Litigation

Last verified on Thursday 10th June 2021

Litigation: France

Julie Spinelli and Anne-Claire Hans

Le 16 Law AARPI

Overview

1. Describe the general organisation of the court system for civil litigation.

France

French civil litigation is organised as a three-tiered system: first instance, appeal and cassation.

At the first instance level, judicial courts have jurisdiction to rule upon all civil litigation cases, except when the law expressly confers jurisdiction to other courts as a result of the nature of the dispute. Commercial courts are also first instance courts that have jurisdiction over commercial disputes and bankruptcy matters.

Appeals are generally lodged before a court of appeal within the territorial jurisdiction of the lower court.

The highest court is the Cour de cassation. It reviews lower courts’ rulings for legal and procedural errors without reviewing the factual merits of a case.

Judges sitting in civil courts are professional while lay judges sit in commercial courts.

Because France is a civil-law country, case law is not formally binding, although, in practice, lower courts will tend to follow previous decisions issued by upper courts ruling upon similar issues.

Answer contributed by Julie Spinelli and Anne-Claire Hans

2. Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.

France

In France, civil litigation is notably governed by the following basic procedural principles:

  • proceedings are adversarial,
  • proceedings are public, save for some limited exceptions,
  • each party bears the burden of proof for its claims, and
  • judges rule in law, not equity.

Answer contributed by Julie Spinelli and Anne-Claire Hans

3. Describe the general organisation of the legal profession.

France

To qualify as a lawyer in France, one must study law at university for a minimum of four years and pass a first exam to enter bar school and a second exam at the end of the 18-month training with said bar school.

France does not distinguish between barristers and solicitors. While every French lawyer is admitted to appear before all first instance and appellate courts, special counsel are the only ones entitled to appear before the Cour de cassation. Admission as such “special” attorney is based on a specific exam.

EU lawyers fully qualified in their own jurisdiction are allowed to practice in France under Directive 98/5/EC. After three years of regular practice in France, they can apply as a lawyer and register to the bar.

Qualified non-European lawyers willing to practise in France are required to take an exam to assess their knowledge of French law, including professional ethical rules.

Answer contributed by Julie Spinelli and Anne-Claire Hans

4. Give a brief overview of the political and social background as it relates to civil litigation.

France

In France, the right of individuals and legal entities to effective judicial protection in the exercise of their rights has been established as a constitutional principle. Since justice is free, France has a general tradition of civil litigation.

Overall, despite a moderately high case load, French courts issue decisions within a reasonable time. This is in particular due to France’s accession to the European Convention on Human Rights which has imposed on all contracting states an obligation to reduce the length of the proceedings to comply with article 6§1 of said Convention.

Over the recent years, the French government has been willing to reduce courts’ caseload and the length of the proceedings. To that end, a recent reform implemented important changes to the procedure, including effective case management techniques to reduce the length of the proceedings.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Jurisdiction

5. What are the sources of law and rules governing international jurisdiction in civil matters?

France

The criteria for determining jurisdiction are twofold: a territorial criterion (ratione loci) and a ratione materiae criterion according to the nature of the dispute.

As to territorial jurisdiction, as a general rule, French courts will uphold jurisdiction over a dispute – ie, other than for a mere application for interim relief – if the domicile or the registered office of the defendant, or one of the defendants where multiple defendants are involved, is in France (articles 42 and 43 of the CCP and articles 4 and 8-1 of the recast Brussels I Regulation (No. 1215/2012) (Recast Brussels I)).

Furthermore, French courts could uphold jurisdiction over a dispute where (i) performance of the contract takes place in France (article 46 of the CCP and article 7(1) of Recast Brussels I); (ii) the harmful event of a tort occurred in France (article 46 of the CCP and article 7(2) of Recast Brussels I).

Parties may depart from these rules by inserting a jurisdiction clause in their agreement (article 48 of the CCP, article 25 of Recast Brussels I), in which case the court designated by the clause shall have exclusive jurisdiction, except if it is null and void under the law of the designated state. Under French law, jurisdiction clauses are valid only if they were entered into between merchants or commercial entities (article 48 of the CCP).

French courts may further uphold jurisdiction on the basis of exclusive heads of jurisdiction, such as matters relating to real estate located in France and IP rights registered in France.

In exceptional circumstances, French courts may also uphold jurisdiction if (i) a party is French, under strict conditions (articles 14 and 15 of the Civil Code), and (ii) there is a proven risk of denial of justice and there exists a connecting factor with France.

Answer contributed by Julie Spinelli and Anne-Claire Hans

6. What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?

France

As regards material jurisdiction, the Judicial Court is the default court of first instance, unless a law expressly provides that specific disputes are attributed to another court (eg, the Commercial Court has jurisdiction over disputes between merchants or commercial entities and bankruptcy issues).

As regards territorial jurisdiction, each court is assigned a specific territory. In principle, the competent jurisdiction is that of the defendant’s domicile or registered office (article 42 of the CCP). The parties to a contract may agree upon a specific forum.

An option may exist for certain disputes where other courts also have jurisdiction (article 46 of the CCP) such as:

  • contractual disputes: the court of the place of delivery of the goods or performance of the services; and
  • tort claim: the court of the place where the damage occurred or where the damage was sustained.

For certain types of disputes, some courts have exclusive territorial jurisdiction, such as, eg, in real estate disputes.

Answer contributed by Julie Spinelli and Anne-Claire Hans

7. Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?

France

French courts are viewed as being increasingly quick, transparent and skilled, while maintaining costs to a minimum level. Consequently, French courts are often designated by international parties.

Moreover, the new International Chamber of the Paris Court of Appeal has bolstered Paris’ attractiveness as a forum for cross-border disputes as it adjudicates disputes that are governed by foreign law and allows the use of English in the courtroom.

Answer contributed by Julie Spinelli and Anne-Claire Hans

8. How will a court treat a request to hear a dispute that is already pending before another forum?

France

French law makes a distinction between pendency as a result of lis pendens and connexity.

Lis pendens: first, when a dispute is already pending before another French court of equal authority and equally competent to rule upon the matter, the court last seised must decline jurisdiction in favour of the other one, upon a party’s request (article 100 of the CCP) or sua sponte.

Second, when a dispute is pending before a court of another EU member state, the French court must stay any proceedings until the first seised court decides upon its own jurisdiction (article 29 of Recast Brussels I), unless the French court has been seised on the basis of an exclusive jurisdiction clause (article 31.2 of Recast Brussels I). Where the jurisdiction of the first seised court is established, the French court shall decline jurisdiction.

Third, when a dispute is pending before a court located outside the EU, the French court may either (i) stay the proceedings or (ii) decide to continue the proceedings, depending on specific circumstances.

Connexity: a court facing a case that is related to another case that is pending before another French court may decide to stay proceedings if one of the parties makes such request (article 101 of the CCP).

Similarly, if a related action is pending in the court of another EU member state, the French court may stay its proceedings or decline jurisdiction if the action before the first seised court is pending at first instance, and if said court has jurisdiction over the two actions and its law permits the consolidation thereof (article 30 of Recast Brussels I).

In addition, if a related action is pending in the court of a third country, and if the French court’s jurisdiction is based on articles 4, 7, 8 or 9 of Recast Brussels I, the latter may stay or decide to continue the proceedings under specific conditions.

Answer contributed by Julie Spinelli and Anne-Claire Hans

9. How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

France

France is one of the most arbitration-friendly jurisdictions and has implemented a legal framework favourable to arbitration. Consequently, French courts are extremely deferential to arbitration and rarely interfere with the arbitral process.

When a dispute subject to an arbitration agreement is brought before French courts, the latter typically decline jurisdiction, unless the arbitration agreement is manifestly void or manifestly inapplicable – which is rare in practice.

Parties are entitled to file requests for interim or conservatory measures before French courts only prior to the constitution of the arbitral tribunal and in the event of urgency. Once the arbitral tribunal has been constituted, interim measures may only be sought from the arbitral tribunal, except conservatory attachments or judicial securities, which may only be sought from domestic courts.

Answer contributed by Julie Spinelli and Anne-Claire Hans

10. May courts in your country review arbitral awards on jurisdiction?

France

In France, arbitral awards can be annulled or set aside only on statutorily limited grounds, and in particular when the arbitral tribunal wrongly upheld or declined jurisdiction.

When ruling on an arbitral tribunal’s jurisdiction, French courts conduct a de novo review of the issue but until a recent decision of the Cour de cassation, parties were barred from invoking grounds that they were aware of and deliberately refrained from invoking during the course of the arbitration proceedings.

Answer contributed by Julie Spinelli and Anne-Claire Hans

11. Are anti-suit injunctions available?

France

There is no tradition of and no specific provisions relating to anti-suit injunctions in France.

Furthermore, the ECJ held that anti-suit injunctions in the context of litigation are inadmissible when aiming at restraining proceedings before the court of another EU member state because it would be in contradiction with any state’s jurisdictional sovereignty, and inconsistent with the general principle of mutual trust that should prevail between EU member states’ courts.

French courts were long hostile to anti-suit injunctions. In 2004, the Cour de cassation ruled that an anti-suit injunction issued by an EU member state would violate public policy since it would affect France’s jurisdictional sovereignty. However, in 2009, the Cour de cassation adjusted its position and held in a context where no treaty or EU regulation applied that anti-suit injunctions do not violate French public policy where they are designed to sanction an existing contractual obligation such as a jurisdiction clause.

Answer contributed by Julie Spinelli and Anne-Claire Hans

12. Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

France

In France, state immunities from jurisdiction and from enforcement must be distinguished.

State jurisdictional immunity: French courts consider that foreign states enjoy jurisdictional immunity when the conduct that gives rise to the dispute is tantamount to a sovereign act (acta jure imperii) and hence does not constitute a private or commercial act (acta jure gestionis). In this respect, any entity may be covered by state jurisdictional immunity provided that it is acting on behalf of a state when carrying out a disputed conduct or transaction falling within the scope of immunity.

Sovereign immunity from enforcement: one must seek leave from French enforcement courts before performing any conservatory or final enforcement measures over assets owned by sovereign states. Such leave may only be granted if (i) the state has waived its sovereign immunity by expressly consenting to enforcement or earmarking specific assets for the satisfaction of its debts; or (ii) the assets at stake are not specifically used or intended for use by the state for non-commercial public utility purposes and have a connection with the entity against which the legal proceedings that gave rise to the debt were directed.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Procedure

13. How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?

France

Proceedings usually commence with the claimant instructing a bailiff to serve a writ of summons on the defendant to appear before a designated court, and the subsequent filing of the official copy of said writ with the relevant court.

Case management depends on the relevant courts. As a general matter, the swift conduct of the proceedings will depend upon the parties’ own procedural conduct. However, French judges are encouraged to actively manage cases, for instance, by bifurcating procedural or admissibility objections likely to put an end to the dispute and monitoring the progress of the case (setting out a procedural agenda, etc).

Answer contributed by Julie Spinelli and Anne-Claire Hans

14. What are the requirements for filing a claim? What is the pleading standard?

France

The statement of claim must include legal information about the parties, a detailed presentation of relevant facts, legal arguments which the claimant intends to rely on, supporting evidence, and the relief sought.

Answer contributed by Julie Spinelli and Anne-Claire Hans

15. What are the requirements for answering claims? What is the pleading standard?

France

The statement of defence includes legal information about the parties, a detailed presentation of the relevant factual and legal allegations on which the defendant intends to rely, as well as a list of the supporting evidence.

The defendant can raise any legal grounds that he or she wishes to rely on to invalidate or refute the claim (eg, procedural defences, inadmissibility pleas or defences on the merits) and may also bring any counterclaim in connection with the main claim.

Answer contributed by Julie Spinelli and Anne-Claire Hans

16. What are the rules regarding further briefs and submissions?

France

Claims and submissions may be amended until the final hearing for oral pleadings in the case of oral procedure (eg, before commercial courts) and until the closing of the written phase in the case of a written procedure (eg, before civil and appeal courts). Parties shall present all facts and evidence as early as possible, failing which their claims could be deemed inadmissible.

In practice, courts tend to rely solely on the parties’ final written submissions summarising each of their factual and legal arguments.

Answer contributed by Julie Spinelli and Anne-Claire Hans

17. To what degree are civil proceedings made public?

France

Civil proceedings and hearings are generally public except in limited circumstances when, for example, the nature of the dispute requires the utmost discretion (eg, disputes involving national security, sensitive IP-related and trade secret issues). In these types of cases, the hearing may be held in camera and sensitive parts of the decision may be redacted.

While most judgments are publicly accessible online, parties’ submissions and documentary evidence are in theory public but in practice not easily (or at all) accessible.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Pretrial settlement and ADR

18. Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?

France

French courts do not typically render interim assessments about factual or legal issues.

Settlements are highly encouraged in order to alleviate court congestion. Judges are entitled to order the parties to meet with a mediator or a conciliator at any stage of the proceedings, if the parties consent to it or if such measure is mandatory statutorily (for small claims, for instance) or contractually.

Answer contributed by Julie Spinelli and Anne-Claire Hans

19. Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?

France

French law encourages parties to settle their dispute. Some courts will require that parties attend a conciliation settlement at the outset of the proceedings.

When parties are statutorily required to try to resolve amicably their dispute or to resort to an ADR mechanism, the parties must specify which steps they have taken to reach such an amicable resolution before referring a matter to a court, failing which the claim might be deemed inadmissible.

The parties can insert in their agreements contractual clauses requiring them to initiate an ADR procedure before going to court. Depending on their wording, these clauses are binding upon the parties and a party seeking to refer a matter to court without having first resorted to the contractually agreed ADR mechanism incurs the risk of seeing its claim declared inadmissible.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Interim relief

20. What are the forms of emergency or interim relief?

France

Three types of interim relief may be granted.

Provisional measures may be sought through summary proceedings before the President of the judicial court or of the commercial court and usually take the form of injunctive relief that are provisionally enforceable.

Conservatory measures may be ordered by a judge when there is a legitimate reason to preserve or establish, before any trial, the evidence of facts on which the settlement of a dispute might depend (such as expert appointment and seizure of documents).

Asset-preserving measures entitle creditors to freeze their debtor’s assets to preserve the status quo pending proceedings on the merits.

Answer contributed by Julie Spinelli and Anne-Claire Hans

21. What must a petitioner show to obtain interim relief?

France

A provisional measure may generally be obtained (i) upon the demonstration of urgency, and if there are no serious grounds to challenge the claim; or (ii) in order to prevent the occurrence of an imminent harm or to put an end to a manifestly unlawful disorder. In addition, in cases where the existence of the obligation is not seriously disputed, the judge may award an interim payment to the claimant, or order that the obligation be performed.

To obtain a conservatory measure, the claimant must show that there is a legitimate need to preserve or establish evidence that is likely to impact the court’s decision and the measure needs to be sought before any trial.

Finally, asset-preserving measures may be obtained if (i) a claim is well founded in principle and not seriously questionable, and (ii) there is a serious possibility that it will no longer be possible for the creditor to recover such assets once the decision is rendered.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Decisions

22. What types of decisions (other than interim relief) may a court render in civil matters?

France

In civil matters, all claims are usually adjudicated within one final decision on the merits, unless the court has bifurcated the proceedings as a result of a procedural or inadmissibility plea.

In terms of relief, a court may generally order damages or specific performance. There are no punitive damages under French law.

Provisional enforcement of judgments has now become the rule rather than the exception.

Answer contributed by Julie Spinelli and Anne-Claire Hans

23. At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?

France

As a general rule, French courts render their final decisions once the parties are ready to plead their case.

In specific circumstances, judges may however render decisions at an earlier stage of the proceedings where a party has filed an application at the outset of the proceedings, the effect of which will be dispositive of the case, e.g. procedural pleas that should be raised in limine litis such as jurisdictional objections, pleas of lis pendens, or inadmissibility pleas, such as statute of limitation or lack of standing.

Answer contributed by Julie Spinelli and Anne-Claire Hans

24. Under which circumstances will a default judgment be rendered?

France

A claimant may obtain default judgment where the defendant has failed to participate in the proceedings and/or to appear before the court. In that case, the court will decide upon the case relying only on the submissions and material evidence provided by the claimant.

Answer contributed by Julie Spinelli and Anne-Claire Hans

25. How long does it typically take a court of first instance to render a decision?

France

In most commercial and civil cases, the average duration of first instance proceedings is approximately 12/18 months – depending on the specificities of the case.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Parties

26. How can third parties become involved in proceedings?

France

A third party may join ongoing proceedings before first instance or appeal courts either voluntarily or via a forced intervention application.

Voluntary intervention consists in a third party joining the proceedings if it has a legal interest to do so, either in the form of a main intervention (where the third party raises its own claim) or in the form of an accessory intervention (the third party gets involved in the proceedings merely to support the claim raised by another party).

Forced intervention consists of the third party being forced to join the proceedings by another party to the proceedings when such party considers that the third party should be present and bound by the decision to be issued.

French law provides for an extraordinary legal recourse whereby third parties may challenge a judgment to which they were not privy to by way of a third-party opposition in order to avoid the harmful consequences that this judgment could cause to their own interests. If the third-party opposition succeeds, the judgment becomes unenforceable against said third party.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Fact-Finding and Evidence

27. Describe the rules of fact-finding in your jurisdiction.

France

Each party bears the burden of proving the facts it alleges and French courts rely on the parties to present the evidence in support of their claims. Proof may, in principle, be brought by any means but French law gives more weight to written documentary evidence.

Parties must respect the principle of loyalty in evidence gathering (eg, it must not violate professional secrecy, nor be the result of fraud, violence or theft) and may not produce self-serving evidence that they have themselves created. Illegally obtained evidence may be set aside by the court.

There is no specific document disclosure procedure, although courts may order parties to disclose certain documents at the request of the other party upon restrictive conditions, including request obtained ex parte, before the commencement of any proceedings on the merits.

Answer contributed by Julie Spinelli and Anne-Claire Hans

28. Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?

France

French courts rely on the parties to present the evidence in support of their respective cases. Parties must spontaneously produce all the documents they deem appropriate to support their arguments and produce all the documents referred to in their written submissions.

Answer contributed by Julie Spinelli and Anne-Claire Hans

29. Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?

France

French law has no tradition of disclosure or discovery. As a matter of principle, parties are under no obligation to produce documents unfavourable to their case, apart from occasional exceptions, eg:

  • a court can order a party to produce a document at the request of the opposing party – under restrictive conditions that prevent any kind of fishing expeditions (article 142 of the CCP); and
  • it is possible – and ever increasingly used – for a party to request, before the commencement of proceedings on the merits, on an ex parte basis, or through summary proceedings, any investigative measures (eg, seizure of documents or expert determination) provided that there is a legitimate reason to preserve or establish the evidence that is relevant and material to the outcome of the dispute (article 145 of the CCP).

Answer contributed by Julie Spinelli and Anne-Claire Hans

30. Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

France

Although the CCP allows witness testimony, parties usually argue their cases on the basis of written documentary evidence and scarcely resort to witness evidence because, traditionally, French courts attach more value to written evidence than witness evidence.

As a result of the above, witness preparation is uncommon in France except in international arbitration where it is expressly allowed by ethical rules.

Answer contributed by Julie Spinelli and Anne-Claire Hans

31. Who appoints expert witnesses? What is the role of experts?

France

Under French law, experts can be appointed by a court upon a party’s application or at the judge’s own initiative. The Court’s decision details the expert’s mission and schedules a deadline by which the expert is due to file his or her final report. Once the expert is appointed, the case is generally stayed until the expert submits his or her final report.

The expert’s report is meant to provide independent and neutral advice to the court.

Party-appointed experts may also submit written reports in support of one party’s claims but such party-appointed expert’s opinions have less probative value than the opinion of a tribunal-appointed expert.

Answer contributed by Julie Spinelli and Anne-Claire Hans

32. Can parties to proceedings (or a partys directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a partys failure to testify or act as a witness?

France

Under French law, testimonial evidence is envisaged for third parties only.

The court can nevertheless decide to hear the parties themselves through a mechanism of “personal appearance” (articles 184 et seq of the CCP) but such instrument is rarely used in civil and commercial matters in practice.

Answer contributed by Julie Spinelli and Anne-Claire Hans

33. How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?

France

As a matter of principle, any exhibits submitted before a French court must be translated into French.

Should a French court be required to apply foreign law, the parties have to educate the French judge about the foreign law through legal expert opinion.

The recently created International Chamber of the Paris Court of Appeal is capable of handling matters in English and may allow the production of exhibits and the presentation of oral submissions in English as well as cross-examination of witnesses and experts.

Answer contributed by Julie Spinelli and Anne-Claire Hans

34. What standard of proof applies in civil litigation? Are there different standards for different issues?

France

French law does not specify what is the standard of proof which should be applied by judges in civil and commercial cases.

Judges therefore enjoy a very large discretion to determine what level of evidence is needed to determine whether a party has proved its case or not; and they rarely mention the standard of proof used to make such determination.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Appeals

35. What are the possibilities to appeal a judicial decision? How many levels of appeal are there?

France

As a matter of principle, most decisions may be appealed. All decisions rendered by appeal courts can then be challenged before the Cour de cassation.

Answer contributed by Julie Spinelli and Anne-Claire Hans

36. What aspects of a lower court's decisions will an appeals court review and by what standards?

France

French appeal courts review all the factual and legal aspects of first instance decisions.

The Cour de cassation only reviews issues of law, which includes procedural law, i.e. it can only determine whether the rules of law have been correctly applied by lower courts.

Answer contributed by Julie Spinelli and Anne-Claire Hans

37. How long does it usually take to obtain an appellate decision?

France

It usually takes about 12 to 24 months to obtain an appellate decision. The same applies to appeals lodged before the Cour de cassation.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Special proceedings

38. Are class actions available?

France

French class actions were introduced in France in 2014 and initially applied to consumer and competition-law disputes. Their scope was progressively extended to several matters, including health and product liability, environmental liability, personal data protection and discrimination.

French class actions may only be initiated by associations that have been duly registered and declared for a minimum of five years and whose statutory purpose is the defense of a specific interest, the violation of which has given rise to said class action. 

They are conducted on an opt-in basis. The procedure involves (1) “a liability judgment” phase whereby the judge establishes the defendant’s liability and defines the scope of the action; and (2) a compensation phase whereby victims join the action and submit their claims for compensation.

Answer contributed by Julie Spinelli and Anne-Claire Hans

39. Are derivative actions available?

France

Derivative actions are available but rarely implemented in France. Under article L. 225-252 of the French Commercial Code, shareholders are allowed to seek remedies on behalf of the company against the directors or the executive manager of the company for the losses suffered by the company itself because of their mismanagement.

Answer contributed by Julie Spinelli and Anne-Claire Hans

40. Are fast-track proceedings available?

France

French law provides for fast-track procedures for urgent cases. In such cases, a claimant can petition, usually on ex parte basis, the civil first instance courts or the appeal court, as the case may be, to be authorised to initiate expedited proceedings.

Answer contributed by Julie Spinelli and Anne-Claire Hans

41. Is it possible to conduct proceedings in a foreign language?

France

Proceedings before French courts are conducted in French. However, the recently created International Chamber of the Paris Court of Appeal allow the parties to conduct proceedings in English.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Role of Domestic Courts In Arbitration Matters

42. In which conditions does your domestic arbitration law apply? Does it apply equally to purely domestic and international arbitrations, and to commercial and investor-state arbitrations?

France

French arbitration law will apply to domestic arbitrations and international arbitrations seated in France and to foreign awards, the recognition and enforcement of which is sought in France.

The applicable procedural rules vary depending on whether the arbitration proceedings are domestic or international.

French arbitration law will also apply to non-ICSID investor-state arbitrations (eg, ad hoc, ICSID AF or UNCITRAL arbitrations) that are seated in France, unless the parties have provided otherwise.

Answer contributed by Julie Spinelli and Anne-Claire Hans

43. Give an overview of instances in which state courts come into play in domestic and international arbitration proceedings.

France

French courts (juge d’appui) are empowered to take measures in aid of arbitration proceedings (eg, assisting the parties in the constitution of the arbitral tribunal, hearing challenges brought against the arbitrators).

The juge d’appui may be seised where:

  • the seat is in France;
  • the arbitral proceedings are governed by French law;
  • the parties have agreed to grant exclusive jurisdiction to French courts to rule on disputes regarding the arbitration; or
  • one of the parties risks denial of justice.

Moreover, parties may seek a broad range of interim relief prior to the constitution of the arbitral tribunal before state courts. Once the arbitral tribunal is constituted, only conservatory attachments or judicial security measures may be sought from domestic courts.

Answer contributed by Julie Spinelli and Anne-Claire Hans

44. Describe the rules governing recognition and enforcement of arbitral awards in your jurisdiction. To what extent do domestic courts review arbitral awards on the substance?

France

Recognition or enforcement of awards is sought on an ex parte basis by applying for a judicial exequatur order. Recognition and enforcement may be refused only if the award is manifestly contrary to French international public policy.

The order granting leave to enforce a domestic award cannot be challenged, except if an appeal (if applicable) or an action to set aside the award has been lodged.

Regarding international awards rendered in France, the order refusing exequatur must be substantiated and can be challenged before the court of appeal within one month after its notification. The order granting leave to enforce cannot be challenged except if an action to set aside is lodged.

Regarding foreign awards, the order granting or refusing exequatur can be appealed within one month of its notification.

Regarding international awards, the debtor may ask that the award be set aside (for awards rendered in France) or denied recognition (for foreign awards) on one of the five grounds exhaustively listed under article 1520 of the CCP.

Annulment of a foreign award at the seat of arbitration is not listed among the five grounds for annulment of an award in France, and French courts authorise the recognition and enforcement of foreign awards that have been set aside abroad, on the basis of the principle of autonomy of international awards.

When ruling on recognition or enforcement of the award, courts may not review the merits of the case and any révision au fond is prohibited.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Effects of judgment and enforcement

45. What legal effects does a judgment have?

France

A judgment is generally binding upon the parties only. This principle has very few exceptions, in very specific circumstances.

A judgement has res judicata effect the moment it becomes final. Under res judicata, parties are barred from litigating the same dispute again, subject to a triple identity test (identity of claims, legal grounds and parties). French courts tend to consider that res judicata is limited to the operative part of a judgment.

Answer contributed by Julie Spinelli and Anne-Claire Hans

46. What are the procedures and options for enforcing a domestic judgment?

France

When the judgment is enforceable, it must be notified to the unsuccessful party by a bailiff.

Upon notification of the judgment, various enforcement procedures are available, including seizures of goods.

When the enforcement of a judgment raises issues to one or both parties, a special judge in charge of enforcement measures has jurisdiction to rule over said enforcement issues.

Answer contributed by Julie Spinelli and Anne-Claire Hans

47. Under what circumstances will a foreign judgment be enforced in your jurisdiction?

France

Judgments rendered by a EU member state court are directly enforceable in France pursuant to article 39 of Recast Brussels I. Recognition and enforcement may be refused only on limited grounds, such as manifest contradiction to French public policy, and irreconcilability of said judgment with an earlier judgment (articles 45 and 46 of Recast Brussels I).

The conditions for enforcement of foreign judgments rendered by a non-EU state court are either set out in a multilateral or a bilateral enforcement treaty or, in the absence of such treaty, in article 509 of the CCP, which provides that (adversarial) proceedings must be initiated before civil courts to seek a declaration of enforceability (exequatur). French courts will then assess whether the three following conditions are met: (i) the foreign court must have had jurisdiction to issue the judgment; (ii) the judgment must not have been obtained by fraud; and (iii) the requested enforcement of the judgment does not violate French international public policy.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Costs and Funding

48. Will the successful partys costs be borne by the opponent?

France

As a matter of principle, the unsuccessful party will bear all the proceedings expenses (such as court fees, bailiff’s fees, expert and translation fees: article 696 of the CCP).

Other expenses – such as legal costs – can also be reimbursed by the losing party pursuant to article 700 of the CCP, even though in practice, judges rarely accept to order the latter to cover them all but rather order the losing party to pay a smaller nominal sum.

Answer contributed by Julie Spinelli and Anne-Claire Hans

49. May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?

France

French law provides for a mechanism of state legal assistance which may be granted to natural persons demonstrating a low level of resources, insufficient to cover their legal costs.

Alternatively, third-party funding may be sought.

Answer contributed by Julie Spinelli and Anne-Claire Hans

50. Are contingency fee arrangements permissible? Are they commonly used?

France

Contingency and success fee arrangements are common and permissible, as long as they are combined with another form of lawyer’s remuneration paid to lawyers by their clients.

Answer contributed by Julie Spinelli and Anne-Claire Hans

51. Is third-party funding allowed in your jurisdiction?

France

Third-party funding is available in France but not very common to date in the context of litigation cases.

Answer contributed by Julie Spinelli and Anne-Claire Hans

52. Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?

France

Lawyers are not required to follow any fee scales and therefore are free to determine and negotiate their fees as they see fit.

Answer contributed by Julie Spinelli and Anne-Claire Hans

Get unlimited access to all Global Arbitration Review content