The Enforcement of Punitive Damages Awards Between United States and Europe: An Introduction for U.S. Practitioners

• Author: Maria Veronica Saladino
• Position: Associate at Rice Reuther Sullivan & Carroll, Las Vegas, Nevada, United States of America. Tel. +1 702 697 6117 - Email msaladino@rrsc-law.com. Maria Veronica also teaches classes on Fundamentals of U.S. Law and Comparative Law at the Universit`a degli Studi di Cagliari, Italy. Sincere gratitude to Professor Stacy A. Tovino, William S. Boyd ...
• Pages: 469-489

The Enforcement of Punitive Damages Awards

Between United States and Europe:

An Introduction for U.S. Practitioners

M

ARIA

V

ERONICA

S

ALADINO

*

Preamble

Punitive damages, also known as exemplary damages, are sums “awarded

in addition to actual damages . . . to punish and thereby deter blameworthy

conduct.”

1

While compensatory damages redress the actual loss that a

claimant suffered by a defendant’s wrongful conduct, punitive damages

operate as “private fines” intended to punish and deter a defendant from

committing future civil wrongdoing.

2

Whether punitive damages are awarded is largely a function of public

policy. For instance, in common law systems, punitive damages fulfill a role

critically important for the non-criminal justice scheme: in a society in which

a jury of peers is the only finder of fact, punitive damages are an expression

of society’s moral condemnation.

3

In civil law systems, on the other hand,

the chief purpose for asserting a non-criminal action is to receive

compensation after a loss. Accordingly, for many civil law countries, the

idea of reprimand is unknown in the context of civil damages awards; only

criminal law—through its due process protections and disinterested

prosecutors—can “punish” an individual; the unavailability of punitive

damages is a matter of public policy.

4

In a globalized world, interconnected largely through international

transactions, disagreements about punitive damages can no longer be treated

merely as a product of history or culture. This difference impacts how (and

if) transactional disputes are resolved. When a defendant is foreign, or when

a defendant’s assets are abroad, U.S.-based attorneys must be aware of the

current European trends about the enforcement of United States punitive

damages awards when assessing civil litigation strategies. In preparing a

litigation plan, lawyers must remain mindful of their clients’ primary

* Associate at Rice Reuther Sullivan & Carroll, Las Vegas, Nevada, United States of

America. Tel. +1 702 697 6117 - Email msaladino@rrsc-law.com. Maria Veronica also teaches

classes on Fundamentals of U.S. Law and Comparative Law at the Universit`a degli Studi di

Cagliari, Italy. Sincere gratitude to Professor Stacy A. Tovino, William S. Boyd School of Law,

University of Nevada, Las Vegas, and Professor Aldo Berlinguer, Universit`a degli Studi di

Cagliari, Italy.

1. Damages, B

LACK

’

S

L

AW

D

ICTIONARY

(11th ed. 2019).

2. Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424, 432 (2001).

3. Id.

4. Cass., sez. tre, 19 gennaio 2007, n. 1183, Foro it. 2007, I, 3, 1460 (It.).

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

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470 THE INTERNATIONAL LAWYER [VOL. 52, NO. 3

interest: not to obtain a favorable judgment, which is nothing more than a

legal fiction, but to secure from that judgment an actual, tangible result that

can be obtained only through governmental enforcement mechanisms.

Absent the prospect of enforcement, a judgment with no execution is

nothing more than an expensive piece of paper.

This article’s objective is to introduce U.S.-based practitioners to

European civil-law perspectives on whether U.S. punitive damages awards

are enforceable in their jurisdictions. After a brief review concerning the

birth of punitive damages within common law, valuable to better understand

their cultural and legal significance, this article will outline how the

prominent European jurisdictions—France, Germany, Italy, Spain, and

Switzerland—have dealt with the enforcement of U.S. punitive damages

awards. Through each jurisdiction’s policy principles and relevant law, this

article aims to afford U.S.-based practitioners initial tips and litigation

strategies about how to maximize their chances of enforcing a U.S.-obtained

judgment in one of the analyzed foreign jurisdictions.

I. Brief History of Punitive Damages in the Common Law

Preliminarily, a brief review concerning the birth of punitive damages

within the context of tort law is valuable to better understanding both its

cultural and legal significance. During English medieval society, criminal

law and tort law were inextricably commingled; the legal system did not

distinguish between criminal and private actions. The victim of a wrong

would seek financial compensation from the wrongdoer in the court of law

as an alternative to retaliation and “blood feud.”

5

Such compensation,

known as “wers” or “bots,” was awarded to the victim while an additional

payment, known as “wite,” was awarded to the community at large.

6

The

belief was that every vile behavior caused damage not only to the victim, but

also to society as a whole.

Following the XIII century, English law referred to transgressions by one

individual against another as “trespass.”

7

In its early stages, the writ of

trespass was issued when the transgression was a breach of the Crown’s

peace—contra pacem nostram. The wrongdoer was ordered to pay a sum to

compensate the victim as well as a fine to the Crown for disturbing the

peace. Subsequently, around the XVI century, the English legal system

sought to separate tort and crime respectively into “trespass” and “felony.”

8

Even though a felony was still a “private” criminal action initiated by the

victim, the two remedies differentiated as to their underlying motives. If the

5. F

REDERIC

W. M

AITLAND

& F

REDERICK

P

OLLOCK

, T

HE

H

ISTORY OF

E

NGLISH

L

AW

BEFORE THE TIME OF

E

DWARD

I, at 499 (Cambridge Univ. Press, 2d ed. 1898).

6. Id. at 451.

7. See J

OHN

C.P. G

OLDBERG

& B

ENJAMIN

C. Z

IPURSKY

, T

HE

O

XFORD

I

NTRODUCTIONS TO

U.S. L

AW

: T

ORTS

9 – 10 (Dennis Patterson ed., 2010).

8. David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L.

R

EV

. 59, 82 – 86 (1996).

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW