On February 7, 2018, a new Chamber dedicated to international commercial disputes was created within the Paris Court of Appeals. With the prospects of Brexit and as part of a strategy aimed at re-positioning France on the international economic scene, Paris is increasing its attractiveness for foreign investors.
Two of the three Decrees adopted on September 29, 2017 in furtherance of the Law for a digital Republic came into force on January 1, 2018. This provides the opportunity to recall the new transparency and fairness requirements imposed on operators of digital platforms.
In two decisions dated July 12, 2017, the Commercial Chamber of the Cour de Cassation (French Supreme Court) ruled that wherever two contracts are interdependent, “the termination of one entails the voidness of the other, thereby excluding the application of the clause of the void contract that provides for the payment of a termination indemnity”.
On the other hand, in a decision dated July 5, 2017, the Commercial Chamber held that “a jurisdiction clause, because of its autonomy from the main contract in which it is inserted, is not affected by the ineffectiveness of the legal instrument”, i.e., in the matter at hand, the jurisdiction clause was not affected by the voidness of the contract in which it was included.
No one can be expected to do the impossible.
By judgment dated September 7, 2015, provisionally enforceable, the Commercial Court of Lyon ordered one of our clients – an asset manager – to produce a number of accounting and financial documents to one of its former clients, subject to a daily penalty of 5,000 euros. Yet, the documents in question had been placed under seizure pursuant to a judicial order, pending a final decision of trial judges on what should be done with these documents.
The opposing counsels claimed that the order of the Commercial Court of Lyon implied for our client the obligation to authorize the lift of the seizure. As our client did not do so, the opponent sued it before the Enforcement Judge to seek the payment of the penalty – more than 1 million euros – and the removal from the list of cases of the appellate proceedings that we had initiated. The request filed by the opposing counsels was dismissed both by the Enforcement Judge and the Case Management Judge of the Court of Appeals of Lyon.
The reform, which enshrines two hundred years of court decisions, amends, re-numbers, deletes and creates numerous articles of the Civil Code of the French derived from the Law of 30 ventôse of year XII under the French revolutionary calendar, which later became the Napoleonic Code and then the Civil Code.
While the French Civil Code abandons some concepts deemed obsolete or inappropriate, such as the notion of cause (within the meaning of French law), it codifies a number of essential case-law developments, e.g. contractual negotiations, unilateral promises, economic duress, theory of unforeseeability, fraudulent concealment, defense to non-performance, etc., with a view to modernizing French law and increasing legal certainty.
In a judgment dated May 3, 2016 , the Court of Appeals of Versailles provided a new illustration of a long established case-law according to which the general terms of a party are contractually binding only if they have been accepted, at the time the contract was formed, by the party against whom such terms are intended to be enforced.
This judgment is reminiscent to a similar decision handed down by the Court of Appeals of Versailles on January 5, 2016 in a case where we represented the party against whom the enforcement of a jurisdiction clause set forth in its own general terms of purchase was sought.
In a decision dated January 26, 2016, the Commercial Chamber of the Cour de Cassation (French Supreme Court) provided clarification on the conditions in which Article L.341-4 of the French Consumer Code should be applied. Specifically, it ruled that “the shares and the current account receivable held by the guarantor in the company that is the beneficiary of the guarantee must be taken into account in the assessment of the guarantor’s assets and income at the time he/she delivered the guarantee”.
To assess the length of an established business relationship and determine the notice period that ought to be applied prior to the effective termination thereof, the length of the business relationship that preceded the sale of a business going concern must not be taken into account wherever it is not demonstrated that the purchaser of such going concern “had the intent to pursue the business relationships initially developed” between the seller and the terminated party.
This is the finding of the Cour de Cassation (French Supreme Court) in a decision rendered on September 15, 2015.
Registration, as a trademark of the title belonging to a profession regulated by public authorities is contrary to public policy provisions. Such a registration can be cancelled. On the other hand, it may not form the subject of an ownership claim.
This is the principle set out by the Cour de cassation (French Supreme Court) in a decision dated December 16, 2014.
In a decision rendered on July 2, 2014, the First Civil Chamber of the Cour de Cassation (French Supreme Court) confirmed its position and reaffirmed the principle according to which “the perpetrator of a damage must remedy all the consequences and the injured party is under no obligation to mitigate his/her loss in the interests of the tortfeasor“, including when the loss is economic in nature.
The Cour de Cassation thus opposes the majority of French legal writers who, for many years, have been urging French lawmakers and courts to adopt the so-called “duty to mitigate damages” Anglo-American concept.
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