In 2018 two protocols establishing the rules applicable to proceedings brought before the modernised International Chamber of the Paris Commercial Court and the new International Chamber of the Paris Court of Appeal (collectively the ICCP) were signed. Although the ICCP have rendered several decisions in 2019, there is still no sufficient hindsight to make a first assessment on the ICCP's functioning.
Two recent Supreme Court decisions regarding cross-border litigation have clarified that the French courts will have jurisdiction over forensic examinations ordered as protective measures by a French judge, although foreign judges will likely have jurisdiction over the substance of the matter. In light of these judgments, the French courts are likely to order forensic measures if they are closer to the facts of the dispute even if the matter will be settled by a foreign court.
In the framework of the world-famous case between the Republic of Congo and Commisimpex, the Supreme Court recently established a new rule to be followed in order to proceed to a seizure when an immunity from jurisdiction applies. The decision demonstrates the importance of applying the same rules of law in relation to immunity from jurisdiction or execution – to such an extent that the court justified the retroactive application of the Sapin II Law.
A recent Supreme Court decision confirms that the estoppel principle is recognised under French law as a general principle and is now a procedural tool in the hands of litigators. However, the decision also revives the debate about the principle's true effectiveness before the French courts.
Under French law, proceedings may be terminated on several procedural grounds. One of them is the abatement of a suit, which results in the termination of the proceedings without considering the merits of the case. In two decisions issued on December 16 2016, the Supreme Court specified the subtle conditions applicable to the enforcement of such a drastic procedural penalty.
As with many other national laws, French law recognises parties' right to gather evidence at the pre-trial stage by way of a discovery procedure (ie, judges will require opponents to disclose files and documents under certain circumstances). However, the confidentiality of targeted files and documents can be a major obstacle to the success of such claims. The Supreme Court recently held that confidentiality provided by US legal privilege is unlikely to frustrate a discovery action undertaken in France.
The Supreme Court recently answered the question of whether a party that is summoned by the Ministry of Economy before a French court over a competition law infringement is entitled to contend, by way of defence, that the court in question has no jurisdiction over the claim. The judgment provides a clear rule of law: competition claims between private parties remain freely arbitrated, but actions by the ministry cannot be submitted, in any case, to arbitration.
The commercial branch of the Supreme Court recently renewed its application of the res judicata principle when the situation acknowledged by the first-instance judge was modified by subsequent events. The court confirmed the first-instance decision despite opposition from the seller of a shop, who argued that the res judicata principle barred the admissibility of the purchaser's action grounded between the same parties on the same object and cause.
A party wanting to preserve or establish evidence of facts on which the solution of a dispute might depend can ask the judge before the trial commences to appoint a judicial expert to draft a report on the matter. If the other party is dissatisfied with the report's findings, it may want to seek nullification of the report. The conditions for nullification are strictly defined by case law and although the effects can be powerful, they can also be disappointing.
The quest for evidence in civil and commercial litigation is often a major strategic challenge, as the quality and strength of evidence provided by the parties may determine the outcome of the trial. When a party involved in French proceedings needs to collect information or documentation abroad which is crucial to the success of its claims, it can rely on two legal instruments, depending on where the evidence is situated.
The courts previously applied a rather lenient test to waivers of immunity from execution. While French law required waivers to be specific and unequivocal, the courts allowed immunity to be waived implicitly. However, recently in three simultaneous decisions involving interim measures in pursuit of a foreign court judgment's enforcement, the Supreme Court applied a stricter test to waivers of sovereign immunity from execution.
In the past, jurisprudence has been unclear as to whether misconduct by a party in performing a contract can trigger liability towards third parties. However, in 2006 the Court of Cassation brought a welcome end to such uncertainty by recognising the principle of identity of tort liability and contractual liability. The principle has since been applied by all civil chambers of the court in a diverse range of cases.
The Court of Cassation has rendered a decision on the enforcement of foreign decisions granting punitive damages. The decision will be of great interest to common law countries in which punitive damages can be awarded by the judge. In contrast, these principles of deterrence and punishment are absent from French liability law, according to which damages must fully but solely repair the harm caused.
The Supreme Court has held that a commercial agent must perform its obligations with loyalty towards the other party. In the case, which arose after the termination of contractual relations for telecommunications services, the court also held that the agent lost its right to compensation when it committed serious negligence, which was discovered only after the cessation of the contract.
The Paris Court of Appeal has recently held that a French citizen who brought a claim against a foreign company may not refer to the jurisdiction of the French courts under Article 14 of the Civil Code where the parties have agreed to submit any dispute to arbitration.
The Supreme Court recently ruled on the application of the EU Insolvency Regulation. It held that the French courts had to recognize main proceedings opened in the United Kingdom and were not entitled to review the grounds of the British judgment. The Supreme Court also limited the scope of the public policy exception under Article 26 of the regulation.
The Paris Court of Appeal has upheld a judgment ordering Google to stop using on its websites the trademarks LOUIS VUITTON, VUITTON and LV as keywords for advertising and promoting products. This decision is significant as regards issues of territorial jurisdiction and liability for torts based on trademark infringement and other violations through the use of keywords on websites.
Some commentators argue that a recent Supreme Court decision, in which it appears to have approved of the delivery of an anti-suit injunction à la française, provides a useful tool for international proceedings. However, others fear its consequences and point out that anti-suit injunctions can be subject to retaliations.
A Belgian distributor brought an action for damages against a French manufacturer, claiming that the latter had breached a contractual notice requirement in terminating the distribution contract. The Supreme Court ruled that since the products were supplied by the French company and Article 4(2) of the Rome Convention applied, the contract was governed by French law; but this decision may be incorrect.
A French appeal court has ruled that main insolvency proceedings against the French subsidiary of a UK company should not have been opened in France because the subsidiary's main centre of interests was in the United Kingdom, where such proceedings had already been opened. The ruling is the first application in France of the EU Regulation on Insolvency Proceedings.