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.
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.