The practice of arbitration in China has experienced in recent years a
very rapid development. The purpose of this article is to present the
main innovations in these Rules, particularly in terms of appointment
referees.

I - The new CIETAC regulations

L’institution principale arbitrale chinoise – la CIETAC (China international economic and trade arbitration commission) – a adopté le 11 janvier 2005 un nouveau règlement d’arbitrage qui est entré en vigueur le 1er mai de la même année. L’innovation essentielle de ce Nouveau Règlement est de permettre aux parties de choisir des arbitres en dehors de la liste officielle ou “panel” publié par la CIETAC. Sous l’emprise de l’ancien règlement, le choix des parties était restreint à quelque sept cents noms inscrits sur la liste de la CIETAC. Cette limitation était l’une des principales critiques portées à l’encontre de l’institution arbitrale chinoise. Selon le nouveau règlement, la désignation des arbitres en dehors de la liste officielle peut s’applique à tout arbitre composant un tribunal arbitral : à un arbitre statuant seuls ou aux deux co-arbitres choisis par chacune des parties ainsi qu’à l’arbitre président du tribunal arbitral, désigné par commun accord des parties ou, à défaut, par le président de la CIETAC.

As a result, the parties now have the possibility to appoint arbitrators
outside the panel, subject to confirmation by the president of the
CIETAC. Although the criteria for confirmation are not stated, this
procedure seems justifiable insofar as it makes it possible to verify
the suitability of the arbitrator so appointed. It should be noted that a procedure for
confirmation of the arbitrators is also provided for by the arbitration rules of the
CCI. On the other hand, the New Regulation does not specify the modalities by
which the parties can agree to choose arbitrators outside
the CIETAC list. In the absence of contrary provisions, it therefore seems
allowed to provide for this possibility from the arbitration clause before birth
litigation.

Un point qui mérite d’être soulevé est que la CIETAC est très ouverte pour les arbitres étrangers, puisque sur la liste des arbitres, on trouve qu’un tiers des arbitres sont de nationalité autre que chinoise. L’article 13 de la loi chinoise sur l’arbitrage prévoit que les arbitres devront satisfaire à l’une des qualifications suivantes:
(1) avoir pratiqué l’arbitrage pour une période minimum de huit ans;
(2) have been a lawyer for a minimum of eight years;
(3) have been a judge for a minimum period of eight years;
(4) avoir eu une activité d’enseignement ou de recherche juridique à un niveau très élevé;
(5) disposer de connaissances juridiques, d’une pratique professionnelle dans le domaine des relations économico-commerciales, d’une activité professionnelle à un niveau très élevé et être considéré comme tel dans les milieux professionnels.

II - Arbitrations before the ICC

Chinese law allows the use of foreign arbitration institutions to
disputes with a foreign element. When the place of such arbitration is
located abroad, the arbitration clause and the corresponding awards are
protected by the New York Convention, to which China is a party, which
strictly limits the cases of their questioning by the courts.
On the other hand, when the place of arbitration is China, the arbitration clause and
the corresponding award are not covered by the New Convention
York and their validity is then assessed exclusively with regard to domestic law.
Chinese.

L’article 161 de la Loi chinoise sur l’arbitrage dispose que la mention d’une “commission d’arbitrage choisie par les parties” dans une clause d’arbitrage est une condition de sa validité. A cet égard, afin d’atténuer le risque de la voir “annulée au motif d’une référence insuffisamment explicite à l’institution d’arbitrage choisie” la CCI a décidé d’adapter sa clause type pour les arbitrages ayant lieu en Chine. Cette nouvelle formulation est la suivante : “Tous différends découlant du présent contrat ou en relation avec celui-ci seront soumis à la Cour internationale d’arbitrage de la Chambre de commerce internationale et seront tranchés suivant le Règlement d’arbitrage de la Chambre de commerce internationale par un ou plusieurs arbitres nommés conformément à ce règlement.” Néanmoins il semble que l’article 16 de la loi chinoise sur l’arbitrage est souvent interprété comme exigeant la mention d’une commission d’arbitrage enregistrée en Chine, ce qui n’est le cas d’aucune institution arbitrale étrangère. Il en découle qu’un risque d’annulation par les juridictions chinoises pèse sur les clauses prévoyant un arbitrage en Chine conformément au règlement d’une institution arbitrale étrangère. Quand à la CCI, il n’est pas clair jusqu’à maintenant si une clause prévoyant un arbitrage en Chine selon le règlement d’arbitrage de la CCI et désignant la Cour Internationale d’arbitrage de la CCI comme la commission d’arbitrage compétente serait valable en droit chinois. Cette incertitude peut poser des problèmes en pratique dans la négociation d’une clause d’arbitrage dans un contrat entre une partie chinoise et une partie non-chinoise, si la partie chinoise exige que le siège de l’arbitrage soit en Chine et l’autre partie refuse de se soumettre à une commission d’arbitrage chinoise.

Une solution a été proposée dans une conférence consacrée à l’arbitrage en
Chine, organisée par L’AIA (Association for International Arbitration) au
month of March 2009 in Brussels, it consists in designating Hong Kong as the place
de l’arbitrage en raison de son statut de Région Administrative Spéciale et la
loi chinoise sur l’arbitrage n’y étant pas applicable. Les sentences arbitrales
rendered in Hong Kong are not considered as sentences
foreigners in China. There is an agreement, which works well in practice, between
la Chine et Hong Kong du 2 février 2000 qui prévoit l’exécution en Chine des
awards rendered in Hong Kong and vice versa under very strict conditions.
similar to those of the New York Convention.

CONCLUSION

In recent years, disputes involving a Chinese party bringing before
CCI have increased considerably, although the proportion is not
very important compared to arbitrations administered by the ICC, but
the evolution is remarkable.

According to ICC statistics, about 60% of ICC arbitration awards to be executed in China are spontaneously executed by the Chinese side. The enforcement problem is no longer a major problem in China.

***

1. Article 16 of the Chinese Arbitration Law:
An arbitration agreement shall include the arbitration clauses provided in the contract and any other written form of agreement concluded before or after the disputes providing for submission to arbitration. The following contents shall be included in an arbitration agreement: the expression of the parties’ wish to submit to arbitration; the matters to be arbitrated; and the Arbitration Commission selected by the parties.
– the expression of the parties’ wish to submit to arbitration;
- the matters to be arbitrated; and
- the Arbitration Commission selected by the parties.

Kenneth WEISSBERG, Lawyer at the Paris Bar; Narjess NAOUAR, Student lawyer at the EFB in Paris

This question challenged us in a case which was submitted to the courts
Algerian women. The facts of the case were as follows: an Algerian national was
victim in 2002 of a plane crash in which 14 people died. The ticket
had been issued by Air Algérie for the Algiers - Cairo - Algiers route, but the
Algerian company had joined the services of another airline Egyptair.
It was near Tunis, where a stopover was planned during the Cairo - Algiers route that
produced the disaster. The victim suffered very significant damage, of a nature
psychological, physical and economic which she requested compensation from Air Algeria,
Egyptair and Boeing, manufacturer of the aircraft. The judgment in this case, which
been confirmed on appeal has put Egyptair - carrier in fact! - and Boeing, and
retained the responsibility of Air Algeria for an amount not yet fixed, an expertise having
been ordered for the purpose of determining the harm actually suffered by the victim.

The complainant requested compensation for the bodily and non-material damage suffered by her, founding
its action on the Warsaw Convention of 1929.

The Convention for the Unification of Certain Rules for International Carriage by Air
was signed on October 12, 1929 in Warsaw. It establishes a uniform international regime and has
the purpose of standardizing in the air transport of people, luggage and
goods, the rules relating to tickets and civil liability of the
carrier.

The Warsaw Convention applies in particular to all international transport of persons
performed by aircraft for remuneration. When it does not apply, it comes back to each
national legislation to determine the conditions of third party liability of the air carrier as well
that the types of damage giving rise to compensation and the extent of the compensation which will be
possibly paid.

When the Warsaw Convention is applicable and in the cases provided for in Articles 17 to 19, "any action for liability, in any capacity whatsoever, may be brought only under the conditions and within the limits" that she plans.

It is therefore not possible to circumvent the rules of the Warsaw Convention by availing oneself
other rules: it governs the dispute exclusively - this point has been the subject of important
doctrinal and jurisprudential discussions - and national laws will only intervene on
the subjects it does not deal with.

The presumption of responsibility laid down by Article 17 of the Warsaw Convention finds
application where an accident on board an aircraft was the cause of the damage for which it
is requested repair. Thus, any damage, material or bodily, suffered by the passenger
during the time of transport presumes the fault of the carrier and engages its
responsibility.

The Warsaw Convention lists three categories of cases for which the applicant
can take legal action. One of these categories covers death, injuries and injuries
bodily.

If the expressions "death" and "injury" do not call for particular observations, it
is otherwise from the concept of "bodily injury". The question is whether this
expression, referred to in Article 17 of the Warsaw Convention, includes trauma
caused by the accident and which led to feelings of anxiety and depression as well as
other emotional and psychological damage, which would compensate
moral prejudice suffered, on the basis of this text.

There is no international jurisdiction ensuring a uniform interpretation of the
Warsaw Convention. It is therefore likely to have a different scope depending on the
country.

Furthermore, the Warsaw Convention only regulates the origin of the damage, its causes
(death or injury), it defers to national law for the determination of damages
compensable and the extent of compensation.

Under Article 28 of the Warsaw Convention, the applicant has a choice, which allows "forum shopping". Thus, he can practically choose between three forums, on the condition that they are located "in the territory of one of the High Contracting Parties":
• the court at the main seat of the carrier's operation or its domicile;
• the court of the place where the carrier has an establishment by whose care the contract was concluded;
• the court of the place of destination.

The court of the place of call and the court of the place of occurrence are therefore excluded
the accident if the carrier is not established.

Thus, the claimant will in practice be led to choose the court which will accept to compensate
a certain type of damage, or the one that will give him the greatest compensation.

The issue of compensation for mental harm has given rise to a number of
decisions in France and the United States, countries sharing the prominence in terms of
air disputes.

I. Reparation for non-pecuniary damage in France

It should be noted that in matters of air carrier liability, the rules of the Warsaw Convention are applicable both in domestic law and in international transport within the meaning of the Warsaw Convention. In fact, the Civil Aviation Code (1) makes the provisions of the Warsaw Convention on the liability of air carriers applicable in French domestic law. The responsibility of the air carrier can only be sought under the conditions and limits provided for by the international treaty.

In France, airlines often tend to compensate automatically and
of themselves the victims in the event of an air crash, without even waiting for the latter to
resort to justice. Thus, the French courts have still not had to rule
on the question of what is covered by the concept of "bodily injury", if it includes
only the lesion which only causes physical harm or if it also includes
an injury which caused psychological damage.

In one case (2) where the problem could have been posed - victims of an act of piracy
demanded compensation for their “physical, nervous, material and moral damage” -
Compagnie Air France did not contest the application to the facts of the case of article 17 of
the Warsaw Convention. A judgment (3) rendered by the Court of Cassation in 1982, without examining
the issue head on or hold the air carrier liable, reports damage
experienced by passengers victims of an air piracy operation "both in terms
physical than psychically. " In this case, the air carrier had been exempt from
any responsibility for the physical and psychic damages undergone by passengers not
not because the psychological damage would not be compensable but because the carrier
proved that he had taken all necessary measures to avoid the damage within the meaning of
Article 20 of the Warsaw Convention.

In social law, where the problem is posed in the same terms - the concept of industrial accident
"Is legally characterized only by bodily injury" - a judgment (4) of the Court of
cassation assimilated a simple mental disorder to a bodily injury. The Court of Cassation
a récemment retenu cette qualification pour une dépression nerveuse apparue à la suite d’un
entretien d’évaluation(5). La notion de lésion corporelle est donc entendue largement,
puisqu’elle s’étend aux troubles psychiques. La même solution pourrait être étendue à
the interpretation of Article 17 of the Warsaw Convention.

The Warsaw Convention relies on national law to determine the types of
repairable damage. Under French law, the damage is repairable, on the basis of
article 1382 of the civil code which applies as well to the moral damage as to the damage
material (6), since it is personal, direct and certain (7).

Thus, when these three elements are met, the victim can claim compensation for
any attack on physical integrity, for the pain she experienced in her flesh, physical
or moral.

Jurisprudence, while subscribing to a dualist conception of pretium doloris, a notion which
covers endured physical or moral suffering, removes it during the victim's lifetime
the existence of non-pecuniary damage which is thus based on the legal definition of pretium doloris.

Apart from the extreme hypothesis of victims infected with the AIDS virus, it does not seem
no example of compensation for moral injury separate from that of suffering
principles that go into the composition of pretium doloris.

Indeed, it is generally accepted that personal bodily injury covers the
pretium doloris ("suffering endured"), the aesthetic prejudice, the prejudice of pleasure, the
sexual prejudice, and juvenile prejudice, and these posts seem to overlap so
exhaustive all the consequences on a moral and subjective level of the attacks and
after-effects suffered and endured. Therefore, it seems difficult today to identify a concept
radically new that would make up for an aspect of moral injury distinctly different from those
that repair the aforementioned posts.

The Court of Cassation recently quashed a judgment of the Aix-en-Provence Court of Appeal which
had accepted a victim's claim for moral damages separate from the pretium
sore for the victim's awareness of the seriousness of irreversible damage and
recalled that compensation for the price of pain compensated for both physical suffering and
les souffrances morales et qu’en indemnisant un préjudice moral distinct, les juges du fond
had awarded compensation in excess of the amount of the damage (8). The Court of Cassation
had previously stated that "by compensating the price of pain, are repaired,
not only physical suffering, but also moral suffering ”(9).

However, even if the courts are reluctant to admit the existence of non-pecuniary damage
separate, it is only to the extent that they consider that this type of damage is compensated for
title of the price of pain. Consequently, the psychological damage suffered following an accident
occurred during an air transport operation governed by the Warsaw Convention is without
contests repairable and repaired.

II. Reparation for non-pecuniary damage in the United States

A. Reparation for purely moral damage

The interpretation of the term "bodily injury" or "bodily injury" in English translation has
has been debated in numerous federal and state judgments.

American jurisprudence retains a restrictive conception of the notion "lesion
corporeal ”referred to in Article 17 of the Warsaw Convention since it considers that
this notion does not include mental harm. This position was confirmed in a judgment
rendered by the United States Supreme Court, Eastern Airlines v. Floyd (10), April 17, 1991.

By this judgment, the Supreme Court reversed the judgment of the Federal Court of Appeal of the 11th circuit
which considered that article 17 of the Warsaw Convention authorizes the reparation of disturbances
purely psychic in the absence of physical damage. The Court of Appeal's analysis had
been found convincing and followed by other jurisdictions, including the Supreme Court of
the State of Florida (11), in a case concerning the same accident, and the District Court
from Colorado (12).

However, in the current state of the texts, the position of the American Supreme Court is well
established: Article 17 of the Warsaw Convention does not allow compensation for damage
purely psychic.

B. Compensation for non-pecuniary damage accompanying bodily injury

The jurisprudence of the Supreme Court which excludes compensation for mental harm in
the absence of any bodily injury did not rule on whether the
Warsaw Convention authorizes compensation for mental harm accompanying
bodily injury.

No American court seems to have found that the Warsaw Convention excluded in
in all cases compensation for moral prejudice. In Jack v. Trans World Airlines,
Inc. (13), the court rejected this approach on the grounds that it overly restricts
important passenger rights.

On the contrary, the majority current, which is mainly based on this jurisprudence
considers that mental harm can be repaired insofar as such harm is
caused by the physical injury suffered.

In Jack v. Trans World Airlines, Inc., the court assessed the different solutions
possible with regard to compensation for non-pecuniary damage in the context of the application of the
Warsaw Convention, these solutions ranging from the absence of any compensation for damage
psychic to the compensation of only mental suffering "arising" from injuries
and concluded that the latter approach was the most appropriate.

Some courts have awarded full moral damages only
condition that there is bodily injury whatever it is, and even in the absence of any link
between the two. Thus, in Chendrimada v. Air-India (14), the court refused to
dismiss a request made by the complainant to obtain compensation for mental harm
that he suffered on the grounds that he also alleged bodily harm including nausea
as well as cramps.

However, most courts do not subscribe to this solution and consider that the
non-pecuniary damage must, to be compensated, result from bodily injury caused by the accident, this
which is consistent with the position adopted by the United States Supreme Court in the Eastern judgment
Airlines v. Floyd, and allows victims to be fully compensated, within established limits
by the Warsaw Convention. Indeed, if the psychic damage results from, or is caused by
bodily injury, it will not be fully repaired if the
compensation for the moral aspect of the damage suffered.

It therefore seems necessary to us to distinguish the mental harm resulting from the harm
bodily injury suffered during the accident of mental harm caused directly by the occurrence of
the accident, only the first being repairable.

The question also arose whether the physical manifestations which followed the
psychological disorder suffered can be repaired on the basis of the Warsaw Convention.
Several jurisdictions have refused to award reparations for such damages. Indeed,
Eastern Airlines v. Floyd makes a clear distinction between mental harm and
bodily injury. If the compensation for demonstrations is granted
physical damage suffered, this distinction can no longer be made.

Thus, the Court of Appeal held that the Warsaw Convention authorizes compensation for mental damage insofar as it is caused by bodily injury suffered during the accident (15). But it also considered that physical manifestations of mental disorders such as weight loss or insomnia do not give rise to compensation on the basis of the said convention.

The facts of the case were as follows: Miss Anna Lloyd, a national
American, was the victim of a plane crash of the American Airlines airline,
occurred in 1999 in which 11 people died.

The accident occurred on the runway at Litlle Rock Airport in
Arkansas. This survivor sued American Airlines for damages she
had suffered. Regarding international transport, the Warsaw Convention was in
the applicable species.

During the accident, the victim's leg was punctured and scraped by bolts from
from an airplane seat.

She also suffered trauma to the quadriceps from other seats which are
fell on his knees. She was therefore treated for these various injuries and for having
inhaled smoke, and left the hospital the same day as the accident. The Court of Appeal, in
the case, agreed to compensate for the psychological damage suffered by the victim - post-stress
traumatic, depression - related to physical harm. So in this case,
Miss Lloyd obtained the sum of $ 1.5 million for physical damages and
psychic - otherwise known as "pain and suffering" in the United States - which she suffered, and which
are significantly close to those suffered by the Algerian victim of the disaster that occurred
near Tunis mentioned above.

African courts would be well advised to take into account the analysis made by the courts of the States which are most often brought to hear claims for compensation and which benefit from a wider experience and efficient assessment tools ( psychiatric expert reports documentation…).

***

(1) Article L.321-3 and following
(2) TGI of Paris, May 11, 1984
(3) Civ. 1, February 16, 1982, Bull. Civ. 1982, I, n ° 73, p. 63
(4) Cass. soc. January 27, 1961, Bull. Civ. 1961, IV, n ° 134
(5) Civ. 2, July 1, 2003, n ° 0240.576 FS-P, CPAM de Dordogne c / Ratinaud et a.
(6) Cass. Civ. February 13, 1923
(7) Civ. May 2, 23, 1977
(8) Civ. December 2, 9, 2004, appeal number: 03-15962
(9) Civ. January 2, 5, 1994, appeal number: 92-12185
(10) Eastern Airlines v. Floyd, April 17, 1991, 499 US 530
(11) Eastern Airlines v. King, February 15, 1990, 22 Avi. 17.816
(12) Morgan v. United Air Lines, November 6, 1990, 23 Avi. 17.438
(13) Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 665 North District California, 1994
(14) Chendrimada c. Air-India, 802 F. Supp. 1089, 1092-93 South District New York, 1992
(15) Lloyd v. American Airlines Inc., 291F 3d 503, 8th circuit 2002

Contribution by Kenneth Weissberg to the Working Group of French Foreign Trade Advisers dealing with competing international influences of French law and Anglo-Saxon law: some proposals for legislative adaptations likely to maintain the influence of French law.

Are we really witnessing, as the subject of our study suggests, a
predominance of Anglo-Saxon law over Romano Germanic civil law in the world
contemporary economic?

The answer is uncertain because, as the study by the Council of State of June 2001 notes,
bearing on the international influence of French law, this is undeniable in many
international legal fields, particularly in that of the treaties which constitute the
supreme international legal norm and in that of community law, since within
of Europe we observe a fusion of the legal rules specific to the two systems
competitors of common law and codified civil law.

To tell the truth, we think that, in general, the same economic constraints
result in the application of fairly similar rules in the United States and in Europe. Membership
general to the sacrosanct principle of the contractual will limited only by the requirements of
international public order, makes artificial the idea of any predominance of the rule
of law from one market economy country to another.

However, the fairly trivial observation that the practitioner of international law can make
daily and which justifies a long-term strategy of legal influence,
calling for some adaptations of our legislation and practices to maintain the
the influence of our law is threefold:

1) First observation: Insufficient defense of the French language

English is the commercial language commonly used today by most industrial companies, which means that international contracts are most often written in English.

It is extremely common for a contract between a French company and a company
German or Asian is written and signed in its final version, in English.
Likewise, will it be observed that many large French and German companies have
the choice to adopt English as the language of internal communication systematically
employed within their group and that the European Commission which currently plans
the establishment of an Intranet for the communication of network-related information between
authorities and national courts of the 15 Member States and the Commission plans to
to use for this purpose 'a commonly understood language', in other words English.

This predominance of the English language obviously favors the United States, a nation which has the
largest internal market and a common law legal system attaching great
importance to case law, that is to say the normative nature of precedents.

It obviously favors England as well, which is an almost obligatory passage from
America to Europe, with its own high-tech sectors such as
financial and insurance law. England being part of the European Union,
it permeates European Community law which in turn influences the
European civil law countries.

The consequence of this primacy of the English language is that the documentation fund
used by jurists around the world is very largely in English which brings them
to choose the facility consisting in adopting preexisting formulas presumed to offer the
solutions to their specific needs.

The French legislator sought to limit the perverse effects of this systematic recourse to
models drawn from a foreign law by imposing the use of the French language for the
conclusion of public contracts in France. Article 5 of the law of August 4, 1994, called Law
Toubon, has: Whatever the object and the forms, the contracts to which a person
public law body or a private person performing a public service mission are
parts are written in French.

These provisions do not apply to contracts concluded by a legal person of
public law managing industrial and commercial activities and to be executed
entirely outside the national territory.

The contracts referred to in this article concluded with one or more foreign contracting parties
may include, in addition to writing in French, one or more language versions
foreign can also be authentic.

A party to a contract concluded in violation of the first paragraph may not rely on a
provision in a foreign language which would prejudice the party to which it is opposed.

This law which aims at the defense of the French language protects at the same time the
French law with modesty dictated by economic expediency.

Thus by application of this law, the sale of Canadian aircraft to French Civil Security is
materialized by the conclusion of contracts in French subject to the public procurement code
French and French jurisdictions, while the sale of European aircraft worldwide
realized by the conclusion of a contract in English ultimately subject most often to the law
the forum chosen by the parties to resolve the disputes.

In our opinion, the provisions of the Toubon law should be extended to all contracts
likely to be executed in France, whether concluded between legal persons of
public or private law.

Such a provision, incorporated into the civil code, would complete the privilege of articles 14 and 15
of the Civil Code, which, by providing that the French courts are always competent to
hear disputes in which one of the parties is French, have secured a place
predominant in French law for two centuries.

It should be noted in this regard that the application of Articles 14 and 15 is excluded between the signatories of
the Brussels Convention, but still applies to the United States.

2) Second observation: Shortcomings in our law of evidence

The common law system is adversarial and favors greater ease for parties to
hear the trial and establish proof of their grievances. The discovery procedure (discovery
of evidence), is infinitely more effective than that of pre-constituted evidence, which prevails
with us.

While in the French procedure the testimonies must be produced in writing and are
as difficult to verify as to combat, in the American procedure witnesses are
heard jointly by the parties' lawyers, prior to the trial and their
depositions are recorded in shorthand, in order to be able to later establish the
sincerity and contradictions through the process of cross-examination.

As a result, Anglo-Saxon commercial procedures are never criminal, as there is no
no need to resort to judicial information, led by an investigating judge
repressive to obtain the evidence necessary for the success of his case.

This efficiency of the law of evidence translates into a greater confidence in justice
American than in French justice, in particular delivered to the avatars of 'stays of judgment'
that article 4 of the Code of Criminal Procedure imposes on commercial courts when a
criminal complaint comes, very often delaying, to stop the course of the lawsuit. 80% of
lawsuits in the United States never reach the end of judgment and find their solution
by the transactional route because, in the American procedure, the readiness succeeds the most
often to enlighten the parties on their respective chances of success before it gets too
late and a judgment with heavy financial consequences is not intervened. The American judge
is more of an arbiter of judicial combat than a sage who is asked to say in
who is right and who is right.

In France the trial is too often "a good deal" because, relatively inexpensive (it
is common that a trial costs 10 times more expensive in the USA or England than in France), it
most often results in financially advantageous convictions for the party
failing. The principle of strict concordance of the economic damage suffered and the
allocated allocation, with a statutory interest rate significantly lower than that of the
financial market makes it wise to make a bad trial last as long as possible.

Anglo-Saxon justice, more expensive, since it is up to the lawyers to conduct the trial
at the cost of long depositions generally billed by the hour, does not have the same
reluctance that civil justice to impose substantial compensation and
truly restorative to the unsuccessful party.

This is not lost on international contractors who are still seeking to seize the
most inclined to satisfy their economic objectives.

It would therefore be appropriate to enhance the attractiveness of French courts to modify our law
of evidence to include elements of 'discovery' like 'interrogation
"adopted by the Quebec Code of Civil Procedure and concomitantly with
legally restrict the use of criminal procedure in cases
by removing the stay of proceedings rule and encouraging justice to
dismiss criminal complaints with a glaring commercial basis. It should be
also to modify article 700 of the NCPC in order to impose the reimbursement of costs
actual procedural costs and attorneys' fees to the unsuccessful party.

3) Third observation: Disadvantage of our judicial system and insufficient propagation of French law:

The magistrates and lawyers are in osmosis more in the Anglo-Saxon system than in the
civil system. American judges facilitate the work of the lawyers they support
in their actions, while French judges are wary and perceive them most often
as obstructing the course of justice which they consider to be their responsibility.

As a result, American courts have more favor among lawyers than
French courts suspected of being inclined to administer expeditious justice in which
equity (and sometimes chauvinism) are often disguised under legal reasoning
opportunity.

It would therefore certainly be advisable to review the fundamentals of teaching the profession of
magistrate in France as well as the principles governing the relationships between judges and lawyers.

For example, the duty of sincerity of litigants and their counsel with regard to the
court sanctioned in US law by the rules of "contempt of court": a
party who does not refer to a court order to disclose documents, or who
conceals evidence is subject to heavy penalties including criminal. There is no
nothing similar in French law where the lie is not sanctioned as such.

This is why arbitration is more conducive to the conduct of a quality trial because it allows
parties to agree in the "arbitration agreement" on the procedure they hear
adopt and appoint arbitrators specialized in the matter which concerns them.

French law offers a broad reception to the arbitration procedure, but it still remains
insufficiently used.

With regard to contractual law, the Anglo-Saxon model also has its limits:
considerable length of contracts, due to the fact that their drafters seek to cover
all possible hypotheses, having been the subject of particular case law, is both
indigestible to the uninitiated who are businessmen and civil lawyers accustomed to

general references to the law and to more concise contracts on which only the
points that the law abandons to contractual freedom.
Because contracts of hundreds of pages become the almost exclusive affair of lawyers
experienced in scholarly reading, they tend to inconvenience businessmen
concerned with clarity and not to hinder their negotiations, and that is why we are witnessing
today looking for simplicity for contracts that everyone can read and
understand, and which refer to a law that we know is fair and effective.

However, civil law has the merit of conciseness and Cartesian logic, which deserves to be
known.

The influence of French civil law in the world necessarily requires the effectiveness of its
dissemination and the recommendations of the Council should be implemented in this regard
State, appearing at the conclusion of the aforementioned report.

1) Maintain knowledge of our law by translating the main texts and the main decisions of French law.

We will add to this the recommendation that all law schools and libraries
foreign courts and tribunals applying or providing education in civil law
in French and in particular in emerging countries receive free of charge at
the French state. As are the main French legal reference works, that
are the Jurisclasseur, the Dalloz encyclopedia, as well as the fundamental journals in French:
quarterly legal reviews, Bulletins of the Court of Cassation, Clunet, etc.

2) Modify the content and methods of teaching law in France, which must be internationalized and professionalized, which implies giving the legal professions, in particular lawyers, the means to be more powerful and better armed in the face of international competition.

Cet effort incombe aussi bien aux pouvoirs publics qu’aux barreaux de France.

Exéquatur des jugements entre la France et les États-Unis : rappel des règles régissant l’exequatur en France s’appliquant aux jugements américains, en l’absence de toute Convention signée entre la France et les Etats-Unis.

Gazette du Palais (2002)

Du divorce du couple franco-américain séparé de biens : des solutions pour répondre aux difficultés posées par le divorce d’époux de nationaltés française et américaine en matière de compétence juridictionnelle et de loi applicable à la liquidation du régime matrimonial.