Dispute Resolution in France

By Tim Portwood

Posted: 25th July 2011 11:45

France has a system of civil law in which its substantive and procedural laws are codified.  The procedural rules within this system are based on the inquisitorial rather than the adversarial model of procedure.

The main civil court in France is the High Court or Tribunal de Grande Instance.  This Court has jurisdiction over non-commercial matters.  It has also special jurisdiction over certain matters of importance to commercial parties such as patents and trademarks.  The majority of commercial disputes go, however, at first instance before lay courts – the commercial courts on which representatives of the business community sit.

There is an automatic right of appeal from decisions of the commercial courts.  On appeal there is a full rehearing of the evidence and argument in the case.  The filing of an appeal suspends the effects of the first instance decision (save for a court order to the contrary).  The right of appeal is often exercised.  This means that when estimating the length of any case, this second stage must usually be factored in.  Commercial cases usually last therefore a couple of years, at least.

Final appeals go before the Supreme Court, or Cour de Cassation, essentially on points of law.  These appeals do not suspend the effects of the appeals decision unless ordered otherwise.

Costs orders are usually made on the basis of the rule that costs follow the event.  However, there is no process of taxation or assessment of costs and the orders represent usually only a fraction of the actual costs incurred.

The French court system leaves little room for oral evidence and oral argument is much reduced as compared to its common law counterparts.  Cases are usually decided on the basis of documentary evidence (contemporaneous records and correspondence) and written submissions.  There is no prescribed system of discovery and no rule that a party must disclose all documents in its possession that are in support of or adverse to its case.  Orders for the production of specific documents may be obtained, but these are not a matter of routine.

The inquisitorial nature of the system fills the gaps left by the absence of any specific procedure of discovery.  Two fundamental features of the system are the function of the court bailiffs or huissiers who are often used to provide independent factual evidentiary reports for the court (e.g., on the physical state of buildings, etc.) and the appointment by the court of experts to investigate factual matters in particular in technical cases or to assess damages.

Pre-trial conservatory or interim measures are a common feature of the French civil law system and the use of ex parte procedures is frequent to protect the efficiency of any judgment that may be rendered.  Once the principle of the claim is shown and it is demonstrated that there is a threat to recovery, conservatory measures may be obtained.  There is no duty of full and frank disclosure.

Mediation of disputes is becoming more frequent in France.  The civil procedure code contains modern provisions designed to facilitate the use of mediation and the courts make more frequently today directions to the parties to attempt to resolve their dispute through mediation than in the past.

The French law on arbitration which has recently been reformed (in May of this year) is one of the most modern and efficient.  The attitudes of the courts to arbitration have for decades been pro-arbitration.

The French courts are obliged to decline jurisdiction over any case in which the existence of an arbitration agreement is pleaded unless it is shown that the arbitration agreement (as opposed to the main agreement to which it relates) is manifestly illegal or inapplicable.  The general rule is therefore that it is for the arbitral tribunal (once constituted) to decide on its own jurisdiction.

The French courts do not interfere with the arbitral process unless called upon by the parties to do so at the stage of the constitution of the arbitral tribunal or when their assistance is needed for evidence gathering purposes.

The process of obtaining an order for the enforcement of an international arbitral award is cheap, quick and easy.  It is done on an ex parte basis with the support of a copy of the award and arbitration agreement.  Challenges to the award do not suspend the effects of the award unless the Court of Appeal decides otherwise.  Errors of law or manifest disregard of the law are not grounds for vacating international arbitral awards and the French courts never review the merits of international arbitral awards.

The ICC Court of International Arbitration has its headquarters in Paris.  This has led to Paris being used frequently as a seat for arbitration.  In turn, this has led to the development of an abundant body of arbitration-friendly case law of the French courts, often seen as avant-garde in nature.  The reform of the law, which was designed to make the law more accessible for foreign users and to codify much of this pro-arbitration case law ,has assisted in maintaining France at the cutting edge of legal thinking in the field of international arbitration.

 

Tim Portwood is a partner at Bredin Prat, and a French qualified English barrister. He specializes in international arbitration and international litigation. Born in the United Kingdom, Tim Portwood graduated from Cambridge University with a double first Honours degree in law. Prior to joining Bredin Prat in 1996, Tim Portwood practised as a Barrister with Old Square Chambers in the U.K. He was the co-editor of European Human Rights Reports (1991-1994) as well as the author of "Mergers in European Community Law” (Athlone Press, 1995), and of "Competition Law and the Environment” (Cameron May, 1995) and a number of recent articles on international arbitration law.  Tim Portwood is a native English speaker and is also fluent in French, Italian and German.  Mr Portwood can be contacted on + 33 1 44 35 35 35 or by email at timportwood@bredinprat.com 

 


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