France: Litigation

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This country-specific Q&A provides an overview of Litigation in France.

It will cover methods of resolving disputes, details of the process and the proceedings, the court and their jurisdiction, costs and appeals and opinions on future developments.

This Q&A is part of the global guide to Litigation. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/litigation-dispute-resolution/

  1. What are the main methods of resolving commercial disputes?

    In France, there are three main methods of resolving commercial disputes: litigation, arbitration and alternative dispute resolution methods.

    Litigation
    As regards litigation, France’s court system is organised in a three-tier structure, composed of first instance courts, Courts of Appeal and the French Supreme court (Cour de cassation) (see question 3).

    Arbitration
    Commercial disputes in France are often resolved by way of arbitration.

    The development of arbitration as a method for resolving commercial disputes is notably due to the arbitration-friendly French regime and to the fact that the International Chamber of Commerce has its headquarters in France.

    France is also a party to the 1958 United Nations Convention on the recognition and enforcement of foreign arbitral awards.

    Alternative dispute resolution methods
    The French Code of Civil Procedure provides three main alternative dispute resolution methods:

    • mediation, which is conducted by extra-judicial mediators, which are either chosen by the parties or appointed by the judge with the parties’ consent;
    • conciliation, which is conducted by a judicial conciliator; and
    • participatory procedure (procedure participative) which, in contrast to mediation and conciliation, does not involve a third party. If the agreement to engage in a participatory procedure is entered into by the parties before any dispute is brought before the court, any judicial claim will be declared inadmissible as long as the procedure is ongoing, except for provisional or conservatory measures in case of urgent matters.

    A new law “of modernisation of justice for the 21st century” has widened the scope of the participatory procedure, which can now be entered into pending the outcome of trial. In this case, the dispute will be withdrawn from the court’s docket.

  2. What are the main procedural rules governing commercial litigation?

    The French Code of Civil Procedure is the main set of rules which apply to commercial litigation in general. This Code contains a set of rules which are applicable to all civil and commercial proceedings in general, as well as a section which specifically deals with commercial litigation.

    The procedural system for commercial litigation is mainly adversarial.

    Before the Commercial Court, the procedure is oral. The parties are not compelled to file written submissions with the Court, but may do so if they wish (and most often do in practice).

    Before the Commercial Court, the parties may defend themselves, but may also be assisted or represented by any person of their choice. In practice, parties are generally represented by lawyers (avocats). Representation by a lawyer is mandatory before the Court of Appeal.

  3. What is the structure and organisation of local courts dealing with commercial claims? What is the final court of appeal?

    In first instance, the dispute can be brought either before civil courts (Tribunal d’instance and Tribunal de grande instance) or before commercial courts (Tribunal de commerce):

    • the Tribunal de grande instance has jurisdiction to hear civil claims where the claim value exceeds 10.000€ and when jurisdiction has not been expressly conferred to another court. It also has exclusive jurisdiction, irrespective of the amount of the claim, over certain types of disputes (for instance, intellectual property, enforcement of foreign judgments).
      In the regions where there are no commercial courts, the commercial chamber (in Alsace-Moselle) or mixed chamber (in the French overseas departments and territories) of the Tribunal de grande instance serve as a commercial court;
    • the Tribunal d’instance has jurisdiction to hear civil claims up to but not exceeding 10.000€ and other civil actions over which it has exclusive jurisdiction (such as attachment orders seizing wages or salaries (saisies des rémunérations du travail), elections, residential property leases, etc.);
    • the Tribunal de commerce has jurisdiction to hear disputes between traders (commerçants, defined as those who perform commercial acts as their usual activity), credit institutions, disputes regarding commercial companies and disputes concerning commercial deeds (such as promissory notes and bills of exchange) between parties of any kind.

    The Commercial Court also has jurisdiction over insolvency proceedings.

    Commercial courts are composed solely of non-professional judges (juges consulaires), essentially traders or managers of commercial companies, elected by current or former judges of the relevant Commercial Court.

    In theory, the case is decided by a panel of three judges. In practice, however, a single judge often hears the case, unless either party requests that the case is heard by a full panel of judges.

    The Courts of Appeal hear appeals on factual and legal issues lodged against all judgments which have been rendered by the lower courts. They are composed of professional magistrates.

    The Commercial Court of Paris and the Court of Appeal of Paris have an international division, which has jurisdiction over all cases involving the interests of international trade. The main features of these international chambers are:

    • the possibility for parties, experts and foreign counsel entitled to plead before French courts to speak in English (although this is possible in theory, witnesses are seldom summoned and heard by French courts);
    • the possibility of submitting exhibits in English without any translation;
    • English-speaking judges, familiar with international law;
    • decisions rendered in French and translated into English.

    The French Supreme Court (Cour de cassation), sitting in Paris, is the highest court in civil and commercial disputes. It reviews the judgments rendered by the lower courts on points of law only.

  4. How long does it typically take from commencing proceedings to get to trial?

    For disputes which are brought before the Commercial Court, the writ of summons (i) has to be served at least 15 days before the first hearing (which will only be a pre-trial conference) and (ii) has to be filed with the court registry no later than 8 days before the hearing.

    It takes approximately 10 to 18 months for a case to be heard on the merits.

    By way of exception, expedited proceedings on the merits can be initiated by way of writ of summons served on short notice (assignation à jour fixe or assignation à bref délais, depending on the relevant court). Such short notice summons may only be served with the authorisation of the Court, which may be sought by way of ex-parte application. Expedited proceedings generally take 2 to 4 months.

    Summary proceedings concern urgent matters or matters where the facts cannot seriously be disputed are faster. In this case, a court ruling does not decide the case on the merits, but has only a provisional res judicata. In case of summary proceedings, the dispute is usually treated within a few weeks or months (sometimes a few days, when it is particularly urgent).

  5. Are hearings held in public and are documents filed at court available to the public? Are there any exceptions?

    Hearings are held in public except in cases where the law requires that they take place in chambers (chambre du conseil). French law provides, inter alia, that the court may decide to hear the case in chambers, when:

    • a public hearing is likely to infringe the parties’ right to privacy;
    • a public hearing is likely to interfere with the serenity of the judicial debates; or
    • all the parties so request.

    In practice, it is very rare for the court to depart from the publicity.
    Documents which are submitted to the court, such as submissions and exhibits, are not available to the public, but the parties’ pleas are usually set out (at least, in a summary way) in the public judgment.

  6. What, if any, are the relevant limitation periods?

    Article 2224 of the French Civil Code states that personal actions or movable rights of action are time-barred after 5 years from the day on which the holder of a right knew or ought to have known the facts enabling him to exercise his right.

    Parties can, however, partially derogate from the legal time limitation period by way of a standstill agreement, whereby the parties can agree to suspend or extend the limitation period.

    Other circumstances may also suspend(1) the limitation period, such as:

    • conciliation and mediation proceedings, as well as participatory proceedings;
    • the impossibility to bring a legal action as a result of an impediment resulting from the law, an agreement or force majeure; and
    • when a court grants a request for an investigative measure submitted prior to any trial.

    Limitation periods are interrupted(2) by the commencement of proceedings (whether on the merits or to seek interim measures) up to the end of the proceedings.

    The postponement, suspension or interruption of the limitation period may not extend the limitation period beyond 20 years from the date on which the right arises.

    (1) Time accrued before the suspension of the limitation period is not reset when the cause of suspension ends.
    (2) Which means that a new 5-year limitation period will start running when the cause of interruption ceases to exists, irrespective of the time accrued before the interruption.

  7. What, if any, are the pre-action conduct requirements in your jurisdiction and what, if any, are the consequences of non-compliance?

    Pursuant to Decree No. 2015-282 dated 11 March 2015, the claimant has to mention in the writ of summons which steps have been undertaken to try to resolve the dispute amicably prior to initiating judicial proceedings, unless there is a legitimate reason relating to the urgency or the matter in question.

    If the claimant fails to demonstrate such attempt, the court may appoint a mediator or a conciliator; this will generally slow down the procedure.

    If the parties have agreed on a multi-tier dispute resolution clause, providing for a mediation or conciliation phase prior to any judicial claim before the court, such clause will be binding on the court. If an action is brought in breach of such clause, it will constitute grounds for inadmissibility of the claim.

    There is no principle of mitigation of damages under French law, i.e. the claimant does not have to take reasonable actions to avoid additional injury or loss.

  8. How are commercial proceedings commenced? Is service necessary and, if so, is this done by the court (or its agent) or by the parties?

    Pursuant to Decree No. 2015-282 dated 11 March 2015, the claimant has to mention in the writ of summons which steps have been undertaken to try to resolve the dispute amicably prior to initiating judicial proceedings, unless there is a legitimate reason relating to the urgency or the matter in question.

    If the claimant fails to demonstrate such attempt, the court may appoint a mediator or a conciliator; this will generally slow down the procedure.

    If the parties have agreed on a multi-tier dispute resolution clause, providing for a mediation or conciliation phase prior to any judicial claim before the court, such clause will be binding on the court. If an action is brought in breach of such clause, it will constitute grounds for inadmissibility of the claim.

    There is no principle of mitigation of damages under French law, i.e. the claimant does not have to take reasonable actions to avoid additional injury or loss.

  9. How does the court determine whether it has jurisdiction over a claim?

    Once a claim is filed, French courts verify ex officio whether they have international, territorial (as to the place) and subject-matter jurisdiction.

    International jurisdiction
    French courts will primarily determine whether they have jurisdiction pursuant to the EU Regulation no. 1215/2012 dated 12 December 2012 (“Brussels I” Regulation recast), which applies to the European member States’ courts’ jurisdiction in relation to civil and commercial matters, when the defendant resides in a member state. Most commercial disputes fall within the scope of the Brussels I Regulation.

    The basic jurisdiction rules under the Brussels I Regulation are similar to the French domestic rules. When there is a valid jurisdiction clause, French courts must apply it. In the absence of such clause, the general rule is that the courts of the country where the defendant resides have jurisdiction. The Brussels I Regulation also provides special jurisdiction rules, which apply to contractual and tortious claims and offer an additional option to the claimant:

    • for contractual obligations, the courts having jurisdiction are the courts of the country of the place of performance of the obligation in question (i.e. for a sale, the place of delivery; for a provision of service, the place of provision);
    • for non-contractual claims, the courts of the country where the harmful event occurred have jurisdiction.

    In specific subjects, such as contracts of intermediaries, French courts may apply international conventions, which provide for special jurisdiction rules.

    When a dispute falls outside the scope of the Brussels I Regulation and the international conventions, French courts determine whether they have jurisdiction pursuant to the rules of the French Code of Civil Procedure (see below).

    If French courts do not have jurisdiction on the basis of the rules of the French Code of Civil Procedure, the French Civil Code provides for a special forum based on the nationality of the parties (i.e. French courts generally have jurisdiction over disputes involving a French party).

    Territorial jurisdiction
    Jurisdiction over purely domestic claims is governed by the rules of the French Code of Civil Procedure.

    As a principle, in commercial disputes, parties are entitled to choose the courts through a jurisdiction clause. Such a clause is valid provided that the parties are traders and that the clause appears explicitly in the parties’ convention.

    In the absence of such jurisdiction clause, the courts of the place where the defendant lives have jurisdiction.

    There are special rules applying to contractual and tortious claims.

    In some specific subject-matters, only the courts sitting in certain cities have jurisdiction. For instance, disputes relating to anti-competitive practice can only be heard by the Commercial Courts of Bordeaux, Fort-de-France, Lille, Lyon, Marseille, Nancy, Paris and Rennes. All appeals are heard by the Paris Court of Appeal.

    Subject-matter jurisdiction

    • The Commercial Court has jurisdiction to hear disputes between traders (defined as those who perform commercial acts as their usual activity), credit institutions, disputes regarding commercial companies and disputes concerning commercial deeds (such as promissory notes and bills of exchange) between parties of any kind. The Commercial Court also has jurisdiction over proceedings relating to economic difficulties of commercial companies.
    • When one of the parties is not a trader, civil courts (Tribunal d’instance and Tribunal de grande instance) normally have jurisdiction.
    • In principle, parties may not derogate from the rules of material jurisdiction in the context of a domestic dispute. By exception, traders may opt for civil courts even if Commercial Courts normally have jurisdiction.
  10. How does the court determine what law will apply to the claims?

    The applicable law is determined by application of (i) the EU Regulation no. 593/2008 (Rome I) on the law applicable to contractual obligation, or (ii) the EU Regulation no. 867/2007 (Rome II) on the law applicable to non-contractual obligations.

    Regarding contractual obligations:

    • the applicable law is in principle the law chosen by the parties;
    • in the absence of such choice, Article 4 of the Rome I Regulation provides a set of rules relating to specific contracts, aiming at determining the applicable law. For instance, a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence; a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence. If the contract at stake does not fall within those which are expressly specified, the applicable law is the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence;
    • Rome I Regulation also contains special rules aimed at protecting the weaker parties (e.g. consumers, workers, policy holders).

    Regarding non-contractual obligations:

    • the applicable law is in principle the law of the country where the harm was incurred by the victim;
    • parties may nonetheless choose the applicable law, subject to some restrictions: the agreement must be entered into after the occurrence of the event giving rise to the damage. Where all parties are pursuing a commercial activity, the applicable law may be chosen by an agreement freely negotiated before the event giving rise to the damage;
    • Rome II Regulation also contains special conflict of law rules regarding, for example, environmental damages and unfair competition.

    In general, French courts will set aside the law determined by application of the conflict of law rules when the concrete application of that law is contrary to French public policy. Besides, by derogation to the traditional conflict of law rules, French law may apply as overriding mandatory provisions (e.g. labour law protecting workers).

    In certain specific subjects, such as traffic accidents and product liability, French courts may also apply international conventions, which provide for special conflict of law rules.

    In the unlikely event where neither the Rome I and II Regulations, nor any international convention applies, French courts will apply domestic conflict of law rules, which have mainly been set out by case law. For contractual obligations, the principle is the application of the law chosen by the parties. For non-contractual obligations, the applicable law is normally the law of the country where the damage was caused or incurred, whichever has the closest link with the situation.

  11. In what circumstances, if any, can claims be disposed of without a full trial?

    Parties may raise procedural objections (e.g. lack of jurisdiction – which must be raised in limine litis, i.e. before any arguments on the merits – inadmissibility or procedural irregularity) before their defence on the merits. A preliminary hearing on these issues can be requested before arguments on the merits are examined, which may allow those claims to be disposed of at a preliminary stage.

    However, the court may decide that the procedural issues and the arguments on the merits of the case will be examined together.

  12. What, if any, are the main types of interim remedies available?

    Litigants may apply for interim measures by way of summary proceedings (référé) or ex parte proceedings (requête). In either case, proceedings are faster than proceedings on the merits and the decision of the Court will be provisional. Interim measures are available in the following cases:

    • in case of urgency, when the measure cannot be seriously challenged, or is justified by the existence of a dispute – e.g. appointment of a provisional administrator when a company is blocked due to a conflict between the shareholders;
    • to prevent imminent harm or to stop manifestly illegal nuisance – e.g. construction of a building without authorisation;
    • for evidentiary purposes, when there is a legitimate reason to preserve or to establish, before proceedings on the merits, the evidence of the facts upon which the resolution of the dispute depends. Evidentiary measures are subject to the same exceptions (e.g. privilege) as disclosure of documents (see question No. 14);
    • to protect a creditor prior to the recovery of its claim. These ‘precautionary measures’ (mesures conservatoires) prevent the debtor from disposing of its assets.

    Some interim measures may also be obtained without giving prior notice to the defendant:

    • when the law allows it. For instance, Article 145 of the French Code of Civil Procedure allows the applicant to request an evidentiary measure by way of ex parte proceedings; or
    • when circumstances demand non-adversarial proceedings (e.g. search & seizure orders, where an element of surprise is necessary to avoid the destruction of evidence).

    On 18 January 2017, EU Regulation no. 655/2014 of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters entered into force. This Regulation introduces a new procedure enabling a creditor to obtain a precautionary measure over bank accounts in a member state and to have this measure automatically recognised and enforced – without any specific procedure – in other member states.

  13. After a claim has been commenced, what written documents must (or can) the parties submit and what is the usual timetable?

    The procedure before the Commercial Court is oral.

    Nevertheless, in practical terms, parties often file written submissions to support their claims, together with any relevant exhibits. A party which refers to a document in its submissions must disclose such document to any other party to the proceedings. When a party is a company, Commercial Courts almost always request that a certificate of incorporation be filed with the submissions.

    The supervising judge (juge rapporteur) – who ensures the management of the proceedings – sets procedural hearings during which the parties either file their submissions and evidence or request postponements to get additional time to prepare their defence.

    Each party usually files two sets of submissions, except where further submissions are required, for example in the event of an incidental plea, of a third-party intervention or where the matter is complex.

    As regards the usual timetable, procedural hearings before the Paris Commercial Court are generally held every four weeks. However, several postponements may be granted before an injunction to file submissions is issued by the Court to compel a party to file its submissions.
    The date for the trial hearing is set by the supervising judge once the parties have exchanged all relevant arguments in their pleadings.

  14. What, if any, are the rules for disclosure of documents? Are there any exceptions (e.g. on grounds of privilege, confidentiality or public interest)?

    Parties may decide to produce documents to support their claims. A party who refers to a document must disclose it to any other party to the proceedings.

    There is no discovery process under French law.

    Where a party intends to refer to a document that it does not have, it may, however, ask the court to order another party or a third party to disclose the document. The court’s order may also impose a daily penalty (astreinte) until the document is disclosed. Disclosure of a document may be denied where a legitimate impediment (e.g. professional secrecy such as legal privilege) is raised to oppose the request.

    Where there is a legitimate reason to preserve or establish, prior to any legal proceedings, the evidence of the facts on which the outcome of a dispute may depend, any legally permissible preparatory enquiries can be ordered at the request of any interested party (e.g. search & seizure orders).

  15. How is witness evidence dealt with in commercial litigation (and, in particular, do witnesses give oral and/or written evidence and what, if any, are the rules on cross-examination)? Are depositions permitted?

    In theory, witness evidence is admissible before French courts and may be requested by them.

    In practice, witnesses are almost never summoned and heard by the Court and the parties base their claim on written documentary evidence, without resorting to oral evidence.

  16. Is expert evidence permitted and how is it dealt with? Is the expert appointed by the court or the parties and what duties do they owe?

    Expert evidence is admissible before French courts. A distinction must, however, be made between private experts and judicial experts.

    Parties may unilaterally appoint a private expert to analyse the technical aspects of the dispute. Although private expert evidence is not expressly provided for in the French Code of Civil Procedure, French courts admit it as an element of proof. Private expert reports have, in practice, less weight than reports issued in the context of a Court-ordered expert mission, mostly because private expert missions are not adversarial.

    Court-ordered expert missions are governed by the French Code of Civil Procedure. Their main features are the following:

    • the judicial expert is appointed by the court from a list of court-approved experts;
    • the court’s decision must state the reasons why the expert has been appointed and describe the expert’s mission. The court’s decision may be challenged by way of appeal;
    • the experts only deal with technical aspects of the dispute and never express an opinion on a point of law;
    • expert mission is adversarial (i.e. parties are entitled to make observations and requests that the expert must take into consideration);
    • judicial expert’s findings and opinions are recorded in a written report;
    • courts are not bound by that report;
    • expenses related to the expert mission are usually supported by the claimant but, in the end, may be borne by the unsuccessful party.

    Beside the Court-appointed experts, French courts may also appoint various technicians pursuant to Articles 232 et seq. of the French Code of Civil Procedure to clarify the technical details of the case.

  17. Can final and interim decisions be appealed? If so, to which court(s) and within what timescale?

    A distinction has to be drawn between judgments on the merits, judgments on interim measures and ex-parte orders.

    Judgments on the merits rendered by the Commercial Court can be appealed if the amount in dispute exceeds 4,000 euros. If it is below 4,000 euros, no appeal may be filed against the first court’s decision. Such decisions may, however, be challenged before the Supreme Court (Cour de cassation). It must, however, be noted that the Supreme Court will review the judgment only on points of law.

    Specific rules apply to interim measures and ex-parte decisions:

    • judgments that order an investigatory measure may be appealed only once the judgment on the merits has been rendered. However, when the decision orders an investigatory measure while also ruling partly on the merits, an appeal may immediately be lodged against such decision;
    • regarding ex parte decisions (ordonnance sur requête): (i) if the request is granted, the defendant may apply for the order to be lifted (référé-rétractation); (ii) if the request is denied, the claimant may challenge the order by way of appeal.
  18. What are the rules governing enforcement of foreign judgments?

    The enforcement procedure differs according to the country the foreign judgment originates from.

    If the judgment originates from another EU member state, it benefits from the intra-EU facilitated process of enforcement. Pursuant to Article 36 and 39 of the Brussels I Regulation recast, a judgment from a member state is automatically recognised and enforceable in all other member states without any special procedure being required (e.g. no need for an exequatur). French courts may only refuse to enforce an EU member state’s judgment on very limited grounds, such as a manifest violation of French public policy (Brussels I Regulation recast, Articles 45 and 46).

    If the judgment originates from a foreign country which has entered into an international convention with France, such convention may provide for a specific enforcement procedure.
    If neither Brussels I Regulation recast, nor any international convention applies, the enforcement procedure is governed by the domestic rules of recognition and enforcement of foreign judgments. In this case, enforcement proceedings must be brought before the Tribunal de grande instance. The following conditions must be satisfied:

    • the subject-matter of the foreign judgment must be sufficiently or substantially connected with the jurisdiction of the court that rendered it, the choice of the foreign court must not be fraudulent and French courts must not have exclusive jurisdiction over the matter;
    • the judgment must not be contrary to French international public policy, both pertaining to the merits and to the procedure of the case;
    • the judgment must not conflict with a French judgment or a foreign judgment which has become effective in France and there are no proceedings pending before French courts at the time enforcement is sought and having the same or similar subject-matter as the foreign judgment.
  19. Can the costs of litigation (e.g. court costs, as well as the parties’ costs of instructing lawyers, experts and other professionals) be recovered from the other side?

    Pursuant to Article 695 of the French Code of Civil Procedure, the court’s costs are the expenses which strictly relate to the judicial acts and procedure. They include, for instance, taxes and administrative fees, translation fees where necessary, remuneration of technicians, legal aid.

    These costs are usually very low and born by the unsuccessful party. However, the judge can decide that the successful party will bear the whole or part of the court’s costs.

    Article 700 of the French Code of Civil Procedure governs the allocation of all the costs which do not fall within the scope of the aforementioned court’s costs (i.e. mainly the lawyer’s fees, except for legal aid). In this respect, the courts have a very wide discretion and may order that each party bear its own costs, whatever the outcome of the dispute. In practice, it is very rare for a court to award more than 100.000/150.000€. In addition to lawyers’ fees, the scope of Article 700 includes expenses relating to private experts, bailiff’s reports, legal advice, etc.

  20. What, if any, are the collective redress (e.g. class action) mechanisms?

    The following types of class actions are provided by French law:

    • consumer protection;
    • health product liability;
    • environment;
    • protection of personal data;
    • discrimination.

    All class actions currently available under French procedural law are subject to an opt-in mechanism.

    In addition, French law provides for five other types of collective actions:

    • actions for the joint representation of consumers (action en représentation conjointe des consommateurs);
    • actions brought in the collective interests of consumers (action exercée dans l’intérêt collectif des consommateurs);
    • defence leagues (ligues de défense);
    • in defence of ‘important causes’. Specific regulations allow several associations to bring an action before civil or criminal courts in order to obtain damages, where a criminal offence has been committed (e.g. environmental protection associations);
    • with regard to competition offences, such as price fixing and unfair competition, Article L490-10 of the French Commercial Code permits professional organisations to initiate proceedings in a civil or commercial court for harm caused directly or indirectly to the collective interests of the profession or sector which it represents.
  21. What, if any, are the mechanisms for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings?

    Joinder

    Joinder of third parties to ongoing proceedings may result from:

    • a ‘voluntary intervention’ requested by the third party. The voluntary intervention is considered as ‘principal’ when the third party makes a claim; it is ‘ancillary’ when the third party merely endorses another party’s claim. The voluntary intervention must be requested by way of submissions before the court;
    • a ‘forced intervention’ requested by the parties to the ongoing proceedings. The forced intervention allows the parties to make claims against a third party which was not initially party to the proceedings. The forced intervention must take the form of a writ of summons against the third party.

    Consolidation
    A court may, of its own accord or at the parties’ request, consolidate two sets of pending proceedings, provided that there is a link between the disputes and that it is in the interest of a proper administration of justice.

    Besides, European and French rules apply where several courts are seized of the same or related dispute(s). When the same dispute is pending before two different courts (lis pendens):

    • if both courts are in France, the second court seized must, of its own motion or at the request of a party, decline jurisdiction;
    • if both courts are in the European Union, the second court seized must, of its own motion, stay its proceedings until the first seized court has decided whether it has jurisdiction.

    Where two related disputes are pending before two different courts:

    • if both courts are in France, a court may, upon request of a party, decide to decline jurisdiction in favour of the other court;
    • if both courts are in the EU, the second court seized may stay its proceedings.
  22. Are third parties allowed to fund litigation? If so, are there any restrictions on this and can third party funders be made liable for the costs incurred by the other side?

    There are no French rules governing third party funding. As a principle, however, a party to judicial proceedings is not allowed to act on behalf of an unidentified third party.

    Two methods of third-party funding are admissible under French law:

    • French civil courts have, on several occasions, held that the assignment of the right to bring a claim– as principal or as accessory of the assignment of the claim itself – is allowed under certain circumstances. By way of exception, claims which are exclusively ‘attached to the individual’ (e.g. the right to claim damages in the context of criminal proceedings) and claims based on a moral damage cannot be assigned.
    • an agent may bring a legal action on behalf of a principal provided that (i) he is granted a special power of attorney identifying specifically the proceedings in the context of which he is appointed and (ii) the claimant (agent) expressly indicates in all procedural documents that he is acting on behalf of one or several constituents and provide their identity.

    Further (opinion-based) questions on the litigation process

    What, in your opinion…

    1. Is the main advantage and the main disadvantage of litigating international commercial disputes in your jurisdiction?
    2. The main advantages of litigating international commercial disputes in France can be summarized as follows:

      • an international chamber has recently been created within the Paris Commercial Court and the Paris Court of Appeal. The English language can be used during the proceedings. Even if pleadings are still drafted in French, documents in English may be filed without translation and judgments are translated under the responsibility of the court's registrar. In addition, if the proceedings are to be held in French, simultaneous translation by a translator appointed by the court may be arranged. Parties appearing before the court may speak English if they so wish;
      • there is no disclosure process under French law, thereby avoiding a burdensome procedure;
      • before the Commercial Court, the procedure is oral; this offers a certain flexibility;
      • the hearings are quite short (they rarely exceed a couple of hours at most).

      Disadvantages can be found in that there is usually no hearing of expert witnesses and no witness cross-examination.

    3. Is the most likely growth area for disputes in your jurisdiction for the next 5 years?
    4. A trend in recent years has been the increasing number of disputes in the context of follow-on actions.

      Where regulators such as the French financial market authority (Autorité des Marchés Financiers), the French Competition Authority (Autorité de la Concurrence) or the European Commission find companies liable for their irregular behaviour, third parties which believe that they incurred harm as a result of this behaviour may take legal action.

    5. Will be the impact of technology on commercial litigation in your jurisdiction in the next 5 years?
    6. A law dated 7 October 2016 provides that all court decisions will be made available to the public in the years to come. This law should now grant access to approximately 4 million decisions rendered each year.

      Some ‘Legaltechs’ already intend to take advantage of this novelty to calculate – by using an algorithm – the prospects of success or the amount of compensation that can be expected in a particular court. Law firms and courts themselves have already started to use these new tools. This will probably lead to a change in the litigation strategy.

  23. What, in your opinion, is the main advantage and the main disadvantage of litigating international commercial disputes?

    The main advantages of litigating international commercial disputes in France can be summarized as follows:

    • an international chamber has recently been created within the Paris Commercial Court and the Paris Court of Appeal. The English language can be used during the proceedings. Even if pleadings are still drafted in French, documents in English may be filed without translation and judgments are translated under the responsibility of the court's registrar. In addition, if the proceedings are to be held in French, simultaneous translation by a translator appointed by the court may be arranged. Parties appearing before the court may speak English if they so wish;
    • there is no disclosure process under French law, thereby avoiding a burdensome procedure;
    • before the Commercial Court, the procedure is oral; this offers a certain flexibility;
    • the hearings are quite short (they rarely exceed a couple of hours at most).

    Disadvantages can be found in that there is usually no hearing of expert witnesses and no witness cross-examination.

  24. What, in your opinion, is the most likely growth area for disputes for the next five years?

    A trend in recent years has been the increasing number of disputes in the context of follow-on actions.

    Where regulators such as the French financial market authority (Autorité des Marchés Financiers), the French Competition Authority (Autorité de la Concurrence) or the European Commission find companies liable for their irregular behaviour, third parties which believe that they incurred harm as a result of this behaviour may take legal action.

  25. What, in your opinion, will be the impact of technology on commercial litigation in the next five years?

    A law dated 7 October 2016 provides that all court decisions will be made available to the public in the years to come. This law should now grant access to approximately 4 million decisions rendered each year.

    Some ‘Legaltechs’ already intend to take advantage of this novelty to calculate – by using an algorithm – the prospects of success or the amount of compensation that can be expected in a particular court. Law firms and courts themselves have already started to use these new tools. This will probably lead to a change in the litigation strategy.