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French Consumer Law

Under French law, clauses requiring recourse to arbitration for a dispute which has not yet arisen, known as “clauses compromissoires”, are prohibited in consumer contracts under Article 2061 of the Civil Code, which reserves the benefit of such recourse to contracts concluded in relation to a professional activity. The rule is reflected in Article R. 212-2, 10° (former Article R. 132-2, 10°) of t …

Arbitration and prior mediation clauses

Under French law, clauses requiring recourse to arbitration for a dispute which has not yet arisen, known as “clauses compromissoires”, are prohibited in consumer contracts under Article 2061 of the Civil Code, which reserves the benefit of such recourse to contracts concluded in relation to a professional activity. The rule is reflected in Article R. 212-2, 10° (former Article R. 132-2, 10°) of the Consumer Code, which deems unfair, unless the professional produces evidence to the contrary, clauses obliging the consumer to refer exclusively to an arbitration court not covered by legal provisions. To fall within these provisions, recourse to arbitration must be stipulated in an arbitration clause contained in the consumer contract. Thus, outside of any arbitration clause inserted in the insurance policy, an arbitration agreement signed by the insurer and the insured person after the dispute has arisen does not fall under the prohibition .

More generally, Article R. 212-2, 10° deems to be unfair all clauses aimed at eliminating or impeding the exercise of legal action or remedies by the consumer, giving, on a non-exhaustive basis, the example of arbitration clauses or clauses stipulating exclusive recourse to alternative dispute resolution methods. Some decisions have included in the scope of the prohibition clauses which impose measures of prior conciliation before any referral to the court, considering that they constitute an obstacle to the principle of free access to the courts . The Court of Cassation criticized this approach, considering that such clauses did not create any imbalance between the rights and obligations of the parties . Indeed, there is no reason to call these clauses into question when they do not exclude recourse to the State court in the event of failure of the conciliation: only stipulations which prohibit any other method of dispute settlement are prohibited . However, the first civil chamber of the Court of Cassation subsequently adopted a more nuanced solution, recognizing that the prior mediation clause did in fact come within the scope of Article R. 212-2,, 10° and was thus unfair unless the professional was able bring the evidence to the contrary .

This solution is difficult to reconcile with the rules promoting recourse to alternative dispute resolution for consumer disputes adopted at the European level  and their transposition into French law . The mechanism, which falls under the new Articles L. 611-1 to L. 611-3 (former Articles L. 151-1 to L. 157-2) and R. 612-1 to R. 616-2 (former Articles  R. 152-1 to R. 156-2) of the Consumer Code, entered into force on January 1, 2016. Reserved for disputes introduced by consumers - the professional cannot take the initiative  -, the recourse to mediation must be free  and can only intervene after a prior attempt to resolve the dispute directly with the professional by a written claim . Like Article R. 212-2, 10°, Article L. 612-4 (former Article L. 152-4) prohibits any clause or agreement requiring the consumer, in the event of a dispute, to resort to compulsory mediation before the dispute is referred to the court. When he is employed or paid exclusively by the professional, the consumer mediator must meet the following conditions:

-  have expertise in the area of the mediation and sound legal knowledge, particularly in the field of consumer affairs;

-  be appointed for a minimum period of three years;

-  be paid without regard to the outcome of the mediation;

-  not be in a situation of conflict of interest and, if necessary, report it ;

-  have been designated, by a transparent procedure, by a collegiate body set up by the undertaking, comprising representatives of approved consumer associations and representatives of the professional, or a national advisory body in the field of consumer affairs or specific to a sector of activity under conditions established by decree; - have, at the end of his term of office, a prohibition to work for at least three years for the professional who employed him or for the federation to which the professional is affiliated;

-  have no hierarchical or functional relationship with the professional during the exercise of his mediation mission .

The appointed mediator informs the parties of the solution he proposes and reminds them, by simple letter or by electronic means, that they are free to accept or refuse his proposal for a solution and that participation in the mediation does not exclude the possibility of legal action . Pursuant to Article R. 612-5 (former Article  R. 152-5), the mediation ends no later than ninety days from the date of referral of the dispute.

 Cass. 1re civ., 25 February 2010, LawLex201400000548JBJ.

  TGI Paris, 18 October 1995, LawLex200400001700JBJ; 7 September 1999, LawLex200300001882JBJ, upheld by CA Paris, 4 September 2003, LawLex200400000417JBJ. See also, in this regard, CCA, Recommendation No 79-02 of 30 January 1979 on clauses relating to legal remedies.

 Conditions common to all mediators under Article L. 613-1 (former Article L. 153-1) Consumer Code.

 Conditions specific to mediators employed and remunerated by the professional under Article L. 613-2 (former Article L. 153-2) of the Consumer Code.

  Cass. 1re civ., 1 February 2005, LawLex200500004136JBJ, overturning CA Paris, 4 September 2003, cited above.

  CA Poitiers, 18 March 2016, LawLex201600000682JBJ.

 Cass. civ. 1re, 16 May 2018, LawLex201800000754JBJ.

 Directive No 2013/11 of 21 May 2013 on alternative dispute resolution for consumer disputes, OJEU L 165 of 18 June 2013, 63.

 Ordinance No 2015-1033 of 20 August 2015, OJ of 21 August 2015, 14721. See also Directive No 2015/1382 of 30 October 2015, OJ of 31 October 2015, 20408.

 Consumer Code, Article L. 611-3, 5° (former Article L. 151-3 (e)).

 Consumer Code, Article L. 612-1 (former Article L. 152-1). - The text imposes the mechanism on the professional, specifying that "the professional guarantees the consumer the effective recourse to a system of consumer mediation. The professional can set up its own consumer mediation system or propose to the consumer the use of any other consumer mediator meeting the requirements of this title".

 Consumer Code, Article L. 612-2, 1° (former Article L. 152-2, (a)).

French Consumer Law

433. Arbitration and prior mediation clauses

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433. Arbitration and prior mediation clauses

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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