To prevent the abusive and imminent enforcement of a first demand guarantee, Soulier AARPI, represented by Mrs. Catherine Nommick, Ms. Flore Foyatier and Ms. Isabelle Cottin, obtained in less than a week an injunction from the President of the Commercial Court of Paris who ordered the bank to suspend the payment of the funds under the guarantee pending a decision of the summary judge, and then, in less than a month, a decision of the summary judge who acknowledged that the request for enforcement of the guarantee was obviously abusive, and enjoined the bank not to grant such a request.
This lawsuit – managed in a situation of urgency with a successful outcome – provides the opportunity to recall the circumstances and procedural means in/by which the request for enforcement of a first demand guarantee can be successfully challenged.
Ordinance n°2016-131 of February 10, 2016 for the reform of contract law, the general regime of obligations and proof of obligations came into force on October 1, 2016. This reform was primarily aimed at codifying established and settled case-law principles but it also introduced new legal concepts and obligations.
Law n° 2018-287 dated April 20, 2018 – which ratifies the aforementioned Ordinance – was published in the Official Journal on April 21, 2018. This Law does not only ratify the February 10, 2016 Ordinance. It also brings about a number of changes. Some of them are quite significant, others without any real impact. Most of these changes will become effective on October 1, 2018 but some others will apply retroactively as from October 1, 2016.
Sexual offenses have rocketed into the limelight in recent months. The societal phenomenon #balancetonporc (#balancetonporc is the French equivalent of #MeToo) has led Marlène Schiappa, French Minister of State for Gender Equality, to work on a draft bill to combat sexual and sexist behaviors.
With the strengthening of the existing legislative arsenal and the creation of a new criminal charge, what has been the impact of the #balancetonporc movement on the protection of victims of sexual offenses?
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”.
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