关于民间融资的外文翻译英文.docx

1、关于民间融资的外文翻译英文FINANCING CIVIL LITIGATION THE CASE FOR THE ASSIGNMENT AND SECURITIZATION OF LIABILITY CLAIMS Andrea Pinna Institut de droit des affaires internationales Abstract This paper examines the possibility of financing civil litigation by way of the assignment of a liability claim to an invest

2、or, which would “acquire” the claim and bring a claim in compensation on its own name and behalf. The starting point of the research is the observation that if, in theory, the right for compensation is considered to be a fundamental right, in practice, its implementation considerably lacks effective

3、ness especially in consideration of the financial barriers for accessing justice. The hypothetical examined is the situation in which an injured party of a tort or a breach of contract (the assignor) assigns to a third party (the assignee) its rights against a liable party in exchange of remuneratio

4、n. The main feature of the system is that the injured party receives compensation by way of payment of the price for the claim before a ruling on the liability and the measure of damages have been made. Therefore the assignee makes a risky bargain because he is not sure that the possible proceeds de

5、riving from the lawsuit will cover its investment. This is however prima facie a sound system since the assignee, before acquiring a claim and for the determination of the consideration, will carefully assess the chances to win the lawsuit and the damages that could be awarded by courts. Naturally,

6、the consideration for the assignment an investor is prepared to pay is lower than the amount of the anticipated proceeds of the lawsuit since its determination incorporates both the risk of losing the lawsuit and the difference in time between the payment of the price and the expected gain from inve

7、stment. This technique of financing civil litigation has not been used in practice so far, at least not on a large scale. This naturally raises two main questions. The first one is to determine whether the assignment of liability claims for speculation purposes is legally admissible or is contrary t

8、o public policy. European legal systems are divided on the issue, which is shown by a comparison between English and French law. Either de lege lata or de lege ferenda, the second issue is to determine whether the system is economically viable and desirable. The author takes position in favor of the

9、 assignment of liability claims especially as a solution to the absence of other techniques, such as mandatory damage insurance, compensation schemes or class actions, which already aim at finding an alternative to the traditional way of seeking compensation for an injured party, that is to individu

10、ally claim for it in court. One of the advantages of the assignment of liability claims over other techniques of receiving compensation is to technically enable to have recourse to financial markets by the securitization of such claims. This facilitates the raising of capital for financing civil lit

11、igation and allows the transfer of the risk related to liability claims at low transaction costs. Naturally, the inconveniences of this technique of financing civil litigation and of the securitization of claims should not be underestimated. 1. Introduction 1.1. The fundamental value of the right fo

12、r compensation and its implementation. The right for an injured party of a tortious or contractual wrongdoing to receive compensation was granted in Europe a fundamental value. The European Court of Human Rights has indeed decided that a credit for damages deriving from a wrongdoing, i.e. a liabilit

13、y credit or liability claim, is a good for the purpose of application of Protocol 1 of the European Convention of Human Rights. However, in practice, the implementation of this fundamental right is far from being satisfactory. Several types of losses do not receive compensation because of the practi

14、cal difficulties and the costs necessary to achieve it. The traditional way for an injured party to seek compensation is to bring a claim directly and individually in court. In the last decades, legal systems have developed alternative mechanisms to grant compensation without exposing the injured pa

15、rty to the burdens of a lawsuit: compensation schemes have been implemented with regard to particular types of losses, the insurer is sometimes obliged to offer the injured party a compensation without having been sued or even having been requested to do so. In other legal systems, the lawsuit has b

16、ecome an industry for lawyers who are entitled to exclusively finance the lawsuit and to be remunerated only in case of success on the proceeds of such action, even though this is not a common accepted rule for European legal systems. Nor it is the possibility for individuals to bring a claim also o

17、n behalf of a larger group of victims in a similar situation, the so-called class actions. Where these alternatives do not exist, which corresponds to the most common situation, the creditor of the compensation is always obliged to finance the lawsuit whereas the public mechanisms aiming at granting

18、 the access to justice are clearly insufficient and reserved either to specific lawsuits or to individuals in particular financial distress. 1.2. The considerations for deciding whether to bring a claim or not. As a consequence of this, the decision to bring a claim for compensation is taken in cons

19、ideration of other elements than the mere meritorious character of the claim. Indeed, the plaintiff, winning a lawsuit, can only in few legal systems, such as England, be awarded of a sum corresponding to the real costs spent for the litigation as additional damages. Whereas in many legal systems th

20、is is not considered to be a head of loss, in others, courts? practice has limited the compensation to a very low sum, incomparable with the effective price paid for having the plaint iff?s rights enforced. The observer therefore faces an unusual situation where the rights of the victims are nowaday

21、s particularly sophisticated, whereas the techniques for their protection have hardly evolved since several centuries. 1.3. The example of the compensation of the losses deriving from breach of competition law. The debate related to the recent initiative of the European Commission on Damages Actions

22、 for Breach of EC Antitrust Rules7 has shown this paradox and incoherence of European legal systems: extremely protective of the victims in theory the system is profoundly inefficient in practice. The recent conviction of the three French mobile phones operators for illegal undertaking to several mi

23、llions of public penalties8 has shown the impossibility for the consumers the direct victims of this illegal behavior to be granted compensation for the loss suffered. In the absence of a class action-like mechanism to aggregate thousands of small individual claims, almost no individual claims were

24、brought and consumer association could not provide a surrogate compensation mechanism since they cannot freely advertise to have consumer adhere to the claim they bring.9 Nowadays, public enforcement of competition law is the only effective proceeding available and private enforcement is extremely l

25、imited in practice. The example of the mechanisms for private enforcement of competition law shows more broadly that each citizen is owner of a portfolio of credits in damages that he cannot, in practice, take advantage of, in the expectation that the prescription plays its inexorable role. 1.4. The

26、 hypothesis of assigning damages claims. From this remark and in the actual absence of efficient alternatives, one could explore the idea of making a more useful employment of these credits in damages by simply selling them to someone who is willing and able to make a more efficient use of them. Ali

27、ke traditional credits of a liquidated sum of money, which can be freely assigned, are unliquidated claims susceptible of assignment?Prima facie, this technique presents several advantages. If such a damages claim could be of interest for an investor, the original owner of the liability claim the vi

28、ctim , by assigning it, will not have to personally finance the lawsuit nor to bear the risk of losing the legal action. Moreover, the assignor will receive compensation for its loss faster than in the traditional course of action, i.e. by individually claiming damages.10 Indeed, the price paid by t

29、he investor as consideration for the assignment would replace the compensation for the loss that would be judicially awarded. The price would be necessary lower than the amount of the damages, but it would be paid in exchange of the absence of any cost and risk for the judicial procedure and would b

30、e given to the victim by anticipation. This anticipation seems to be susceptible of inciting the injured parties to assign their damages claims and the investor to speculate on the chronological difference between the investment and the expected gain from this investment. Therefore, the intrinsic wo

31、rth of the assignment of liability claims appear to be real with comparison to the traditional mechanisms of compensation of a contractual or tortious loss. 1.5. The comparison with other techniques for seeking compensation. Three main techniques for seeking compensation of a loss are offered by leg

32、al systems. Traditionally, the victim always has the right to individually claim for compensation in court, seeking an award for damages. Alternatively, in some cases, private or public compensation schemes are established in order to grant compensation without requiring a liability claim to be brou

33、ght to court against the wrongdoer. Indeed, the main role of a compensation scheme is to grant compensation to an injured party even if no wrong was committed. However, practice has shown that compensation schemes also intervene when a wrongdoer can be identified and that after compensating the victim, the scheme is subrogated in the rights of the