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France’s attractiveness: will the International Chamber of the Paris Court of Appeal open the door to a new way to litigate in France?

On February 7, 2018, were enacted the new rules applicable to the already existing, albeit rarely used, International Chamber of the Paris Commercial Court and the ones applicable to the newly created International Chamber of the Paris Court of Appeal. The first status hearing of this new appellate Chamber took place beginning of June 2018 and the first trial hearings are expected to take place in September 2018.

If you have already experienced commercial and civil litigation in France, you will know that it is very differently organized than in the common law system. Indeed, the proceedings are "written proceedings", meaning that what is relevant for the Judge is what has been included in the parties' submissions and the written exhibits they have filed. There are no Expert or witness oral testimonies. Any insight on a matter will be provided by way of written statements or affidavits. Furthermore, Court hearings are very short, less than half a day, and some Judges even request that each party speak for no more than 10/15 minutes only.

The French Court system is always very surprising for common law educated lawyers and not positively perceived in general, with companies fearing that Judges alone, without Expert or witness guidance, are more likely to misunderstand complex facts. This concern is heightened by the fact that there is no discovery in France, meaning that each party is free to file whatever exhibit it wants.

The International Chamber of the Paris Court of Appeal will have this whole process changed for all cases that will be brought before it. These will be commercial cases with an international reach. Cases relating to international commercial contracts will obviously be concerned but also more specific issues such as arbitration award recognition/enforcement for instance. The Judges of this Chamber have stated that should a case require the specific knowledge of Judges from another Chamber (e.g. the Chamber specializing in patent or intellectual property rights), they will be entitled to ask for their assistance.

What's new is notably that the rules relating to this new Chamber allow for documents filed as exhibits to be in English, with no French translation required.

Parties will be entitled to have Expert oral testimonies as well as witness oral testimonies organized. Testimonies in English will be allowed.

Furthermore, the oral arguments and the whole trial hearing could be in English if the parties want to, as the Judges of this Chamber will be fluent in English (one of the Judges currently sitting in this Chamber worked for international law firms before becoming a Judge). The goal is even to have other languages accepted as long as all parties agree and the Judge understands the said language.

Foreign lawyers from foreign bars will also be allowed to try cases or part of cases, examine/cross-examine witnesses/Experts, if all parties agree.

Another interesting feature is that parties will be allowed to request documents from the opposing party with the authorization of the Court.

The only part that will have to be in French are the written submissions and any compulsory procedural document (e.g. the statement of appeal) in order to later allow the Supreme Court to have documents in French.

One should realize that this is a revolution in how to approach litigation in France. French lawyers will have to learn how to litigate differently. They will have to learn how to examine/cross-examine a witness or an Expert, request documents from the opposing party they would never have imagined being allowed to request, deal with exhibits in a language other than French, hold a Court hearing in English, etc.

What's interesting is that the Judges currently sitting in this new Chamber explain that this new way to proceed does not require a change in the French Code of Civil Procedure and that the latter provides for possibilities to litigate differently in France depending on how you interpret its provisions. Indeed, for instance, the French Code of Civil Procedure does allow for oral testimonies if the Court deems it necessary. Up until now, Courts always refused to allow them, generally in the interest of time and for organizational purposes, so much that French lawyers no longer ask for them.

The International Chamber has stated that it will allow them and have a broader interpretation of the above Code. The Judges openly stated that sky is the limit and that they encourage lawyers who will try cases before them to be innovative and proactive in the way they ask for common law or any other foreign law steps to be implemented.

For now, the most effective way to bring a case before this Chamber is to mention on the statement of appeal that you would like to have your case heard by this Chamber. The Clerk will then determine, with the Presiding Judge of the Court of Appeal, if this is appropriate. Even if the appellant forgets to request that his/her case be heard by this Chamber, we were told that the Clerk has been trained to identify the type of cases that should be allocated to this Chamber.

Later, the goal will be for this Chamber to be an independent recognized Court that could also be chosen by companies through jurisdiction clauses in their contracts. Indeed, let's not forget that for now, if a contract mentions this Court as the forum to litigate, this clause may be deemed ineffective as the French Code on Judiciary Organization has not yet been amended. If parties really want to mention this Chamber in their contracts as from now, they should mention that it is a Chamber of the Court of Appeal and not a Court itself.

This new approach should make France more attractive for foreign companies who tend to choose London as the seat of their litigation cases and who also still favor arbitration despite its length and cost.

If this Chamber is successful, the goal will be to have this different interpretation/approach of the French Code of Civil Procedure extended to the other chambers of the Paris Court of Appeal and even to all Courts in France. Obviously, this may at some point lengthen proceedings and increase lawyers' fees that companies are used to paying in France as more procedural steps and possibilities will suddenly be open but let's keep in mind that trying a case in France is free, which is a significant advantage compared to arbitration or proceedings before common law Courts.