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

It is possible for parties to a contract to conventionally modify the legal rules of jurisdiction by inserting a jurisdiction clause in the document. This is a clause by which “the parties agree to submit any disputes that may arise in connection with this contract to a court they designate, thereby deviating from the rules of subject-matter jurisdiction or the rules of territorial jurisdiction” . …

Clause conferring subject-matter jurisdiction

It is possible for parties to a contract to conventionally modify the legal rules of jurisdiction by inserting a jurisdiction clause in the document. This is a clause by which “the parties agree to submit any disputes that may arise in connection with this contract to a court they designate, thereby deviating from the rules of subject-matter jurisdiction or the rules of territorial jurisdiction” . This clause, which must be set aside when it contravenes mandatory public policy provisions (Art. 6 Civil Code), is only valid in certain cases and is subject to a number of conditions.

The jurisdiction clause is subject to compliance with the conditions of validity of the contract, governed by Articles 1128 et seq. of the Civil Code, among which the rules relating to the consent of the parties are paramount . Indeed, the jurisdiction clause must be specially accepted by the recipient, which cannot result from the mere completion of the bill of lading . The trial courts are required to verify whether the jurisdiction clause was accepted at the time of the formation of the contract . Thus, such a clause is not valid when it is not proven that the defendant accepted the disputed jurisdiction clause, which was not specified in a sufficiently apparent manner in the agreement binding the parties . In the presence of a clear conflict between the general conditions of both parties, one party cannot claim that the other consented to the jurisdiction clause mentioned on the invoices issued by it merely because the latter ensured payment with full knowledge, as reference to previous relations is inoperative insofar as the ordering process has always been identical . A jurisdiction clause agreed upon in the contract concluded between parties cannot be enforced against a third party unless it is established that this third party has given effective consent to the said clause . However, insofar as the project owner has a direct contractual action against the manufacturer of the materials based on the sales contract concluded between this manufacturer and the intermediary seller, the jurisdiction clause in this contract is enforceable against him . When the claimant seeks joint and several liability of several defendants for damages for wrongful termination of a contract, these claims, which concern a single dispute and which, if judged separately, could lead to contradictory decisions, justify the referral to a single court under such a clause agreed with only one of the defendants .

Regarding the content of the jurisdiction clause, it must meet the objective of predictability. This is not the case for a clause by which only one of the parties has reserved the right to derogate from the jurisdiction attribution and which contains no reference to a rule of jurisdiction in force in a Member State nor any sufficiently precise objective element to identify the court that could be seized . Furthermore, a jurisdiction clause is considered autonomous from the main agreement in which it is included and is, therefore, not affected by the ineffectiveness of that act .

Conventional arrangements concerning subject-matter jurisdiction are based on Article 41 of the Code of Civil Procedure, which states that “once a dispute has arisen, the parties may always agree that their dispute will be judged by a court even if it lacks jurisdiction due to the amount of the claim.” The text adds that the parties may also, “under the same condition and for rights over which they have free disposal, agree by express agreement that their dispute will be judged without appeal even if the amount of the claim exceeds the appellate jurisdiction threshold.” However, it should be noted that the possibility of conventionally arranging subject-matter jurisdiction cannot contravene mandatory public policy provisions in this area (Art. 6). Furthermore, while it is accepted that a non-merchant claimant has an option, as they can bring proceedings before the Judicial Court or the Commercial Court, the reverse is not true. Indeed, the merchant claimant does not have such a choice, and the Court of Cassation has established the principle that a clause attributing jurisdiction, in the event of a dispute, to the Commercial Court is unenforceable against a non-merchant defendant. However, since the Judicial Court hears all incidental claims that do not fall under the exclusive jurisdiction of another court (Art. 51, para. 1, CPC), merchants are not prohibited from conventionally opting for the jurisdiction of the Judicial Court. It follows from all the above that the clause attributing subject-matter jurisdiction in favor of the Commercial Court can only derogate from the jurisdiction related to the appellate jurisdiction threshold resulting from Article R. 721-6 of the Commercial Code.

CORNU, Vocabulaire juridique, Clause attributive de juridiction.

Cass. com., 23 January 2019, LawLex202400008983JBJ, which quashes the appeal decision that held, to declare the Commercial Court of Versailles competent, that the jurisdiction clause appears in the four invoices issued in the defendant's name, as well as in the corresponding delivery notes, bearing the name of its manager, so that it was rightly that the court thus designated “retained its jurisdiction, being at first analysis seized of a dispute relating to the performance of a contract between the parties bound by an ongoing business relationship,” whereas if the defendant contests the validity of these documents by claiming never to have concluded a contract, the judges of the second degree did not establish that a business relationship was already in place at the date of the orders for which the claimant seeks payment, from which it would have resulted that the defendant was aware of the disputed clause and had accepted it.

Cass. 1re civ., 8 July 2010, LawLex202200006469JBJ; 15 April 2015, LawLex201500000515JBJ, which approves the courts of second instance for rightly deducing that it is irrelevant whether the contract has reached its term as long as the action of one of the parties aims to obtain, on the one hand, compensation for the damage arising from alleged breaches by the other party of its contractual obligations and, on the other hand, payment of unpaid invoices; Cass. com., 5 July 2017, LawLex201700001296JBJ.

Cass. com., 25 June 2002, LawLex202200006382JBJ.

Cass. com., 14 April 1992, LawLex202300000504JBJ, which quashes the appeal judgment that holds, to dismiss the objection to jurisdiction and decide that the jurisdiction clause applies, that the defendant accepted it three times without reservation at the time of receipt of the goods and raised no objection when he received the invoices, without investigating whether this jurisdiction clause was accepted at the time of the formation of the contract, the date of which was not specified.

Cass. com., 7 February 2018, LawLex202400008939JBJ.

Cass. 1re civ., 17 April 2019, LawLex202400008984JBJ.

Cass. 1re civ., 11 September 2013, LawLex202200000288JBJ, according to which a jurisdiction clause agreed upon in the contract concluded between the manufacturer of a good and the purchaser thereof cannot be enforced against the third-party sub-purchaser who, following a succession of contracts transferring ownership concluded between parties established in different Member States, has acquired this good and wishes to bring a liability action against the manufacturer, unless it is established that this third party has given effective consent to the said clause; 7 October 2015, LawLex202400008985JBJ.

Cass. 3e civ., 30 October 1991, LawLex202200000744JBJ.

Cass. com., 13 February 2019, LawLex202400008986JBJ.

Cass. 1re civ., 3 October 2018, LawLex202400009191JBJ, which quashes the appeal decision that upheld the objection to jurisdiction, holding that the fact that only one of the parties reserved the right to derogate from the jurisdiction clause provided for in the contract does not render the jurisdiction clause potestative, excluding its consideration, since if it waives the application of this clause, it can only refer to the provisions of Article 5.1 of Regulation No 44-2001 of 22 December 2000, which apply when a party disregards the jurisdiction chosen by the parties, which meets the objective of predictability, whereas the disputed clause contains no reference to a rule of jurisdiction in force in a Member State nor any sufficiently precise objective element to identify the court that could be seized, so that it does not meet the objective of predictability.

2. Proceedings before the Judicial Court and the Commercial Court

92. Clause conferring subject-matter jurisdiction

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

92. Clause conferring subject-matter jurisdiction

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise