Comment by Charlotte R. Markstein
Company A, a retail company headquartered in the United States, contracts with an agent, located in France (Agent), to distribute its products in Europe. Their agreement stipulates that the laws of New York will govern any dispute. The Agent contracts with several trucking companies to transport Company A’s products from its warehouse in France to various European retailers. During transport, a truck carrying the products is involved in a severe multi-vehicle accident in Germany. The accident results in property damage and personal injury to several German motorists. With the damaged products unsalable, Company A terminates the agency agreement and sues the Agent in U.S. federal district court for damages. The injured motorists sue both Company A and its Agent in Germany. The Agent sues Company A in France for termination payments under the European Union’s Council Directive 86/653/EEC (the Directive), which regulates protection of self-employed commercial agents. While Company A argues that New York law applies and protects it from liability to the Agent and third parties, the Agent argues that compensation is required under the Directive. Thus, the court must apply a conflict-of-laws analysis to determine whether the rights and obligations of the French Agent are based on U.S., French, or EU law, or a combination thereof.
Determining which rules a jurisdiction may use to decide which law governs a complex cross-border dispute often gives rise to a conflict of laws. The rising globalization of business transactions and mobility of people and products have exposed contracting parties to diverse systems of law and increased these conflicts. Furthermore, if a case or cause of action consists of multiple issues on which the involved U.S. or foreign laws conflict, some codifications and legal scholars suggest analyzing it issue by issue. As a result, courts must perform a separate choice-of-law analysis for each issue. If the court determines that the substantive laws of different jurisdictions will apply to the different issues, dépeçage ensues. A French word meaning dismemberment, dépeçage enables a more nuanced resolution of legal disputes by allowing courts to perform a separate choice-of-law analysis for each issue. In both the United States and the European Union, dépeçage occurs more frequently than is commonly assumed. Globally, dépeçage potentially occurs as often in codified as in uncodified choice-of-law systems. Comparing U.S. and EU treatment of dépeçage can inform how U.S. lawmakers clean up and unify the “mess” that represents the numerous doctrines U.S. courts use to solve choice-of-law issues.
This Comment examines the approaches different jurisdictions take in resolving a conflict of laws using dépeçage. Parts II and III review the United States’ and EU’s treatments of dépeçage and choice-of-law doctrine. While the European Union incorporates a Directive, which may override a contractual choice-of-law clause in an agency agreement, the United States has no such regulation. After comparing the disparate judicial approaches that the United States and European Union have adopted to resolve commercial agency disputes, Part IV argues that an issue-based approach would help distinguish the non-contractual and contractual issues to reach flexible, yet still predictable choice-of-law determinations. Part V proposes solutions supporting the use of dépeçage to provide parties with a more nuanced adjudication of their claims. Part VI briefly concludes.
About the Author
Charlotte R. Markstein. J.D. 2025, Tulane University Law School; B.A. 2020, Vassar College.
Citation
99 Tul. L. Rev. Online 59 (2025)