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

The parties may, under certain conditions, derogate from the legal rules of territorial jurisdiction by including jurisdiction clauses in their contracts. According to Article 48 of the Code of Civil Procedure, any clause that directly or indirectly modifies the rules of territorial jurisdiction is deemed unwritten , unless it has been concluded between merchants  and has been specified in a very  …

Derogation from the rules of territorial jurisdiction

The parties may, under certain conditions, derogate from the legal rules of territorial jurisdiction by including jurisdiction clauses in their contracts. According to Article 48 of the Code of Civil Procedure, any clause that directly or indirectly modifies the rules of territorial jurisdiction is deemed unwritten , unless it has been concluded between merchants  and has been specified in a very conspicuous manner in the undertaking of the party against whom it is enforced . Ultimately, it must allow for the determination of the chosen court .

When 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 . It is up to the trial courts, in the exercise of their sovereign power of assessment, to determine whether a jurisdiction clause has been stipulated in the common interest of both parties and to deduce that the court it designates is solely competent to rule on the dispute arising from the contract in question .

Finally, the jurisdiction clause has an autonomous character in relation to the main agreement in which it is included. It is therefore not affected by the ineffectiveness of the main act .

The prohibition of clauses extending territorial jurisdiction that do not meet the conditions of Article 48 is a mandatory public policy provision. However, in contentious matters, the court can only raise its lack of territorial jurisdiction ex officio in disputes relating to the status of persons, when the law assigns exclusive jurisdiction to another court, or if the defendant does not appear (Art. 77 and 93 CPC).

Cass. 2e civ., 4 July 2007, LawLex202200006481JBJ.

Cass. com., 10 February 1981, LawLex202300000307JBJ, for the joint guarantor of a company; 11 May 1993, LawLex202200006374JBJ, a craftsman who accepted a bill of exchange; 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; 8 November 1994, LawLex202200006369JBJ, for a company that has not yet been registered and entered in the commercial register.

Cass. 1re civ., 30 October 2006, LawLex202200006307JBJ; Cass. 2e civ., 20 February 1980, LawLex202200008073JBJ.

Cass. com., 30 September 2020, LawLex202400008279JBJ.

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

Cass. com., 15 September 2015, LawLex201500001117JBJ.

Cass. 2e civ., 1 June 2017, LawLex202200006477JBJ.

Cass. 1re civ., 8 July 2010, LawLex202200006469JBJ; 15 April 2015, LawLex201500000515JBJ; Cass. com., 5 July 2017, LawLex201700001296JBJ.

2. Proceedings before the Judicial Court and the Commercial Court

17. Derogation from the rules of territorial jurisdiction

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

17. Derogation from the rules of territorial jurisdiction

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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