E-newsletter  -  December 2016

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Best wishes for 2017!

Soulier's team wishes you an excellent Year 2017.

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Civil Procedure
Legal privilege under US law vs. French right to evidence

Laure Marolleau

Can legal privilege under US law prevent the enforcement of a preparatory inquiry in futurum (literally for the future) ordered in France?

Under French law, preparatory inquiries in futurum are designed to establish or preserve evidence, most of the time in connection with a future trial. Their implementation may be hindered by several barriers, including business secrecy, professional secrecy, employees’ right to privacy, or else the interference with the specific procedure called saisie-contrefaçon (i.e. search and seizure to document and establish infringements of IP rights).

In a decision issued on November 3, 2016, the Cour de Cassation (French Supreme Court) ruled on the tricky issue of how to accommodate the protection of professional secrecy and the right to evidence in an international context.

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Labor & Employment
Is the right to disconnect about to become an effective right for employees in France?

Emilie Ducorps-Prouvost

In today’s digital and “all-connected” world where 71% of French executive employees read work emails in the evening or on holiday, the “right to disconnect” has been officially introduced in the French Labor Code following its legislative recognition in the so-called “Work Law” of August 8, 2016.

Effective as from January 1, 2017, the mandatory annual negotiations on gender equality in the workplace and quality of life at work must also address “the conditions in which the employee can fully exercise his /her right to disconnect and the implementation by the company of mechanisms to regulate the use of digital tools”.

While the legislator’s laudable initiative to prompt employers to put in place regulation systems in order to protect the employees’ personal life and preserve their health is welcome, it is also perfectly understandable that companies working internationally and /or in an ultra-competitive environment that requires the highest level of responsiveness express concerns regarding the necessity to continue to rely on the reactivity of their autonomous executive employees.

Should we be pleased or concerned about the emergence of the right to disconnect? What are the boundaries of this right? Is it a realistic right or a right that is totally “disconnected” from business realities?

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Corporate Law
The “Sapin II Law”: What impact on French corporate law ?

Catherine Nommick

Adopted by the French Parliament on November 8, 2016, the Law on transparency, the fight against corruption and the modernization of the economy, commonly referred to as the “Sapin II Law” (the “Law”) “is intended [according to the French Government], more than 20 years after the Law no. 93- 122 of January 29, 1993 on the prevention of corruption and the transparency of business life and public procedures, to support further progress with regard to transparency and modernization of business life and the relationships between economic players and public decision-makers”.

This article focuses on measures that impact French corporate law.

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Dispute Resolution
Procedural consequences related to the impossibility to enforce a judgment

André Soulier

Flore Foyatier

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.

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Experts’ contributions
Today, being present on social networks is absolutely essential to drive consumer growth and retention

We are pleased to publish this month a contribution entitled Today, being present on social networks is absolutely essential to drive consumer growth and retention, authored by Ms. Morgane Soulier, founder of MS Influcence, a marketing and communications consulting agency that helps businesses plan and implement successful social network strategies, and develop and maintain their online reputation.

The increasing use of the Internet has changed the behavior of French people and their consumption patterns.

France has today almost 50 million Internet users, and 92% of businesses are present on the Internet.

Whatever their age, social background, occupation or gender, almost eight out of ten French people have one or several social network account(s).

Read the contribution

Experts’ contributions
Post-Election Analysis 2016: Trade

We are pleased to publish this month a contribution entitled Post-Election Analysis 2016: Trade, authored by our colleagues Raul R. Herrera, Partner, J. David Park, Partner, Dana Weekes, Associate and Amy Davenport, Senior Policy Specialist, at the US law firm Arnold & Porter LLP. The analysis was originally published on Wednesday, November 9, the day after the US presidential election.

The Trump Administration will be a strong proponent of trade enforcement, as it may look to impose sizeable tariffs on certain goods imported from China and Mexico, which may run afoul of WTO obligations. The administration also will look to address currency manipulation through countervailing duty laws or other legal provisions.

Along with President-elect Trump, there is a broad base of the electorate, including both Democrats and Republicans, strongly opposing the current TPP agreement and other trade agreements. This opposition will create challenges for Congress to pass any trade agreements in the 115th Congress.

Read the contribution

This contribution is part of a comprehensive Post-Election Analysis 2016 available on Arnold & Porter LLP’s website.

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