Introduction

Subject-matter jurisdiction

Territorial jurisdiction

Extensions of jurisdiction

Jurisdiction

Initiation of the proceedings

Instructing counsel

Submissions

Registry

Rules common to all procedures

Ordinary contentious procedure

Non-contentious proceedings

Single-judge procedure

Fixed-date procedure

Written procedure

Ordinary procedure

Interim relief proceedings

Expedited trial on the merits

Oral proceedings

Ex parte proceedings (sur requête)

Referral procedure by decision of the criminal court

Specific procedures

Proceedings before the Judicial Court

Initiation of proceedings

Proceedings

General procedure

Interim orders

Orders on ex parte application

Expedited proceedings on the merits

Powers of the President

Proceedings before the Commercial Court

Proceedings before the Judicial Court and the Commercial Court

2. Proceedings before the Judicial Court and the Commercial Court

Before the Commercial Court, the procedure is oral (Art. 860-1 CPC). The conduct of the proceedings must therefore comply with the provisions governing oral procedure common to all courts (Art. 446-1 to 446-4 CPC), as well as with the texts specifically dedicated to this procedure before the Commercial Court (Art. 860 to 861-2 CPC).
In an effort to promote conciliation within commercial jurisdicti …

Conduct of proceedings

Before the Commercial Court, the procedure is oral (Art. 860-1 CPC). The conduct of the proceedings must therefore comply with the provisions governing oral procedure common to all courts (Art. 446-1 to 446-4 CPC), as well as with the texts specifically dedicated to this procedure before the Commercial Court (Art. 860 to 861-2 CPC).

In an effort to promote conciliation within commercial jurisdictions, Decree No 2010-1165 of 1 October 2010  introduced Article 860-2 of the Code of Civil Procedure, subsequently amended by Decrees No 2015-282 of 11 March 2015  and No 2024-673 of 3 July 2024 . According to this text, when conciliation between the parties appears feasible, the formation of judgment may appoint a judicial conciliator for this purpose (Art. 860-2, para. 1, CPC). Since 1 September 2024, this formation may also decide that the parties will be summoned to an amicable settlement hearing, as provided for in Articles 774-1 to 774-4 of the same code (Art. 860-2, para. 2, CPC). These decisions, recorded in the file, constitute measures of judicial administration (Art. 860-2, para. 3, CPC). In the event of recourse to conciliation, Articles 128 to 131 of the Code of Civil Procedure, common provisions to all jurisdictions in this matter, apply. In the absence of conciliation and when the case is not ready to be judged, Article 861, para. 1, provides that “the formation of judgment refers it to a subsequent hearing or entrusts one of its members with the task of investigating it.” Except when the case is judged at the first hearing, the court clerk is required to notify, by any means, the parties who have not been verbally informed of the dates of subsequent hearings (Art. 861, para. 2, CPC) . More generally, the Commercial Court may only hear the parties, their counsel, or their representatives at a hearing subsequent to the one for which the summons was issued, if the parties have been verbally informed or notified by simple letter of the referral to this hearing . Similarly, a jurisdiction may not, in a composition different from that before which the initial proceedings were held, rule at the end of a subsequent hearing at which the parties did not appear, without ensuring that they have been informed of this change in composition .

The parties must, pursuant to Article 446-1, para. 1, of the Code of Civil Procedure, orally present their claims and the grounds supporting them at the hearing, but they also have the option to refer to the claims and grounds they may have submitted in writing. The principle of oral proceedings before the Commercial Court does not prevent the defendant from raising an objection to jurisdiction, provided that submissions on the merits have not been filed beforehand . Similarly, this principle does not prevent the parties from raising bars to proceedings during the hearing .

Even if a party retains the possibility of submitting written submissions, they are not mandatory . The oral nature of the proceedings, however, requires the parties to appear or be represented to validly present their claims and justify them . Only written submissions, reiterated verbally by the interested party present at the hearing or assisted by their lawyer, validly seize the court . Thus, the court cannot rely on the written claims of a party who is neither represented nor present at the hearing . However, when a specific provision allows, the parties may be authorized to present their claims and arguments in writing without appearing at the hearing, in accordance with Article 446-1, paragraph 2, of the Code of Civil Procedure, which states that “the judgment rendered under these conditions is adversarial.” Nevertheless, this text provides the judge with the option to order the parties to appear before him. If an exemption from appearing at the hearing is granted, the judge organizes the exchanges between the parties. Communication between them is made by registered letter with acknowledgment of receipt or by notification between lawyers, and it is justified to the formation of judgment within the time limits it sets. At the end of the last hearing, the court registry informs the parties of the date on which the judgment will be rendered (Art. 861-1 CPC). According to the Court of Cassation, in the absence of a specific provision allowing the parties to present their claims and arguments in writing without appearing at the hearing, the submission of written observations by a party cannot substitute for the lack of appearance . However, the judge cannot dismiss the submissions of a party when they have been exempted from appearing, allowing them to validly present their observations in writing, provided the adversarial principle is respected . In all cases, outside the situations referred to in Article 446-1, paragraph 2, the judge is only required to respond to the arguments and claims presented at the hearing, without being bound by any particular formal rule for presenting the parties' arguments and claims .

The observations of the parties are noted in the file or recorded in a report (Art. 446-1, para. 1, CPC), unless the court adjourns the case to a later hearing to uphold the adversarial principle . The discretion to accept or refuse the adjournment of a case set for pleading to a later hearing lies with the court, provided the parties have been given the opportunity to exercise their right to an oral debate . A judge cannot condemn the defaulting party if neither the judgment nor the procedure indicates that the party was informed of the counterclaim made orally by the defendant at the hearing . When the proceedings are adjourned to a later hearing, the judge may organize exchanges between the appearing parties, notably, after obtaining their opinion, by setting deadlines and, if they agree, the conditions for the disclosure of their claims, arguments, and exhibits (Art. 446-2, para. 1, CPC) . Except in cases where the judge excludes from the proceedings the claims, arguments, and exhibits of a party, disclosed without legitimate reason after the set date for exchanges and whose lateness infringes on the rights of the defense (Art. 446-2, para. 5, CPC), the judge must adjourn the case to a later hearing if it is found that the adversarial principle has not been respected . Article 446-2, paragraph 2, of the Code of Civil Procedure sets the requirements for written submissions when all appearing parties present their claims and arguments in writing and are assisted or represented by a lawyer. Thus, the submissions must expressly state the claims as well as the factual and legal arguments on which each claim is based, with an indication for each claim of the exhibits invoked and their numbering. A schedule listing the exhibits justifying these claims is attached to the submissions. The submissions must distinctly include:

Arguments not formulated in previous pleadings must be presented in a formally distinct manner. The court only rules on the claims stated in the dispositive section and examines the arguments supporting these claims only if they are raised in the discussion. The parties must reiterate in their final submissions the claims and arguments presented or invoked in their previous submissions. Failing this, they are deemed to have abandoned them, as the court only rules on the final submissions filed. When the parties are not assisted by a lawyer, the court may, with their agreement, provide that they will be deemed to have abandoned the claims and arguments not reiterated in their last disclosed pleadings (Art. 446-2, para. 3). The court remains seized of the pleadings filed by a party that has appeared, even if that party does not appear or is not represented at the adjourned hearing for which it has been reconvened . In case of non-compliance with these disclosure modalities set by the court, the latter may recall the case at the hearing for judgment or removal (Art. 446-2, para. 4, CPC).

In order to allow the court to ensure the proper conduct of proceedings and to observe the adversarial principle, Article 446-3, paragraph 1, of the Code of Civil Procedure provides that the court “may at any time invite the parties to provide the factual and legal explanations it deems necessary for the resolution of the dispute and require them to produce within the time it determines all documents or justifications likely to enlighten it, failing which it may proceed and rule by drawing all consequences from the party's abstention or refusal.” When exchanges take place outside a hearing pursuant to Article 446-2 of the same code, the parties are notified by any means of the request made by the court (Art. 446-3, para. 2, CPC).

Article 446-4 of the Code of Civil Procedure states that “the date of the claims and arguments of a party duly presented in writing is that of their disclosure between the parties” . The application of this text requires that the court has organized written exchanges between the parties in accordance with the preparation for trial of the oral procedure, as provided in Article 446-2 of the same code, regardless of whether the parties have been exempted from appearing .

Finally, Article 861-2, paragraph 1, of the Code of Civil Procedure states that, “without prejudice to the provisions of Article 68, the incidental application for the granting of a payment period pursuant to Article 1343-5 of the Civil Code may be made by interlocutory application submitted, delivered, or sent to the court registry, where it is recorded.” The text specifies that the applicant is required, before the hearing, to prove that the opponent has been informed by registered letter with acknowledgment of receipt, and to attach to the application the documents invoked in support of the request for a payment period. The applicant may choose not to appear at the hearing, in accordance with Article 446-1, paragraph 2, and the court will only grant the requests made against this party if it deems them regular, admissible, and well-founded (Art. 861-2, para. 2, CPC).

Decree No 2010-1165 of 1 October 2010 concerning conciliation and oral procedure in civil, commercial, and social matters, OJ 0230 of 3 October 2010, Art. 7.

Decree No 2015-282 of 11 March 2015 on the simplification of civil procedure for electronic communication and amicable dispute resolution, OJ 0062 of 14 March 2015, Art. 26.

Cass. 2e civ., 15 May 2014, LawLex202300008590JBJ; 13 May 2015, LawLex202400009833JBJ.

Cass. 2e civ., 27 September 2012, LawLex202300008711JBJ.

Cass. soc., 25 September 2013, LawLex202200010942JBJ.

Cass. 2e civ., 25 June 2015, LawLex202300008710JBJ.

Cass. 2e civ., 26 September 2013, LawLex202400009834JBJ; 19 November 2015, LawLex202400009836JBJ; Cass. com., 10 March 2015, LawLex202400009835JBJ.

Cass. com., 9 April 1991, LawLex202300008892JBJ, which considers that the provisions of former Article 871 of the Code of Civil Procedure, reiterated in Article 446-1 of the same code, according to which the claims of the parties or the reference they make to claims they would have made in writing are noted in the file or recorded in a report, are applicable to procedural exceptions, unless the court adjourns the case to a subsequent hearing to ensure compliance with the adversarial principle.

Cass. soc., 27 May 1998, LawLex202300008907JBJ.

Cass. 1re civ., 15 May 2007, LawLex202200005774JBJ.

Cass. soc., 13 January 2021, LawLex202400009837JBJ, which specifies that the court may always, to prepare the case for judgment, prescribe actions to be undertaken by the parties, such as the filing of their written submissions and exhibits with the court registry of the Court of Appeal.

Cass. 2e civ., 31 January 2019, LawLex202300008914JBJ.

Decree No 2024-673 of 3 July 2024 on various measures to simplify civil procedure and relating to regulated professions, OJ of 5 July 2024, Art. 1, applicable to ongoing proceedings since 1 September 2024, Art. 17, I.

Cass. 2e civ., 9 April 2009, LawLex202400009827JBJ; 20 January 2022, LawLex202400009828JBJ; 3 February 2022, LawLex202300007985JBJ.

In the regime prior to Decree No 2010-1165 of 1 October 2010, case law considered the date of the hearing, See Cass. com., 18 September 2007, LawLex202200001991JBJ.

Cass. 2e civ., 22 June 2017, LawLex202400009826JBJ.

Cass. com., 4 December 2013, LawLex202400009825JBJ.

Cass. com., 30 June 1987, LawLex202300009281JBJ.

Cass. soc., 10 November 2021, LawLex202400009832JBJ.

Cass. 2e civ., 6 May 1999, LawLex202200006625JBJ; 16 October 2003, LawLex202200006646JBJ: the defendant is not inadmissible who orally raised the objection to jurisdiction before the Commercial Court prior to any reference to his claims on the merits formulated in writing, since before this court, the procedure being oral, the parties' claims may be formulated during the hearing, and this is particularly true for procedural objections.

Cass. com., 10 October 1989, LawLex202300003582JBJ: the court cannot, to dismiss a bar to proceedings, hold that it was only presented “at the bar” and that the opposing parties were not able “to respond to it,” when it is incumbent upon the court, if necessary to uphold the adversarial principle, to adjourn the case to a subsequent hearing.

Cass. com., 23 November 1982, LawLex202200008198JBJ, which specifies that written submissions are admissible only if the party appears or is represented at the hearing.

Cass. 2e civ., 17 October 2013, LawLex202300008709JBJ.

2. Proceedings before the Judicial Court and the Commercial Court

104. Conduct of proceedings

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104. Conduct of proceedings

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