“France is back!” seems to be the recurring theme behind many new French government initiatives aimed at attracting more investment into France, and to try to benefit from the economic and legal uncertainty resulting from the UK’s planned departure from the European Union. This also applies to the French legal system, which is seeking to attract the resolution of more international disputes through the creation of a dedicated International Chamber within the jurisdiction of the Paris courts. Do the English courts need to worry that their dominant position is being threatened?
> Creation of a harmonised first instance and appellate international chamber within the jurisdiction of the Paris courts
> A jurisdiction specialised in international commerce and trade disputes
> A procedural system inspired by that of the English common law, allowing flexibility in the production of evidence, increased use of the English language and pre-determined procedural timelines
On 7th February 2018, a protocol was signed between the First President and the Prosecutor General of the Paris Court of Appeal and the president of the Paris Bar (the ‘First Protocol’) for the creation of the International Chamber of the Court of Appeal of Paris (the Chambre Internationale de la Cour d’appel de Paris, “CICAP”).
On the same day, a second protocol was signed by the President of the Tribunal of Commerce of Paris and the president of the Paris Bar (the ‘Second Protocol’) in order to harmonise the procedure applicable to the International Chamber already existing within the Tribunal of Commerce (the Chambre de Droit International, ‘CDI’).
The existing first instance international chamber –
The CDI was created in 1995, has 10 English-speaking judges, and hears commercial disputes with an international dimension, in particular those involving or likely to involve the application of foreign laws (Second Protocol, article 1.1).
The CDI is (in fact was) relatively unknown both to legal professionals and to business persons, who are more likely to refer their international disputes to the English courts or international arbitration. The creation of CICAP has served to shine a light on the CDI.
Harmonised first instance and court of appeal
The new CICAP now ensures that a similar specialised Chamber will be able to hear appeals from the first instance CDI, as well as any disputes involving international commerce, and in particular disputes arising from the areas of commercial contracts, transport, unfair competition, anti-competitive practices, banking and finance (First Protocol, article 1.1). This completes the initial initiative to have a specialised international business chamber (both in first instance and an appellate jurisdiction) and to put in place a uniform procedure between these two instances.
According to the new procedural rules, the parties to a dispute will be asked during a first procedural hearing whether they wish to apply the new procedural rules set forth by the protocols (First Protocol, article 4.1).
This harmonisation has its limits, however: no such provision was included in the Second Protocol regarding the CDI: the Tribunal of Commerce itself will decide whether a dispute should be redirected to the specialised CDI, on the basis of the nature of the dispute in question (and whether it qualifies in terms of the parties or the subject from an international perspective).
However, parties remain free to agree in their contractual arrangements to refer a dispute to the CDI. Appeals from decisions rendered by the CDI will automatically be heard by the CICAP.
Largely inspired by the English common law, the new procedural rules seek to reinforce the attractiveness of French jurisdictions for the settlement of international disputes. The main innovations in the protocols are related to the language used before the French tribunals, the hearing of witnesses and experts, and the applicable rules of evidence.
Since the Order of Villers-Cotterêt (1539), claim forms, submissions, and judicial decisions arising in connection with litigation before the French courts, must be drafted in the French language, as well as the documents disclosed during such proceedings.
The protocols now allow for the disclosure of documents in the English language without the need for translation into French (First Protocol, article 2.2; Second Protocol, article 2.3).
Submissions and judicial decisions will still be issued in the French language only, but an official translation into English will be made available, at the cost of the losing party (First and Second Protocols, articles 7).
The hearing of witnesses and experts
It will be possible to hear the evidence of witnesses and experts in English, as all the judges will be English-speaking. Live translations may be organised to ensure publicity in French. Such hearing will be conducted by the judge directly, on the basis of the written statement or report issued by the witness or expert (First Protocol, articles 5.4 to 5.5; Second Protocol, article 4.4 to 4.5).
The CICAP and the CDI will apply French procedural rules permitting a party to obtain the forced disclosure of documents required by it as evidence necessary for the settlement of the dispute (First Protocol, article 5.1; Second Protocol, article 4.1). Admission of statements will also be easier since, with the parties’ consent, typed statements will be admissible without the usual requirement for them to be signed under hand d (First Protocol, article 5.3; Second Protocol, article 4.3).
Moreover, as stated above, exhibits produced in English will be admitted without translation into French (First Protocol, article 2.2; Second Protocol, article 2.3).
An opportunity arising from Brexit?
The recent efforts to develop a more specialised dispute resolution system in France is taking step further with the creation of CICAP and the implementation of a harmonised body of procedural rules to hear international disputes. These efforts are clearly directed towards a more business-friendly approach to international dispute resolution, in competition with the widely recognised popularity of the English courts in this field (whether in international finance, energy, shipping, trade or other international commercial disputes).
Will this be sufficient? One can hope that this will contribute to attracting more international dispute resolution in France (which is already a major dispute resolution centre thanks to the ICC). Paris has a very-well established cohort of international dispute resolution lawyers, whether in the major French law firms, their Anglo-Saxon competitors or some recently developed boutique dispute resolution law firms.
Moreover, with the UK leaving the EU, the decisions rendered by the English courts will no longer benefit from the European regulations regarding recognition and enforcement of foreign judgments in Europe. This will need to be taken into account for parties opting to have their disputes heard by the English courts but with the risk of potential enforcement scenarios within Europe. The basis on which English decisions will be recognised and enforced in individual European countries is still unclear at this stage of negotiations between the UK and the EU.
However, one should not forget that the attractiveness of England as a dispute resolution forum also lies in the widely-held recognition of English law as a favourable choice of law to govern commercial parties’ relationships. This is due to a long standing business-orientated approach taken by the English law, based on a well-known body of precedents and widely interpreted business principles, all of which make English law a secure choice for doing business. This may change with the recent efforts of the French legislators to simplify and adapt French laws to the global competition (both economic and legal).
The protocols are already in force and apply to disputes/appeals introduced as from 1st March 2018.