Introduction

Role of the parties

Role of judge

Contentious matters

Concept

Powers of the judge

Principle of adversarial proceedings

Non-contentious matters

Underlying principles of civil proceedings

Right to bring civil action

Abuse of the right to bring proceedings

Type of action

Concept of action

Interest in bringing proceedings

Standing

Rules governing action

Legal action

Initial claim

Counterclaim

Additional claim

Intervention

Incidental claim

Interruption of limitation period

Application to file suit (demande en justice)

Defense on the merits

Procedural objections (exceptions de procédure)

Procedural bars to admissibility (fins de non-recevoir)

Defenses

Nature of claim

Amount of the claim

Jurisdiction ratione materiae

Principles

Exceptional territorial jurisdiction

Extension of jurisdiction

Territorial jurisdiction

Competent court

Formal requirements

Substantive requirements

Presentation of the QPC (Question prioritaire de constitutionnalité)

Referral to Court of Cassation

Referral to Constitutional Council

Referral of the QPC

Investigation procedure

Conduct of hearing

Decision of the Constitutional Council

Proceedings before Constitutional Council

Priority question of constitutionality (QPC)

Simplified case preparation procedure

Participative procedure for case preparation purposes

Extra-judicial case preparation

Recourse to technical expert

Agreements on extra-judicial case preparation (mise en état)

Disclosure of exhibits

Production of documents

Exhibits

Common provisions for investigations

Rules specific to each investigation

Investigative measures

Disputes concerning private deeds (actes sous seing privé)

Forgery procedure against authentic instruments

Challenges to documentary evidence

Oath sworn as decisive evidence

Oath tendered by way of supplementation

Judicial oath

Administration of evidence

Hearings

Deliberations

Judgment

Formation

Judgment after adversarial proceedings

Judgment by default or judgment after trial

Contentious or non-contentious judgment

Judgment on the merits or provisional ruling (avant dire droit)

Combined judgment

Provisional judgment

Judgment in fast track proceedings

Types

Joinder and severance of proceedings

Interruption of proceedings

Suspension of proceedings

Discontinuance of proceedings (extinction)

Procedural incidents

Plea of lack of jurisdiction

Recusal/Dismissal for legitimate suspicion

Challenging the judge's competence

General rules

Voluntary intervention

Compulsory intervention

Joinder in proceedings (intervention)

Existence of a judgment

Same subject matter, cause, and parties

Authority of res judicata

General conditions of enforcement

Provisional enforcement

Grace period

Enforcement of the judgment

Bearing of costs

Order to pay non-recoverable costs

Verification/Recovery

Claims/Disputes

Costs and expenses

Ordinary remedies

Extraordinary remedies

Remedies

Judgments

Calculation of time-limits

Acts of judicial commissioners

Service of documents

Ordinary notification

Notification between lawyers

International notification

Place of notification

Notification

Communication by electronic means

Procedural acts

1. Ordinary Law of Civil Procedure

Article 48 of the Code of Civil Procedure establishes the validity of jurisdiction clauses between merchants/traders (commerçants) as long as they are specified in a very apparent manner in the commitment of the party against whom it is enforced , but declares as “unwritten” i.e. inoperative those that, directly or indirectly, derogate from the rules of territorial jurisdiction between non-merchan …

Jurisdiction clause

Article 48 of the Code of Civil Procedure establishes the validity of jurisdiction clauses between merchants/traders (commerçants) as long as they are specified in a very apparent manner in the commitment of the party against whom it is enforced , but declares as “unwritten” i.e. inoperative those that, directly or indirectly, derogate from the rules of territorial jurisdiction between non-merchants . According to the Court of Cassation, the status of merchant (cannot be attributed to a person performing an isolated commercial act, and a jurisdiction clause cannot be enforced against them . This is particularly true for an artisan who has accepted a bill of exchange . The prohibition set out in Article 48 is a mandatory public policy provision. Therefore, the jurisdiction clause in favor of the Commercial Court is not enforceable against the party to the contract who does not have the status of a merchant .

For the clause to be valid, it must appear conspicuously in the contract . This is not the case for the clause on the back of the unsigned order form in a long text containing the general terms and conditions written in very small print, suggesting that the jurisdiction of foreign and overseas courts is excluded . However, the clause that appears in conspicuous print among the conditions stipulated on the payment slip accompanying a check is enforceable against the company, which, by accepting the payment without reservation, has contractually and autonomously committed itself according to the terms specified in the letter accompanying the check, to which it has thus consented by agreeing to comply with them .

The clause must also be accepted at the time of the conclusion of the contract . Article 48 of the Code of Civil Procedure does not, however, require that the jurisdiction clause be the subject of acceptance distinct from that of the entire contract . It may result from the existence of regular business relations between the parties , the regular issuance of invoices and the general terms and conditions of sale appearing on them as long as they have not been contested , the delivery notes and invoices of which the party to the proceedings was the recipient , or a general specification book governing the parties' relations to which contractual documents refer . In the event of jurisdiction being assigned to one court in the general terms of the contract, and then to another in the special terms, the special provisions override the general stipulations . However, when the contractual instruments stipulate irreconcilable jurisdiction clauses, the designation of the territorially competent court is subject to the ordinary law rules of Articles 42 and 46 of the Code of Civil Procedure . The court must, in all cases, refer to the common intention of the parties . Furthermore, when the clause is concluded in the exclusive interest of one of the parties, it is incumbent upon that party to summon the opposing party before the designated court, but it may freely waive it . Finally, the jurisdiction clause is autonomous in nature from the main agreement in which it is included. Thus, it is not affected by the ineffectiveness of the main act .

Cass. 1re civ., 30 October 2006, LawLex202200006307JBJ.

Cass. 2e civ., 4 July 2007, LawLex202200006481JBJ, LawLex202200006185JBJ,. See also, Cass. 1re civ., 23 January 2008, LawLex202200006474JBJ, the jurisdiction clause is enforceable against a non-trader when the parties were, at the date of the agreement, domiciled in the territory of Member States of the Union, the situation was international, and the clause, written in relation to a specific legal relationship, designated the courts of a European State.

Cass. com., 17 November 2015, LawLex202300000719JBJ.

Cass. com., 14 December 1993 LawLex202300000713JBJ.

Cass. com., 18 September 2007, LawLex202300000715JBJ.

Cass. 1re civ., 16 February 1999, LawLex202200006298JBJ.

Cass. com., 21 June 2017, LawLex202300000720JBJ.

Cass. com., 20 November 1984, LawLex202300000717JBJ; Cass. 1re civ., 28 March 1995, LawLex202200006305JBJ.

Cass. com., 15 September 2015, LawLex201500001117JBJ.

Cass. com., 28 May 1991, LawLex202200006861JBJ, according to which the fact that a party does not invoke a jurisdiction clause in the context of interim proceedings does not demonstrate its unequivocal intention to waive reliance on it in subsequent proceedings on the merits, even if both proceedings concern the same dispute.

Cass. 1re civ., 8 July 2010, LawLex202200006469JBJ; Cass. com., 5 July 2017, LawLex201700001296JBJ.

Cass. com., 10 February 1981, LawLex202300000307JBJ, for the joint guarantor of a company; 8 November 1994, LawLex202200006369JBJ, for a company that has not yet been registered and entered in the commercial register. See however Cass. com., 4 January 1994, LawLex202200006360JBJ: before dismissing the application of a jurisdiction clause, the court must verify whether the party in question does not engage in commercial actions independently and has not made it their usual profession.

Cass. com., 11 May 1993, LawLex202200006374JBJ.

Cass. com., 10 June 1997, LawLex202200006372JBJ.

Cass. 2e civ., 20 February 1980, LawLex202200008073JBJ.

Cass. 2e civ., 20 February 1980, LawLex202200008073JBJ. See also Cass. com., 30 November 1981, LawLex202300000314JBJ, for a jurisdiction clause that appears only on the back of the forms and is printed in barely legible grayish characters; Cass. 2e civ., 7 June 2012, LawLex202300000818JBJ, on the clause that appears at the bottom of the back of the disputed contract in characters so fine and pale that they are very difficult to read.

Cass. com., 20 November 2001, LawLex202200006379JBJ.

Cass. com., 28 February 1983, LawLex202300000310JBJ,LawLex202300000504JBJ, which specifies that the court must verify whether the jurisdiction clause was indeed accepted at the time of the formation of the contract, the date of which has not been specified; 4 January 2005, LawLex202200006361JBJ, which holds that the recipient's consent to the transport contract does not extend to the jurisdiction clause derogating from the rules of territorial jurisdiction inserted in a consignment note that is not part of the contract's economy and must be accepted by them.

Cass. com., 20 July 1981, LawLex202200006378JBJ.

1. Ordinary Law of Civil Procedure

98. Jurisdiction clause

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

98. Jurisdiction clause

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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