Civil procedure

From world-renowned manufacturers of sophisticated machinery to modest businesses hiring a contractor to install air conditioning in their premises, any company may one day face a dispute involving complex technical issues requiring court-ordered expert investigations.

Such preparatory inquiries are, in fact, almost unavoidable in this type of litigation.

Companies must therefore understand how court-ordered expert investigations work to ensure they are conducted in a manner that respects their procedural rights.

Pursuant to Article 35 of the Brussels I recast Regulation, the local judge may order provisional or protective measures, even though another judge has been given – or has accepted – jurisdiction to rule on the merits of the case, in particular under the terms of a jurisdiction clause.

In a decision handed down on January 27, 2021, the Court de Cassation (French Supreme Court) ruled on the French judge’s power to order preparatory inquiries in futurum (literally for the future) and aligned its position with the autonomous notion of “provisional, including protective, measures” provided for by European Law.

In a decision dated September 16, 2020, the Cour de Cassation (French Supreme Court) ruled on the conformity of California law with French international procedural public policy. By the combined application of several California procedural rules, a French defendant had been deprived of a remedy. The Cour de Cassation, asked to rule in the context of the procedure for the recognition and enforcements of the American judgment, nevertheless considered that there was no violation of French international public policy.

Analysis of a decision with surprising implications.

The Emergency Law to deal with the Covid-19 epidemic empowers the Government to take, by means of Ordinances, the adaptation measures intended to put in place health emergency arrangements.

As a result, the Government adopted 25 Ordinances on March 25, 2020. In judicial matters, several Ordinances were issued to govern the organization of courts and procedures during this crisis.

Regarding specifically the rules of civil procedure, two Ordinances have been adopted and have a significant impact on (i) applicable time-limits and the conduct of civil proceedings, and (ii) the organization/operation of courts ruling in non-criminal matters.

For several days now, the French have been observing a strict confinement following presidential and governmental instructions to stem the spread of the Covid-19 virus. There are many concerns and uncertainties remaining as to the outcome of this international crisis.

What is the impact of this situation on the French judicial life? Here is an update on the measures taken and envisaged with regard to civil proceedings.

In order to deny the jurisdiction of the Commercial Court of Saint-Malo before which proceedings had been initiated against one of our clients, a Swedish company, the Court of Appeals of Rennes, with which we filed a jurisdictional objection, ruled that an arbitration clause was enforceable against our opponent event though it had not signed […]