The Commercial Division of the Supreme Court has clarified how an assignment of business receivables, known as a 'Dailly assignment', operates. Through this decision, the Supreme Court has reinforced the effectiveness of the Dailly assignment mechanism by giving full effect to the assigned debtor's actual knowledge of the assignment and by giving no effect to contractual provisions that restrict assignment.
Since the Harvey Weinstein case, French society has been shaken by a social media movement in which #balancetonporc ("denounce your pig") has prompted a frenzy of reactions, from women revealing incidents that they had previously kept to themselves to false accusations and endless debate regarding what is considered as offensive. The recent spotlight on this issue provides an opportunity to describe the system in place for cases of sexual harassment in the workplace.
Ordinance 2017-1674 of December 8 2017 introduced into French law the legal framework for the use of a blockchain in order to record the ownership and transfer of unlisted securities. This groundbreaking reform is an essential step towards the modernisation of the existing rules governing the transfer of unlisted securities. Blockchain technology will considerably facilitate and secure the transfer of securities and will undoubtedly have an impact on private M&A deals.
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.
The extent of the group in the context of a franchising network has given rise to a number of court decisions, leading to some uncertainty for employers as to the scope of their reassignment obligations. A set of bills was recently enacted as part of the priority measures intended to bring greater flexibility to labour legislation. One such measure provides a narrow definition of a 'group' in relation to the obligations to reassign employees who are dismissed either for economic reasons or for personal inability.
Parties' ability to choose their arbitrators remains one of the most frequently mentioned advantages of arbitration over litigation. However, this freedom makes sense only if it preserves the overarching duties of arbitrators and judges alike – that is, the duty to be and remain independent and impartial from the parties.
Since 2016 the government has modified the law on economic dismissal on several points. Under French labour law, any economic dismissal must be justified by actual and serious grounds. Among other recent changes, the introduction of the El Khomri Law has clarified the definition of 'economic motivation' to take into account the Court of Cassation's case law and added two new reasons to the list of economic grounds under the Labour Code.
Following the introduction of Ordinance 2016-1635 and Decree 2017-1094, non-listed companies which previously were not required to disclose the identity of their shareholders and maintained confidentiality through shareholders' agreements must now disclose their beneficial owners not only when a company is set up, but also on a continuous basis. However, the definition of a 'beneficial owner' remains unclear.
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.
The new law on the duty of vigilance for parent companies and principal contractors aims to improve the accountability of multinational companies, prevent serious incidents in France and abroad and allow parties to obtain compensation for losses which they suffer as a consequence of non-compliance. To achieve these aims, the law requires companies to draft an awareness plan and implement a monitoring and whistleblowing system. It also introduces penalties for non-compliance.
The new government has upheld its promise to reform French labour law and enacted five ministerial orders, one of which is dedicated to the so-called 'visibility and securing of working relationships'. In particular, a damages scale, which will be mandatory for the judge and parties, will be introduced to provide security and clarity regarding the consequences of potential litigation. This scale, through the predictability that it provides, is meant to remove uncertainty and allow the creation of jobs.
The foreign investment rules provided under the Monetary and Financial Code were recently amended. M&A practitioners have welcomed the reform of the foreign investment rules, as it reduces the paperwork for foreign investments not falling within the scope of the prior authorisation regime. In addition, this reform has removed a cumbersome administrative procedure considered redundant.
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.
One of the key components of any franchise agreement is the transmission of know-how by the franchisor to the franchisee. Absent this, the agreement may be held null and void or requalified as a mere distribution agreement. In a recent decision, the Supreme Court held that the absence of any pilot outlet run by the franchisor does not amount to a lack of know-know transmission.
The Sapin II Law aims to support transparency, modernise business activity and combat corruption. It introduces measures to regulate executive pay in listed companies, simplify company law and modernise bond issues. Among other things, it has simplified the procedure for contributions of goodwill, abolished the prior authorisation requirement for certain transactions and simplified the procedure for issuing bonds.
The Versailles Court of Appeal recently affirmed the Nanterre Court of First Instance's decision in relation to the transfer of three domain names infringing the trademark of a collectivité territoriale (the catch-all term for French communes, departments and regions). The court of appeal reviewed three decisions delivered under SYRELI, an alternative dispute resolution procedure, to resolve domain name disputes under the '.fr' country code extension for France.
As influencers' content and communications are expanding internationally and in quite diverse ways, the Advertising Professional Regulatory Authority recently published new recommendations in relation to influencers' content, statements and publications. These first recommendations are an important starting point in the establishment of a legal regime applicable to these new actors and types of publication.
The Macron Law and its implementation decree constituted breakthrough legislation for intercompany loans as they provide new exemptions to the French banking monopoly. The reform allows companies to overcome the difficulties faced when trying to secure a loan from banks and credit institutions. However, the newly authorised intercompany loans remain subject to several conditions that may significantly narrow the impact of this reform.
The Paris Court of Appeal recently found that, among other things, use of the domain name 'lecomptoirducoton.fr' had resulted in both trademark infringement and unfair competition in relation to the trademark COMPTOIR DES COTONNIERS. According to the court, when a domain name is not identical to a trademark, the likelihood of confusion between the two signs should be assessed. This assessment includes a likelihood of association, which should be evaluated internationally.
Under French civil law, a party to a contract has a duty of loyalty to its contracting party in the performance of the contract. The Supreme Court recently applied this duty of loyalty to a franchisor which had concluded a framework contract with a master franchisee. The court held that the franchisor did not cooperate with, assist or advise the master franchisee loyally. The court also held that it had terminated the framework contract in an unfair manner.