A new obligation requires parties to seek amicable resolution to a dispute before referring it to the court.
A New Obligation Entered into Force on 1 April 2015
Since 1 April 2015, parties to a civil or commercial dispute are encouraged to seek an amicable settlement before they refer the matter to a judge (decree of 11 March 2015 (No. 2015-282)).
Hence, Article 56 of the French Civil Procedure Code, amended by Article 18 of said decree, now provides that “unless a legitimate reason is provided with respect to urgency or to the matter at issue, in particular when it concerns public policy, the summons shall also specify the steps taken with a view to reaching an amicable resolution of the dispute”. The same requirement also applies to other referral methods, such as petition and statement (Article 19 of the decree).
Consequently, except in certain cases (mainly related to urgency or public policy), parties must have attempted to resolve their dispute amicably before serving a summons, which must mention the attempted amicable settlement.
No Sanction Imposed
However, this new obligation is not subject to an actual sanction since non-compliance therewith does not entail invalidity of the summons but merely confers on the judge the ability to “propose to the parties a conciliation measure” (new Article 127 of the French Civil Procedure Code).
The Requisite Adaptation
To avoid delaying proceedings, a claiming party will need to ensure that it complies with this obligation and should include an indication of that compliance in its formal notice. The party should also have its lawyer conduct discussions to protect the party from confidentiality issues and to ensure that the settlement negotiations (should they fail) are not disclosed in the context of the subsequent judicial proceedings.
To reconcile the obligations under the decree and the confidentiality requirements, a creditor party should use the following wording in its formal notice: “We are not opposed to an amicable resolution of our dispute and propose, to this end, that your counsel liaises with ours, the contact details of whom are indicated below. Please note that, in the absence of response within [8 or 15 days—indicative time limit], we will consider that you refuse any amicable settlement”.
Likewise, the lawyer’s formal notice that may follow will state that “In accordance with Articles 56, 58, and 217 of the French Civil Procedure Code, we are at your counsel’s disposal for any meeting that he or she may wish with a view to reach an amicable resolution of this dispute. Please note that, in the absence of response within [8 or 15 days—indicative time limit], we will consider that you refuse any amicable settlement”.