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.
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.
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.
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.
The commercial branch of the Supreme Court recently renewed its application of the res judicata principle when the situation acknowledged by the first-instance judge was modified by subsequent events. The court confirmed the first-instance decision despite opposition from the seller of a shop, who argued that the res judicata principle barred the admissibility of the purchaser's action grounded between the same parties on the same object and cause.
A party wanting to preserve or establish evidence of facts on which the solution of a dispute might depend can ask the judge before the trial commences to appoint a judicial expert to draft a report on the matter. If the other party is dissatisfied with the report's findings, it may want to seek nullification of the report. The conditions for nullification are strictly defined by case law and although the effects can be powerful, they can also be disappointing.
The quest for evidence in civil and commercial litigation is often a major strategic challenge, as the quality and strength of evidence provided by the parties may determine the outcome of the trial. When a party involved in French proceedings needs to collect information or documentation abroad which is crucial to the success of its claims, it can rely on two legal instruments, depending on where the evidence is situated.