🚧Systemic Litigation

Is emerging what appears to be its own category, deserving to be designated by a singular expression: ‘Systemic Litigation’ (I). This refers to all of what I have called ‘systemic cases’, singular disputes in which an entire system is involved, a phenomenon so powerful and decisive that it gives rise to a unified category. This litigation is emerging today for 3 reasons, distinct sources whose trace remains in the disputes (II). The challenge now is to conceptualise and construct a judicial treatment of this Systemic Litigation that has to be both specific and unified (III).

I. WHAT DEFINES SYSTEMIC LITIGATION

I proposed in 2021 the notion and expression of ‘Systemic Cases’📎!footnote-3780. This refers to all Cases, which are brought before a judge and in which a ‘System’ is involved.

It is not a simple method, namely the apprehension of a particular situation in order to reveal the system that structures it, since systemic analysis, which can be relevant and applied to almost all cases📎!footnote-3783,. The hypothesis is more restricted and stems from the fact that in the Case submitted to the Judge, a System is therefore factually present in this case brought to the judge's attention by the parties in dispute. The analysis that will have to be made of the case will therefore necessarily have to take into account the interest of the system involved: it may be the banking, financial, transport, telecommunications, audiovisual, digital, data, energy, health, algorithmic, climate, etc., system. Several systems may be involved in the same case, for example the banking system and the algorithmic system, the energy system and the climate system.

The diversity of systems is in any way an obstacle to the uniqueness of the category of Systemic Litigation and its unified procedural treatment. Indeed, whatever the system involved, its consideration is always and above all that of systemic risks and the system's primary interest is to endure over time, by preventing and managing these risks. Litigation before a judge must integrate this dimension beyond the dispute, unless we pretend that systems do not exist. 

Regulatory Authorities have certainly been created, in charge of systems across the sectors that correspond to them. Their sanction and dispute resolution bodies incorporate this concern for Sustainability into their solutions. In this respect, Systemic Litigation has many points of contact with the disputes to which regulatory systems give rise. As François Ancel has shown, systemic litigation is part of the extension that Compliance Law is building on Regulation Law📎!footnote-3782.

Thus Systemic Litigation is the procedural translation of the profound substantive shift that Compliance Law is bringing about by freeing Regulatory Law from its strict sectoral focus. This is increasingly presented as a legal revolution, because it goes beyond the distinction between public and private law, beyond the distinction between civil, commercial and repressive law, in a continuum between Ex-Ante and Ex-Post. 

The system itself is then present in the proceedings before the Judge, System with its own interests, which the judge must take into consideration. To do this, the procedure must place in the proceedings before him/her some processual characters who can explain these interests and ask for them to be taken into consideration, either because they have an interest themselves or because they are disinterested parties. Therefore regulators and the public prosecutor are natural parties in Systemic Litigation, regardless of the judge before whom it takes place, for example the civil judge.

II. THE REASONS FOR THE EMERGENCE OF SYSTEMIC LITIGATION

In the past, systems were developed in sectors, and the regulatory authorities in charge of the regulated systems, with their functionally autonomous sanction and dispute resolution bodies, found solutions that safeguarded the interests of the system. In particular, this explains their special status as parties to the proceedings when appeals are lodged. The same applies to the system of competitive markets, where the competition authorities are responsible for systemic litigation📎!footnote-3784. Their decisions have always been reviewed by both ordinary and specialised courts, for example in France the Paris Court of Appeal and the French Council of State (Conseil d'Etat).

Today, however, Systemic Litigation is emerging first and foremost because new systems have appeared that do not fit within the boundaries of a single sector. Even if regulators have a role to play in resolving these disputes📎!footnote-3786 , they cannot cover them all.

The digital system, the data system and the algorithmic system📎!footnote-3795 have thus emerged beyond the sectors, which do not fall within a sector and which each develop a similar concern for balance and sustainability, called into question in singular disputes.

A second source of Systemic Litigation is the appearance of new elements in old systems. This is the case for the energy system, where it is clear that we may no longer have access to it in the future, or for the climate system, where perturbation could lead to the disappearance of the human race from the face of the earth.

A third source of Systemic Litigation arises in the case of an old system that has not undergone any major objective change and is being looked at afresh. The source of emergence is more political. For example, the ambition is expressed that the situation of women will now and in the future be the same as that of men, or that the rights of people working in areas other than Europe will be the same as those of Europeans. 

These 3 sources may intermingle. For example, in Systemic Vigilance Litigation, it is a question of entrusting companies that have structured chains of activities using company and contracts legal mechanisms📎!footnote-3787, with the task of taking responsibility for climate concern, an objective obligation that, for example, Europe and China share, but also concern for human rights, for which these two legal systems do not develop the same conception. International law will therefore not play the same role in the Systemic Litigation that will develop beyond borders📎!footnote-3788. Nor is contract law going to play a role in the same way, particularly when international arbitration is going to be the unexpected field of systemic litigation of activity chains, integrating above all the sustainability of these chains📎!footnote-3789.

III. THE INSTITUTIONAL AND PROCEDURAL TREATMENT OF SYSTEMIC LITIGATION

This systemic litigation, which transcends sectors and is primarily concerned with the future📎!footnote-3790, is emerging before the ordinary courts, because the companies themselves have contractualised their Systemic Obligations. It is also because of the position of companies in systems that their liability is sought📎!footnote-3791 under the conditions of ordinary law📎!footnote-3792.

Systemic cases are few, as it is not often that a system is involved in a particular case. Moreover, the judge must first check that the plaintiff is eligible to call that defendant to account, which the Paris Court of Appeal did with care and rigour in the three judgments of 18 June 2024, TotalEnergies, Suez and EDF📎!footnote-3798. But once the jurisdictional space is open, the particular decision that is taken by the judge impacts the entire system. This is also why, in Systemic Litigation, even if the high courts retain all their importance, it is the front-line judges, first judicial courts and commercial courts in particular📎!footnote-3793, to whom attention is turned because the system is a fact: practical solutions often come from these judges.

Furthermore, because the operating rules of systems are often sort of ‘laws’ of nature, of physics, finance, accounting, biology, economy, etc., the dialogue must take place between judges of fact and judges of law, because systems fit poorly into this distinction between fact and law, just as the distinction between public law and private law suits them little, since systems constitute durable structures held by crucial enterprises, regardless of whether they are public or private📎!footnote-3794. The role of experts in adversarial debate must be increased.

This is seen as a source of ‘complexity’. It can also be seen as a kind of simplicity, because it is in the system's interest to endure. This new simplicity is also a source of disarray in that the pillars of our traditional legal knowledge, such as the tightness of legal systems or the public/private distinction, can scarcely be relied upon and are relegated to the background.

The French courts in particular have shown boldness and reason. In January 2024, the First President of the Paris Court of Appeal explained the creation of a new chamber specialised in vigilance litigation. The first instance Court of Paris has set up a specialised division to hear vigilance cases and cases with a systemic dimension. Other courts may follow this institutional initiative. Training courses are being set up to understand the emergence of  Systemic Litigation and its implications📎!footnote-3797.

The required procedural adjustments must not only encourage this dialogue between the required judges, in particular through preliminary questions and requests for opinions, or even through simple practices or protocols. The innovation may come from the distinction between the parties to the dispute and the parties to the proceedings: while the parties to the dispute may choose to continue to confront each other, the proceedings must be as open as possible to those who have something to say. It is then up to the public authorities, experts and civil society to enlighten the judge.

The judge, as master of the proceedings, must himself/herself find solutions that are appropriate for the parties and for the system involved. He/she must also, in particular through a procedure that has educated him/her, be able in turn to enlighten those who, involved in the system, need to anticipate its evolution.

Once again, dialogue is the best way to achieve this. The adversarial principle is more than ever the major principle📎!footnote-3796. Proceedings will benefit from being adversarial, public, and methods of debate, such as cross-examination, are welcome. The judge must direct the proceedings, for example by inviting experts to enlighten him/her, and by directing the debates, by inviting the parties to enter into a dialogue themselves, mediation being able to be promoted in this way.

Systemic Litigation experiment has begun.

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