Although the BIICL Report contends that the Brussels/Lugano Regime leaves "unregulated" the "crucial" question of "which legal system is to govern the preclusive effects of a judgment after it has been recognised," (301) it suggests that commentary on the Brussels Convention and European Court of Justice (ECJ) case law may provide some guidance.
310) "On the whole," the BIICL Report states, "the legal systems considered reflect the opinion that the recognition of judgments under the Brussels/Lugano Regime has the result of conferring on those judgments the claim preclusive effect accorded to them in the state where they were rendered in the first place.
While the BIICL Report finds that "a majority of legal systems has adopted the extension of effects approach," including Germany, the Netherlands, Spain, Sweden, and Switzerland, (314) not all of the participating European countries concur.
Thus, one must consider whether the BIICL Report sheds any light on the method by which courts in the participating European countries choose the preclusion law to govern foreign class action judgments.
The final section of the BIICL Report addresses the willingness of the participating European countries to recognize and give preclusive effect to "third state" judgments--that is, to the judgments of countries, like the United States, that are not Member States or contracting parties to the Brussels/Lugano Regime.
At least one country report prepared in connection with the BIICL Project explicitly addressed this issue, expressing uncertainty about whether American-style class action judgments would be denied recognition on public policy grounds.
The country reports prepared in connection with the BIICL project reveal a diversity of views among the participating European countries regarding which country's law should determine a third state judgment's binding effect.
Although the BIICL Project was undertaken to facilitate "the free movement of judgments in the [European Community]" (336) rather than to provide guidance to American courts facing difficult certification motions, the BIICL Report actually lends meaningful support to this Article's thesis.
Second, the BIICL Report reveals that about half of the participating European countries do not accord their judgments issue preclusive effect.
LAW, COMPARATIVE REPORT: THE EFFECT IN THE EUROPEAN COMMUNITY OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS: RECOGNITION, RES JUDICATA AND ABUSE OF PROCESS 5 (2008) [hereinafter BIICL REPORT], available at http://www.
LAW, THE EFFECT IN THE EUROPEAN COMMUNITY OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS: RECOGNITIONS, Res Judicata and Abuse of Process (2008) [hereinafter DESCRIPTION OF THE BIICL JUDGMENTS PROJECT], available at http://www.
The original plans for the BIICL Judgments Project contemplated a report to be prepared by a national rapporteur for Poland, but no reference to a Polish report was made in the BIICL Report.