French jurisdiction when assessing evidence in cross-border disputes – more advantages than you think

There is a well-known difference between common law systems and civil law systems when it comes to evidence gathering.

Because of that difference, citizens in common law regimes tend to believe that their jurisdiction is more favourable with regards to evidence gathering as what is known as the discovery process compels parties to communicate the evidence they possess before the merits of the case are discussed.

This article will point out some of the advantages of French evidence gathering under article 145 of the French Civil Procedure Code and present it as an interesting alternative or a complement to common law discovery.

In common law jurisdictions evidence gathering takes place through pre-trial discovery, a process compelling parties to be transparent about the evidence they have in their possession, regardless of whether they intend on producing it to support their claim or defence.

For instance, under the United-States Federal rules of civil procedure, parties are obliged to produce for inspection by the other party every non-privileged document or information in their possession that is relevant to any party’s claim or defence.

As opposed to common law systems, before civil law jurisdictions production of evidence is mainly on a voluntary basis, meaning that there is no mandatory disclosure nor discovery compelling parties to be transparent about the evidence they possess and/or intend on using later in the litigation process. Parties are therefore free to disclose or withhold the documents or information they possess.

Because of the differences presented above, Common law systems appear to be more attractive when it comes to evidence gathering for litigation. Consequently, a party residing, for instance, in the US seeking to gather evidence for litigation is more likely to file a suit before American courts to benefit from the discovery system than before civil law countries, such as French jurisdiction, even where relevant documents may be detained by French entities.

Yet, the French legal system, through article 145 of the French Civil Procedure Code, offers a proceeding allowing parties to gather evidence before filing any lawsuit that presents several advantages that discovery does not.

Article 145 of the French Civil Procedure Code provides that legally-investigative measures may be ordered at the request of any interested party, by petition or ex parte petition, if there is a legitimate reason to preserve or establish evidence before the filing of a lawsuit.

Applicants seeking such measures must demonstrate that:

  • trial on the merits of the case has not been initiated yet;
  • potential dispute that may lead to the filing of a lawsuit on the merits of the case is credible and not doomed to failure;
  • requested documents would be relevant for the potential lawsuit on the merits of the case.

Moreover, for the measures sought to be legally admissible, as required by article 145, the applicant must draft its petition very carefully to ensure that such measures are provided for by the French Civil Procedure Code as well as targeted and precisely described.

One advantage of article 145 of the French Civil Procedure Code was highlighted by the French supreme court (Cour de cassation) in a decision dated 1 March 2017. In a nutshell, the subsidiary of an American firm was opposing an article 145 ex parte order that allowed the seizure of several emails between the group’s in-house lawyers. The subsidiary was arguing that the law applicable to the underlying dispute – which was American law – also had to be applied to article 145 proceedings.

It was further arguing that the bailiff was not allowed to seize exchanges between the group’s in-house lawyers, as such exchanges are protected by legal privilege under American law.

The Court disagreed holding that only French law applies to assess the legality of investigatory measures conducted on the basis of an article 145 order, and that neither business secrecy, nor professional secrecy can obstruct the conduction of such measures, the only obstacle being legal privilege, which, under French law, does not protect exchanges between in-house lawyers.

With that decision the French Supreme Court demonstrated that article 145 proceeding could be far more effective than discovery, by allowing parties seeking for evidence to access documents they cannot access under discovery rules.

A further advantage of article 145 of the French Civil Procedure Code lies in the fact that the proceeding is initiated before any lawsuit is filed. Therefore, it may be used as a way for the applicant to assess the merits of its case before deciding whether to go through a burdensome and expensive discovery process before a common law system jurisdiction.

In a recent decision, involving European Union regulation, the French Supreme Court indeed ruled that French courts have jurisdiction to order investigative measures based on article 145 even where the courts of another state would have jurisdiction to hear the merits of the underlying case, therefore confirming the availability of article 145 proceeding for transnational disputes.

Because of the advantages article 145 proceeding – which has been used broadly in French domestic litigation over the past years – offers, foreign parties seeking to gather evidence for a transnational litigation should take advantage of its availability for such litigation, where the evidence they need may be located in France or may be accessed through a French entity; as such they may very well consider using it either as a complement or an alternative to the discovery process.