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02 July 2019
On 7 February 2018 two protocols (ie, the Protocol on Procedural Rules Applicable to the International Chamber of the Paris Commercial Court and the Protocol on Procedural Rules Applicable to the International Chamber of the Paris Court of Appeal) establishing the rules applicable to proceedings brought before the modernised International Chamber of the Paris Commercial Court and the new International Chamber of the Paris Court of Appeal (collectively the ICCP) were signed.
François Ancel, the current president of the new International Chamber of the Paris Court of Appeal (CICAP), has notably explained that the "creation of CICAP is one of the consequences of globalization, the effects of which have had an impact on legal systems". Indeed, the multiplicity of European and international norms, which enable parties to an international contract to choose their jurisdiction, has enhanced competition between EU member states' legal and judicial systems. Thus, France has engaged in a trend of modernisation in order to strengthen its own judicial system's attractiveness.
The president also indicated that the creation of the CICAP and the modernisation of the International Chamber of the Paris Commercial Court took place following the establishment of a think tank requested by the French Ministry of Justice in order to better adapt the French legal and judicial system to contemporary international economic challenges. Brexit has confirmed the need for such a reform, as the United Kingdom's withdrawal from the European Union will prevent such states from benefitting from the immediate recognition and enforcement of judgments in other EU member states, giving French judgments significant weight in this regard.
Since their implementation, the ICCP have already rendered several decisions.
The ICCP (first instance brought before the Paris Commercial Court and, on appeal, before the Paris Court of Appeal) comprises English-speaking judges who have prior and strong experience in monitoring international commercial disputes.
The ICCP have jurisdiction over disputes relating to international contracts – in particular, those to which EU or foreign law applies and those where a defendant is a foreign party (preamble of the protocol).
According to the protocol, transnational commercial disputes include disputes relating to:
In addition, the said courts' jurisdiction may result from a contractual clause conferring jurisdiction to the courts located within the Paris Court of Appeal's judicial authority. In this respect, the French working group Paris Place de Droit has proposed a template that would enable parties to give jurisdiction directly to the international chambers of the Paris courts:
All disputes arising out of or relating to this contract, including issues relating to the performance, interpretation, validity, breach or termination thereof, shall be subject to the [exclusive] jurisdiction of the International Chamber of the Paris Court of First Instance (Tribunal de commerce de Paris), and all appeals from any decision of such court shall be subject to the [exclusive] jurisdiction of the International Chamber of the Paris Court of Appeal. The parties hereby unconditionally agree on the protocols which set out the terms pursuant to which the cases will be examined and adjudicated before these chambers.
Without this jurisdiction clause, the parties will agree to be judged by these specific international chambers and to be bound by the protocols.
The new ICCP procedures have been adapted in order to introduce the English language into proceedings.
Hence, although procedural orders and decisions will be drafted in French, written submission in English may be given without translation, and the parties, witnesses, experts and legal counsel – when authorised to plead before the Paris Court of Appeal – may plead in English (Article 2 of the protocols). Moreover, the court's judgment will be drafted in French along with a sworn translation in English (Article 7 of the protocols).
In addition, inspired by common law procedural rules, the protocols stress the importance of the administration of evidence, which is conducted by the pre-trial judge (Article 4 of the protocols). In this context, the pre-trial judge will hear the parties' requests, if any, for witness or expert oral testimony, offering the parties the chance to be strongly involved in the proceedings' conduct.
At the hearing, each party has the opportunity (under the judge's supervision) to ask the other party questions, reflecting in this respect the common law tradition of cross-examination, which also exists in international arbitration.(1)
Since its creation, the CICAP has been in charge of more than 20 proceedings.
On 15 January 2019 it rendered its first decision under the protocol in relation to a case between a French and a US company, in which the contractual liability of the US transport company had been questioned following the disappearance of two parcels containing precious objects which were to be carried from Colombia to France.(2)
Other CICAP judgments have since been rendered, including (among others):
According to President Ancel, there is still no sufficient hindsight to make a first assessment on the ICCP's functioning, although the objective is that the ICCP render decisions "in reasonable delays" and that practitioners and judges shift from a theoretical to a pragmatic approach in the processing of commercial litigation.
In this respect, the goal is to create a real and complete procedural guide in order to permit parties to know the precise conditions and conduct of proceedings before such chambers.
For further information on this topic please contact Nicolas Contis or Talel Aronowicz at Kalliopé by telephone (+33 1 44 70 64 70) or email (firstname.lastname@example.org or email@example.com). The Kalliopé website can be accessed at www.kalliope-law.com.
(1) Article 4.2.1 on Procedural Rules Applicable to the International Chamber of the Paris Commercial Court and Article 5.2.1 of the Protocol on Procedural Rules Applicable to the International Chamber of the Paris Court of Appeal.
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