The new international divisions of the Paris Commercial Court and the Paris Court of Appeal, also known as the "International Chambers," will start operating imminently. Under highly innovative rules of procedure (the "Protocoles"), parties appearing before those Chambers are given unprecedented flexibility. Shearman & Sterling proposes an unofficial English translation of each the two Protocoles.1
In the aftermath of Brexit, a number of European Member States have engaged in a race to take over from London as the next European Union primary legal hub. In this context, the French Minister of Justice has worked in collaboration with the Paris Bar to create "an attractive jurisdictional system"2 adapted to contemporary economic and legal international challenges.
On 7 March 2017, the French Minister of Justice asked a special committee ("Haut comité juridique de la place financière de Paris" or HCJP) to propose a court before which foreign commercial parties would be able to submit their disputes irrespective of the law applicable to their contract or the language used therein. Under the supervision of Mr. Guy Canivet (member of the French Constitutional Council), the HCJP issued a Report on 3 May 2017 (available here) with 41 practical proposals for integrating international divisions within the current French judicial system without having to create new specialized jurisdictions.
On that basis, two Protocoles were signed on 7 February 2018 to establish the rules applicable to proceedings before the International Chambers. Both Chambers were inaugurated on 12 February 2018.3
The Rules Applicable to the International Chamber of the Paris Commercial Court
The first new Protocole (available here) sets out the rules of procedure applicable in proceedings before the International Chamber of the Paris Commercial Court (the new name given to the existing International and European Commercial Chamber of the Paris Commercial Court, or "Chambre internationale et de droit européen").4 The International Chamber is composed of ten English-speaking judges (including the International Chamber's President) who will apply either French law or any other rules of foreign law applicable to the merits of the case5 and will abide by the principles detailed below.
The Court's "Placement Chamber" ("chambre de placement") will allocate a dispute to the International Chamber when the dispute is of an economic and commercial nature with an international dimension, and in particular when provisions of European law or of a foreign law (i.e., not French) apply or may apply (Article 1). More specifically, the International Chamber will hear disputes regarding commercial contracts or the termination of commercial relationships; disputes in the field of transport; disputes regarding unfair competition; actions for damages arising from anticompetitive practices; as well as disputes concerning a variety of financial instruments and products. The International Chamber's jurisdiction may also derive from a contractual clause by which parties have agreed to give jurisdiction to Paris Courts.
The procedure before the Paris Commercial Court is oral and all procedural documents (e.g., procedural applications, submissions and orders) must be drafted in French.6 The Protocole nevertheless allows parties to submit exhibits in English without translation, a great novelty in France. Similarly, although oral pleadings will be conducted in French, the use of the English language for foreign parties and their witnesses, experts and counsel is allowed (Article 2). The Protocole also offers various translation options (Article 6). For instance, simultaneous interpretation may be provided for parties, experts and witnesses who speak a language other than French. The interpreter will be designated by the Court but proposed by the party. Time will tell whether such practice will have a significant impact on the cost of the proceedings.7
The Protocole enables the parties and the judge to set up the procedural calendar (Article 3) and offers parties a variety of tools to secure the administration of evidence, including requests for mandatory production of documents held by a party or by a third party (Article 4).8 The Protocole provides that anyone may be heard as a witness, should the Court decide it on its own initiative or agree at the request of a party. Parties may propose witness hearings, which will take place on the basis of the witness' written statement.9 In the event that a witness is unable to appear in Court for legitimate reasons, his or her written declaration will be considered by the judge. However, should the witness have no legitimate reason not to attend, the judge may draw adverse inferences. For this reason, each party shall ensure that the witnesses asked to attend the hearing are served with adequate notice and shall advance any of those witnesses' costs. The rules above also apply to experts.10
The International Court of the Paris Commercial Court will issue its decisions in French, together with an English translation drafted under the clerk's responsibility (Article 7). The costs of the proceedings will include the translation costs.
The Rules Applicable to the New International Chamber of the Paris Court of Appeal
CICAP (the new International Chamber of the Paris Court of Appeal) will be composed of three judges. Because the judges may not have had previous exposure to international commercial disputes or experience adjudicating disputes in English, the HCJP Report recommended the implementation of a specific training program on both technical and linguistic aspects. The Superior Council of Magistracy ("Conseil Supérieur de la Magistrature") is currently discussing the appointment of the magistrates who will compose the new Chamber.11
CICAP's rules of procedure are outlined in a distinct Protocole (available here). However, the rules concerning the language of the procedure (Article 2), translation options (Article 3), and the judicial administration of evidence (Article 5) are similar to those discussed above in the context of the International Chamber of the Paris Commercial Court.
CICAP is now the appellate jurisdiction for decisions made in the first instance by the International Chamber of the Paris Commercial Court (Article 1). CICAP also has jurisdiction to hear disputes that involve international commercial interests,12 including, for instance, appeals and actions to set aside arbitration awards made in Paris,13 appeals against orders denying recognition or enforcement of an international arbitration award made in France14 and appeals against orders granting or denying recognition or enforcement of an international arbitration award made abroad.15
An important feature of the proceedings before CICAP outlined by the Protocole is the availability of a procedural judge ("Conseiller de la mise en état"), whose role is to coordinate pre-trial procedural matters before the case is heard by the Court (Article 4). This includes, holding a preliminary hearing on the judicial administration of evidence during which parties will have the opportunity to discuss, for example, their requests to hear witnesses or experts, requests to rule on evidentiary issues, the procedural calendar, or whether a further hearing is necessary to organize the oral phase of the trial16. Parties may also terminate the procedural phase by concluding an agreement to that end.17
The Court will render a decision in French, accompanied by an "official" English translation (Article 7).
A Transition to Monitor
Now that the two Protocoles have entered into force, the two International Chambers are expected to start operating soon. This reform should offer parties a new and secure venue for the resolution of their disputes within the boundaries of the European Union, and thus with the benefit of the EU's system of mutual recognition of judgments.
The Chambers' work should be closely monitored by a variety of actors in the French legal community to determine whether more foreign parties appear before French Courts and whether such parties come from a civil law or a common law tradition.
To the extent that the International Chambers are successful, it may lead France to establish similar international chambers in other cities, such as Marseille or Le Havre, which typically have a large concentration of disputes relating to shipping and maritime law. France may also consider creating similar Chambers at different jurisdictional levels, for example within the Paris First Instance Court ("Tribunal de Grande Instance de Paris") or the French Supreme Court ("Cour de cassation").
Similarities With International Arbitration
The French Ministry of Justice's commitment to promote Paris as a leading center for international commercial disputes echoes the efforts undertaken seven years ago by the French Government in the context of an increasing competition with London and Geneva. These included the successful lobbying to keep the headquarters of the International Chamber of Commerce in Paris and the enactment of a new pro-arbitration law (available in English here) which made Paris one of the most arbitration-friendly jurisdictions in the world. In fact, many of the innovations brought about by the Protocoles are common practice in arbitration (flexibility with regard to the use of English, simultaneous interpretation, determination of a procedural calendar, rules of evidence, witnesses and experts testimony). The HCJP Report even made further proposals for the creation of new facilities including electronic equipment, IT, recording systems, interpretation and video-conference facilities, and the use of marketing and communication tools including a website and brochures.18 Parties to international arbitration proceedings are both familiar with and accustomed to using many of these sophisticated tools.
Nevertheless, an important difference between international commercial arbitrations and disputes brought before these new International Chambers is that disputes brought before the latter will be public.19
A Global Trend
Overall, this reform promises to provide greater certainty to businesses engaging in economic activities in France and creates a legal environment more amenable to international trade and investment, a trend that other jurisdictions are also seeking to follow.20
Within the European Union, other jurisdictions such as Amsterdam,21 Brussels,22 and Frankfurt23 are discussing the creation of similar chambers for international commercial matters. Over the last 15 years, three other states have reformed their judicial system and created new courts with the ambition to attract international commercial litigation: Dubai opened the Dubai International Financial Center (DIFC) in 2004 and, in 2016 alone, DIFC decided 217 disputes involving, in the aggregate, more than $500 million; Doha inaugurated the Qatar International Court and Dispute Resolution Center (QICDRC) in 2009, which rendered 38 decisions between 2009 and 2017; and more recently in 2015, Singapore launched the Singapore International Commercial Court (SICC) which has heard 9 cases since its creation.
Shearman & Sterling is uniquely positioned to assist its clients in proceedings before the new International Chambers of the Paris Courts. Established in Paris since 1963, the firm has advised and represented clients from around the world in over 800 international disputes. Paris is the hub of Shearman & Sterling's premier International Arbitration team, led by Emmanuel Gaillard, the leading authority in the field.
Should you have any questions, please feel free to contact the authors of the present article.
2 See Preamble of the two Protocoles dated 7 February 2018.
3 See Article 8 of each Protocole. 2018 promises to be a landmark year for the development and reform of the French judiciary, including the forthcoming introduction of a five-year legislative plan and the opening of Paris' new Court of Justice.
4 The International and European Commercial Chamber was created in 2010 to cater to international litigation and hear disputes between French and foreign companies or between foreign companies. It was accepted, for instance, that parties could use English, Italian or Spanish in the course of proceedings and that witnesses could be examined in their native languages, without the use of an interpreter. However, such practice was never formalized into rules and, to date, there have been no instances in which submissions or pleadings before the Court had actually been made in a language other than French (see HCJP Report, p. 29, para. 68.)
5 As provided for in the Preamble to the Protocole.
6 Article 111 of the 1539 Villers-Cotterêts Ordinance.
7 Costs of translation will be determined by the service provider (and not by the Court). Each party will then be required to pay such costs and will then be able to request the Court to order their reimbursement pursuant to Articles 695 2° and 695 9° of the French Civil Code of Procedure. See also Articles 696 and 700 of the French Code of Civil Procedure.
8 This applies to the production of precisely identified categories of documents and which will be examined by the Court pursuant to the rules set by Articles 11 and 138 to 142 of the French Code of civil procedure.
9 Governed by Articles 206 et seq. of the French Code of Civil Procedure.
10 Expert hearings are organized pursuant to Articles 245 and 283 of the French Code of Civil Procedure.
11 See La chambre internationale de commerce parisienne est enfin créée, La Lettre des juristes d'affaires, no.1337, 12 February 2018.
12 In practice, this implies that the Chamber will most likely administer the cases that are currently heard by the "Pôle 1, Chambre 1" and "Pôle 5" divisions of the Paris Court of Appeal.
13 Such recourse must be made within one month following notification of the award, pursuant to Article 1519 of the French Code of Civil Procedure.
14 See Article 1523 of the French Code of Civil Procedure.
15 See Article 1525 of the French Code of Civil Procedure.
16 On this occasion, parties may agree on specific conditions such as simultaneous interpretation, the publicity of debates, how the minutes of hearings including statements from the parties will be recorded, and whether witnesses may be allowed to express themselves in a language other than French.
17 Pursuant to Articles 1544 et seq. of the French Code of Civil Procedure.
18 Annex 06 of the HCJP Report dated 3 May 2017, p. 78.
19 Unless the Court decides that they will take place in the Council Chamber ("Chambre du Conseil") (Article 6).
20 Annex 03 of the HCJP Report dated 3 May 2017 proposes a study of the current and forthcoming international chambers in Dubai, Germany, the Netherlands, Qatar, Singapore and Spain.
21 The establishment of the Netherlands Commercial Court (NCC) dedicated to commercial and international disputes is under way and is expected to launch mid-2018.
22 On 27 October 2017, the Belgian Council of Ministers approved a preliminary draft bill for the creation of the "Brussels International Business Court" (BIBC) dedicated to commercial and international disputes.
23 See for example, Matthias Weller, The Justice Initiative Frankfurt am Main 2017, 31 March 2017.
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