual complaints procedures, treaty bodies strengthen implicitly the judicial aspects of the procedure. However, in the absence of judicial authority and other institutional tools for imposing on States parties’ treaty obligations, the treaty bodies are forced to seek the right balance between firmness and diplomacy without being able to ensure States parties’ cooperation. Nonetheless, observance of treaty obligations under the individual complaints procedure is a part of a long and continuous process in which treaty bodies due to their expertise and competences have a predominant role. The standardization of the individual communications procedure in the United Nations human rights treaty system strengthens the position of the individual in international law and foregrounds victims that have long remained in the shadows. By asserting their authority to interpret treaties and to ensure the effectiveness of the individual communications procedures, the treaty bodies contribute to the universalization of normative principles and their effective and coherent implementation
Alias, Aymeric. "La société plaideur : plaidoyer pour la reconnaissance d'un droit commun du contentieux sociétaire." Thesis, Aix-Marseille, 2015. http://www.theses.fr/2015AIXM1026.
Full textGoing to court for a company involves many procedural issues. Since those issues are not sufficiently taken into account by legislators or ideally part of a compilation within a specific form of codification, they may be held responsible for inevitable practical difficulties. Many questions arise : concerning rights likely to be brought up before a judge by a company or against a company ; its ability to benefit from an action ; the power or quality of those who claim to represent the company before a judge, the competence of a court to hear the case at hand ; managing procedural time in line with the pace of corporate life ; drafting and communicating the procedural acts issued in the company’s name or for the company ; ensuring the court rulings taken in the company’s presence be enforced. The obvious risk is procedural failure. The difficulty stems from the existential and functional ambiguities of this a-typical company. At first sight, procedural does not seem to be able to adapt to the nature of the claimant company. In order to leave room for some humble but useful certainties in this area, one must coherently gather all that constitutes the substance of companies’ procedural law, based on an interpretation that will make it understandable. That is the aim of the present dissertation while dealing with practical difficulties and suggesting suitable solutions. “The Claimant Company” is a plea for the recognition of the governing law in disputes between companies, which deserves to be part and parcel of the many implications of jurisprudence
Koray, Zoé Zeynep Can. "Le préjudice de l'actionnaire." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020072.
Full textThe subject of shareholder damages has seldom been studied in France. Nonetheless, it is a topic of much discussion and debate in legal circles. Unlike under some foreign laws, French law rarely permits the direct compensation of shareholder damages because of the summa divisio between the personal damage (recoverable) and the damage of the company (not recoverable). However, this distinction is not relevant both in terms of theory and practice. More doubt is cast on this distinction where the potential damage arises from an infringement of the penal law, such as the use of false or misleading information to induce shareholder reliance or action. Furthermore, the internationalisation of capital introduces conflicts of law and jurisdictional questions, asking the courts to first determine whether they are the proper authority to hear a shareholder’s case, and which nation’s laws to apply.This study presents a critical analysis of the positive law and proposes avenues of reforming French laws concerning shareholder damages. Should the existing remedies be changed ? Which remedies should be adopted to reverse the strict trends in French law against adequately compensating shareholders’ losses ?
Bédard, Michel. "Les recours collectifs contre plusieurs défendeurs." Thèse, 2006. http://hdl.handle.net/1866/2536.
Full textA class action is a procedure which enables one person to sue without a mandate on behalf of aU members of a group of which he or she is a member. This procedure can be used to sue more than just one defendant. There are two different types of class actions against multiple defendants. In the frrst type, aU members have a cause of action against all defendants. There are also class actions where aU members plead an identical cause of action against multiple defendants whom wrongfuUy and similarly acted toward one of the members. The admissibility of this latter type of class actions against multiple defendants has been questioned. The petitioner would not have a sufficient legal interest to bring an action against the defendants whom did not cause him or her any prejudice. He or she would not be able to satisfy the requirements of the Code of civil procedure regarding class actions. However, it appears from the mIes that govem class actions that the petitioner pleads not only his or her personal cause of action, but also pleads the cause of action of aU group members. Thus, the petitioner cannot be reproached for not having a legal interest or a cause of action against aU defendants insofar that there is, for each defendant, at least one member of the group whom has a legal interest or a cause of action against him or her. The other requirements of the Code ofcivil procedure do not bar the authorization to institute a class action against multiple defendants.
"Mémoire présenté à la Faculté des études supérieures en vue de l'obtention du grade de maître en droit". Ce mémoire a été accepté à l'unanimité et classé parmi les 15% des mémoires de la discipline. Commentaires du jury : "Le jury vous encourage à publier".
Fortier, Carole. "Les tiers dans le contentieux arbitral des investissements internationaux : de l'intervention au recours direct." Thèse, 2013. http://hdl.handle.net/1866/10063.
Full textInternational arbitration has remained an exclusive domain sovereign states until, in the late 50s, came the first bilateral investment treaties (BITs). The main feature of these BITs is undoubtedly the right, granted to investors, to direct international arbitration against recalcitrant States, an alternative to often ineffective local justice. More recently, in 1998, the appellate body of the WTO went to accept the opinion of an independent amicus curiae in a dispute between State members. Today, the admission of such opinions is clearly provided for in several recent BITs. But if investors benefit from a right of action before a neutral international arbitration body, the situation is quite different for the local population, who is often affected by the presence of foreign investors on its territory. The right to submit an opinion cannot replace the right to legal action. This therefore raises one question: in the current context of international investment law, is it possible for third parties (non signatories of BITs and not parties to the dispute) are entitled to a remedy direct international arbitration? We are of the opinion that the answer to this question is: yes. And the context of investment arbitration, because of the right to direct arbitration against States already granted to investors, constitutes a fertile ground for the implementation of this right of action in favour of third parties. The objection based on the absence of the parties’ consent to such right of action has been set aside in many international arbitration cases where the scope of consent has been extended to include non-parties or to submit to arbitration matters not contemplated at first. Also, the objection based on the absence of legal standing of third parties in International Law proves to be theoretical as foreign investors already have access to international justice despite the lack of this quality. There remains to determine what substantial International Law will constitute a valid legal basis for a third party claim. We will see that there exists legal instruments and international principles and that their violation by States or investors may result in the obligation to compensate the prejudice suffered, as well as it is possible to clearly define and indentify who the third parties could be.
Blondin, Stewart Daniel. "La fonction de l'intervention des tiers en droit judiciaire privé québécois." Thèse, 2012. http://hdl.handle.net/1866/9184.
Full textThis study is a characterization of the procedural mechanism allowing intervention or joinder of third parties in Quebec's civil procedure law. Consisting of three parts, it traces the history of this procedure, revealing its perennial longevity (Part one). A theory of its contemporary function is proposed, according to which its legal validity rests on its legitimacy and usefulness (Part two). Finally, the place of third party intervention in civil procedure law reform is analysed from a sociological and comparative standpoint, exposing its fundamental incompatibility with ADR (Alternative dispute resolution) and finding that the judicial power–in foreign law–to order intervention as of right is a safegard against unfairness worth incorporating into Quebec's procedural law (Part three).