New jurisdiction clause in your international contracts: how to improve the quality and reduce the costs of your procedures? (Fr)
Last wheel of the carriage in negotiations, the clause conferring jurisdiction in the event of future litigation is often negotiated at the last moment. By compromise or by default, an arbitration clause is then frequently inserted.
However, arbitration procedures are not always the most adequate, nor the easiest to implement. The time spent agreeing on available arbitrators is significant and the costs incurred in submitting to arbitration proceedings can be considerable and disproportionate to the issues at stake, thereby limiting access to justice. In addition, the rules of international arbitration allow only in a few limited situations to make an action for annulment, thus leaving the litigant powerless in the event of an arbitral decision erroneous in law.
However, a new alternative has opened up for the negotiator of international contracts since 2018: insert a clause conferring jurisdiction for the benefit of the international chambers of the Paris Commercial Court and the Paris Court of Appeal.
The judges of these courts are not only bilingual but also have a double legal culture: they have most often studied in France, the United States, or England and have often lived and worked abroad. As for the International Chamber of the Court of Appeal, even the jurists and the clerks have a double French and Anglo-Saxon legal culture.
The procedure gives an important place to the use of English: the documents in English do not have to be translated, the parties, the experts, the witnesses and even in certain cases, the lawyers can speak in English, without translation.
Above all, regardless of the language, the procedure used allows a fair share of the study of the facts as in an arbitration procedure and much more than in a traditional French procedure since several days may be allocated to hear each of the parties, but also their witnesses or experts, which will allow the magistrate to question them, test their credibility and ask questions during the oral hearings.
The procedural calendar is fixed in advance and ensures the predictability of the procedure: four physical procedural hearings are planned to supervise the procedure and plan the dates for the hearings of the parties and witnesses, the pleadings and the date of judgment.
The decisions are rendered in French with an English translation prepared by the registry. These decisions, in bilingual version, can be easily executed anywhere in Europe without resorting to an additional exequatur procedure.
Another advantage, the debates, can - if both parties wish - to take place behind closed doors like what happens in arbitration. The only difference being the publicity of the decision.
The double degree of jurisdiction also makes it possible to encourage the first judge to exercise rigor in his legal reasoning to avoid lending the flank to a remedy.
Finally, while in France, it is traditionally granted very low compensation for legal costs and lawyers, the new international chambers of the Court of Appeal show the will to allocate articles 700 of the procedural code civil respectful of the costs and fees actually incurred by the parties.
To date, the first decisions rendered by the International Chamber of the Paris Court of Appeal concern, in particular, the companies Thales, Fedex, Unilever, Eloi, Consar.
In the spring of 2020 will appear, the publication of a practical guide published by a joint effort of the Paris bar and the Commercial Court and the Paris appeal court, which with the experience of two years of practice, will give more details on the operation of said chambers.
By Maître Audrey Weissberg, Lawyer at the Paris and Quebec Bars