On February 23, 2016, the Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (General Directorate for Competition, Consumer Protection and Frauds, hereinafter “DGCCRF”) released it 2016 activity report.
In this report, the DGCCRF – which monitors the proper operation of the markets to the benefit of consumers and businesses – highlights the salient facts of 2016 concerning inter alia the balance of business relationships, the fight against late payments and the fight against anti-competitive practices. It also provides a status report on its activity concerning the rules on economic protection of consumers and the fight against abusive practices.
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.
In a judgment dated November 10, 2015, the Cour de Cassation (French Supreme Court) confirmed that late penalties provided for under Article L. 441-6 of the French Commercial Code are to be considered as default interest.
As such, these penalties can bear interest, as per Article 1154 of the French Civil Code.
Neither the public policy nature of the provisions set forth in Article L. 442-6 of the French Commercial Code nor the exclusive jurisdiction granted to judicial courts to hear restrictive trade practices related cases – including cases concerning the sudden breach of an established business relationship – precludes the use of arbitration to settle disputes in connection with this Article.
As such, insofar as it falls within the scope of application of the arbitration clause agreed upon by the parties, a claim for compensation for the loss suffered as a result of the sudden breach of an established business relationship can validly be brought before an arbitration tribunal.
This is the finding of the Cour de Cassation (French Supreme Court) in a decision rendered on October 21, 2015.
Unilateral (or asymmetrical) jurisdiction clauses may vary in form and nature. However, such clauses always provide for an option to only one of the parties allowing it to choose the court that will be competent in case of a dispute.
The validity of such unilateral jurisdiction clauses has been brought into question by several jurisdictions, starting with the Cour de Cassation (French Supreme Court). In its eBizcuss decision dated October 7, 2015 , the Cour de Cassation has provided an answer to the following question: Can a jurisdiction clause allow/enable one of the parties to bring its claims before a court other than the court it designates?
Arbitration has become the most usual alternative dispute resolution method for international disputes, in particular in the field of international trade. In the world, the most important arbitration body in this area is indisputably the International Court of Arbitration of the International Chamber of Commerce (“ICC”), located in Paris. In China, the most important arbitration body is the China International Economic and Trade Arbitration Commission (“CIETAC”).
As the expansion of international trade and investment introduces additional complexity to the business relationships between the various economic operators around the world, arbitration rules should improve the administration of cases, provide for a more transparent and predictable resolution of disputes, and meet the needs for interim and protective measures.
This is the context surrounding the adoption of new rules of arbitration by the ICC in 2012 (“ICC Rules”) and by the CIETAC in 2015 (“CIETAC Rules”). It is interesting to note that there is a convergence, if not a similarity, between the amendments made to each of these two sets of rules.
My participation in a panel on the rules of evidence during a meeting of the International Association of Defense Counsel (IADC) in Lisbon made me realize once again the substantial cultural gaps between Common law countries and Civil law countries.
Just like planets are not to meet each other, these gaps occur along several axes: the role of the parties, the role of the judge and the means legally admissible for the collection and production of evidence.
Pursuant to a Decree dated March 11, 2015 relating to the simplification of civil procedure, electronic communications and amicable dispute resolution, any and all summons must, since April 1, 2015, specify the steps taken by the parties to attempt to amicably settle their dispute.
Yet, in France like in China, the effectiveness of alternative dispute resolution clauses included by the parties in their contracts remains often uncertain.
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