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

Pursuant to Article 48 of the Code of Civil Procedure, “any clause that directly or indirectly derogates from the rules of territorial jurisdiction is deemed unwritten unless it has been agreed upon between persons all having contracted as traders and it has been specified in a very apparent manner in the commitment of the party against whom it is enforced” , it being specified that the commercial …

Jurisdiction clause

Pursuant to Article 48 of the Code of Civil Procedure, “any clause that directly or indirectly derogates from the rules of territorial jurisdiction is deemed unwritten unless it has been agreed upon between persons all having contracted as traders and it has been specified in a very apparent manner in the commitment of the party against whom it is enforced” , it being specified that the commercial nature of the act does not, by itself, confer the status of trader . The Court of Cassation strictly controls these two conditions , which apply even in the case of approval of the agreement by ministerial order, which cannot constitute a derogation from the rule laid down by Article 48 .

When one of the parties does not have the status of a trader, the jurisdiction clause must be deemed unwritten , regardless of which party seeks to rely on it . This status cannot be attributed to one of the parties for having performed one single act of a commercial nature . The Commercial Chamber specified that a jurisdiction clause is unenforceable against the commercial agent  and the chairman of the board of directors of a company , who do not have the status of a trader. This status is assessed at the date the jurisdiction clause was concluded . In the context of companies in formation, the territorial jurisdiction clause cannot be enforceable against the person who acted on behalf of a company in the process of being formed , unless the company has assumed the commitments made in its name . To determine whether a territorial jurisdiction clause should be deemed unwritten, the trial courts must ascertain whether the acts performed are of a commercial nature and whether the parties concerned engage in them as their regular profession . The activity of a defendant, which involves asbestos diagnosis, pest status, thermal and lead diagnosis, determination of living area, expertise and market value, and generally all diagnostics and related operations contributing to the sustainability, optimization, and transfer of assets, falls into the category of service provision and has a commercial nature, within the meaning of Article L. 110-1, 6° of the Commercial Code, insofar as it is carried out habitually and for profit .

In addition to its acceptance by the parties, the territorial jurisdiction clause must be specified in a sufficiently conspicuous manner in the agreement binding them . The clause must comply with the specifications of Article 48 of the Code of Civil Procedure regarding the material conditions of its presentation, taking into account the typography of the text in which it is inserted . The conspicuous nature of the jurisdiction clause is subject to the sovereign assessment by the trial courts of the evidence submitted to them . A territorial jurisdiction clause, which appears not only on the front but also on the back of the order form signed by the defendant, written in print characters and appearing at the bottom of the front of the order form in a conspicuous manner, is valid insofar as the latter was aware of this clause . The same applies to the clause inserted in a sufficiently conspicuous manner in the general terms and conditions of purchase and sale typed in small print, which met the requirement of Article 48 with regard to the material conditions of its presentation, taking into account the typography of the text in which it is inserted , or to the one that appears in an article clearly identified in the contract but only refers to “the courts of Paris” as long as the nature of the chosen jurisdiction, namely the Paris Commercial Court, is determinable by the mere commercial company status of the parties . However, when the original lease contract contains, on the front and in rather small print, under a chapter title in blue color “Applicable Law - Jurisdiction,” the stipulation that the contract is subject to French law, and that all disputes relating to its formation, validity, interpretation, and performance are under the exclusive jurisdiction of the courts of Strasbourg, and, at the bottom of the back, reproducing the general conditions in print so fine and pale that they are very difficult to read, an article, in slightly less faint print, reiterating the jurisdiction clause, the disputed clause does not meet the requirements of Article 48 of the Code of Civil Procedure as it is not specified in a very conspicuous manner .

When jurisdiction clauses contradict each other, this contradiction implies that they are deemed inapplicable to the dispute, reverting to the ordinary law rules of Article L. 721-3 of the Commercial Code, according to which commercial courts have jurisdiction over disputes relating to commitments between commercial companies, and Article 42 of the Code of Civil Procedure, which, when there are multiple defendants, allows the claimant to choose the jurisdiction of the place where one of them resides . The Court of Cassation also considers that such a clause is, in any case, unenforceable against the party that brings the matter before the interim relief judge .

Finally, due to its autonomy from the main agreement in which it is included, the clause conferring territorial jurisdiction is not affected by the ineffectiveness of this act .

Cass. com., 30 September 2020, LawLex202400008279JBJ.

For a suretyship, Cass. com., 25 March 1997, LawLex202200006185JBJ; 28 October 2008, LawLex202400008931JBJ.

Cass. com., 8 November 1994, LawLex202200006369JBJ, JCP 1995, IV, 62; JCP E No 03, 2019, 1023, CASSON; Gaz. Pal. 16 January 1995, summary, obs. CROZE and MOREL, which quashes the appeal decision that upheld, to reject the objection to the jurisdiction of the Commercial Court, that the contract concluded by a person, on behalf of a company in formation, contained a jurisdiction clause, whereas the company had not been registered in the trade and companies register and had not yet acquired legal personality, and its manager did not have the status of a trader.

Cass. com., 20 October 1992, LawLex202400008937JBJ.

Cass. com., 25 February 1992, LawLex202400008935JBJ.

Cass. com., 5 December 2006, LawLex200600002520JBJ.

Cass. com., 7 February 2018, LawLex202400008939JBJ: when it is not proven that the defendant accepted the disputed jurisdiction clause, which is also not specified in a sufficiently apparent manner in the agreement binding the parties involved, appellate judges may conclude that the parties did not agree to a jurisdiction clause in accordance with the provisions of Article 48 of the Code of Civil Procedure.

Cass. com., 20 April 2017, LawLex202400008940JBJ, which quashes the appeal judgment that held, to dismiss the objection to territorial jurisdiction, that the jurisdiction clause appears in the general terms and conditions of sale in a readable and explicit manner.

Cass. com., 8 March 2017, LawLex202400008943JBJ: when two purchase orders signed by the defendant, constituting a commitment, include, at the end of a fifteen-line text entitled “mandate certificate,” the jurisdiction clause relied upon by the claimant, it is in the exercise of their sovereign power to assess the evidence submitted to them that the trial courts held that this clause is not specified in a very conspicuous manner.

Cass. com., 9 February 1999, LawLex202400008941JBJ.

Cass. com., 10 November 2009, LawLex202300010775JBJ.

Cass. com., 30 September 2020, LawLex202400008279JBJ, prec., which quashes the appeal judgment that holds, to dismiss the objection to territorial jurisdiction raised by the defendant, that although the disputed clause is apparent in this case since it appears in an Article 17 clearly identified in the contract, it nevertheless refers to “the courts of Paris,” so that, while the seat of the chosen jurisdiction is perfectly identifiable, the nature of the concerned jurisdiction is not, thus it is not explicit as it does not refer to a specific jurisdiction, therefore it is not valid and cannot, consequently, be enforced against the claimant.

Cass. 2e civ., 1 June 2017, LawLex202200006477JBJ: since the clause was concluded between two commercial companies, in a very apparent manner, it is in the exercise of their sovereign power of assessment that the trial courts held that the jurisdiction clause was stipulated in the common interest of both parties and deduced that the court it designates is solely competent to rule on the dispute arising from the contract in question.

Cass. 2e civ., 7 June 2012, LawLex202300000818JBJ.

Cass. com., 14 October 2020, LawLex202400008746JBJ.

Cass. 2e civ., 17 June 1998, LawLex202200006175JBJ; Cass. com., 25 June 2002, LawLex202400008944JBJ.

Cass. com., 5 July 2017, LawLex201700001296JBJ.

Cass. 2e civ., 26 June 2003, LawLex202200006345JBJ, which quashes the appeal decision that holds, to reject the objection raised by the defendant, that the pension fund rightly invokes the clause in its statutes that assigns jurisdiction, for all disputes arising from their application, to the courts of Paris, whereas neither the plaintiff nor the defendant are traders and the approval by ministerial order cannot constitute a derogation from the rule set out by Article 48 of the Code of Civil Procedure; 13 July 2006, LawLex202400008942JBJ, which quashes the appeal decision that holds, to reject the objection of territorial jurisdiction raised by the defendant, that the clause granting jurisdiction to the courts of Paris, contained in the pension fund's statutes, has regulatory value by the effect of the ministerial order approving the statutes, whereas neither the plaintiff nor the defendant are traders and the approval by ministerial order cannot constitute a derogation from the rule set out by Article 48; 4 July 2007, LawLex202200006481JBJ, Procedures No 10, October 2007, comm. 213, PERROT, which quashes the appeal decision that holds that the statutes of the paid leave fund, having been approved by the competent administrative authority, have regulatory value and the jurisdictional scope of disputes concerning the subjection of undertakings is determined by the article of these statutes allowing the fund to bring proceedings in the court of the place of its headquarters, and not by the provisions of ordinary law, whereas it is not a trader and the approval by ministerial order of its statutes cannot constitute a derogation from the rule set out by Article 48, which constitutes a hierarchically superior norm.

Cass. 2e civ., 29 March 1989, LawLex202400008936JBJ, according to which the clause conferring territorial jurisdiction must be deemed unwritten when the parties have entered into loan agreements and the clause inserted in these agreements, derogating from the rules of territorial jurisdiction, was agreed upon between parties, one of whom is not a trader.

Cass. 2e civ., 21 December 2000, LawLex202400008932JBJ.

Cass. com., 21 November 1995, LawLex202400008933JBJ.

Cass. com., 24 October 1995, LawLex200200005504JBJ.

Cass. com., 28 June 1983, LawLex202300000789JBJ.

Cass. com., 12 March 2013, LawLex202200011100JBJ, for a claimant who was previously registered in the trade and companies register, the claimant who has been removed.

2. Proceedings before the Judicial Court and the Commercial Court

96. Jurisdiction clause

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

96. Jurisdiction clause

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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