One year after the signing of the Protocol on Proceedings before the International Chamber of the Paris Commercial Court, an appellate body was established within the Paris Court of Appeals[1]. In early 2018, the International Chamber of the Paris Court of Appeal was staffed with multilingual judges, following the model of the International Chamber of the Paris Commercial Court, and became operational[2]. Before these two Chambers, the parties may agree to use a number of procedural techniques that have proven effective in international arbitration proceedings, such as conducting part of the proceedings in English, cross-examining witnesses and experts, or setting a binding procedural timeline.
As early as 2017, the International Chamber of the Commercial Court had already been staffed with ten multilingual judges; this is now also the case for the Court of Appeals, whose International Chamber has been staffed with three professional multilingual judges since 2018[3]. Both Chambers are fully operational and already have a number of cases pending.
According to their own statements, the goal of the new international chambers is not to compete with arbitration, but to better align and adapt existing procedures in commercial courts to international procedures.
The procedural options available to the parties were set forth in writing in two essentially identical Protocols, which included, in particular, the following provisions:
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Competency:
In principle, both Chambers have jurisdiction over all commercial disputes with an international dimension[4]. Jurisdiction may be established by contractual agreement between the parties, for example through the following standard clause proposed by the International Chambers:
“Any dispute that may arise between the parties regarding the validity, interpretation, performance, or, more generally, this contract shall be submitted, in the first instance, to the jurisdiction of the International Commercial Chamber of the Paris Commercial Court, and, on appeal, to the jurisdiction of the International Commercial Chamber of the Paris Court of Appeal.”
Unlike the Protocol on Proceedings at First Instance, the Protocol on Proceedings at Second Instance before the Court of Appeals provides that the parties must, in principle, specifically agree that the procedural techniques set forth in the Protocol will in fact be applied[5]. It remains to be seen how this requirement will be handled in practice. In any event, in cases where the parties have expressly agreed in advance to the Chamber’s jurisdiction, the parties’ agreement to that effect should be presumed.
We should also commend the Chambers’ expertise, which extends to summary proceedings as well.
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Proposed procedural techniques:
– Trial Schedule: Normally, the court schedules cases on a case-by-case basis, especially at the trial court level, and there is a risk of multiple postponements, at least from the plaintiff’s perspective. This situation is remedied by the creation of a comprehensive, binding procedural schedule that sets out, in particular, mandatory dates for the exchange of pleadings and documents, the oral argument hearing, and the issuance of the decision—and on the basis of which, even at a relatively early stage, the total duration of the proceedings can be estimated. It should also be emphasized that the procedural schedule is not set unilaterally by the court, but is discussed and established jointly with the parties during a preliminary hearing.
– Use of English as the second language of the proceedings: Documents written in English may be submitted to the court without translation; witnesses, experts, and attorneys may speak in English, with simultaneous translation into French if necessary; the judge’s decisions are written solely in French but are automatically translated into English.
– Examination of witnesses and technical experts: A new provision has been introduced allowing the judge to examine witnesses and experts and then have them cross-examined[6]; in France, this is uncommon, unlike the practice in many other countries[7]. Furthermore, witnesses and experts are required, as in arbitration proceedings, to submit their testimony in writing in advance[8]. The parties participate in determining which individuals will be questioned. A party may cross-examine the other party’s witnesses and experts under the judge’s supervision.
– Establishment of a mechanism for the compulsory production of documents[9]: As is customary in arbitration proceedings, the parties may request that the judge order the opposing party to produce documents that it has not voluntarily submitted. However, to prevent excessive requests, the documents sought must be precisely identified and specified by the party requesting the compulsory production.
– Decision on Costs: The parties’ counsel will be allotted additional time during their closing arguments to present a detailed report on the costs and expenses incurred. This is a welcome development in proceedings involving international parties, where costs are inherently higher[10].
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In summary:
With the creation of a two-tier court system in which modern, internationally recognized methods of evidence can be used, France is responding appropriately to the growing importance of international disputes before commercial courts. Consequently, this new structure allows judges of the Court of Appeals—who also have jurisdiction over challenges to and the enforcement of arbitral awards[11]— to gain practical experience with evidentiary methods in arbitration through their role within the International Chamber, thereby providing them with practical experience that can only benefit the exercise of their oversight function.
Given that, at present, very few jurisdiction clauses designate the International Chambers as the competent court, in practice the application of the Protocols may be refused in many cases by one of the parties. It would therefore be desirable for judicial practice to evolve in such a way that the jurisdiction of the International Chambers is automatically binding on the parties whenever there are foreign elements involved[12].
By Detlev Kühner and Jessica Noy-Gsell
[1] CICAP (International Chamber of the Paris Court of Appeal). This is the16th Chamber of Division 5 of the Paris Court of Appeal, which has jurisdiction over commercial disputes.
[2] The Chamber has been operational since March 1, 2018, and issued its first decision on the merits on January 15, 2019.
[3] It should be noted that both associate judges have several years of experience as attorneys at international law firms.
[4] Since January 1, 2019, the International Chamber of the Court of Appeals has also had jurisdiction to hear challenges to and the enforcement of arbitral awards, which previously fell under the jurisdiction of another chamber.
[5] This is justified by the fact that the Protocol contains significant exceptions to civil procedure law.
[6] This applies to court-appointed experts and private experts appointed by the parties.
[7] Article 202 of the Code of Civil Procedure generally permits the submission of written statements; however, in practice, witnesses are rarely summoned and heard.
[8] However, notwithstanding Article 202 of the Code of Civil Procedure, it is not necessary to write the certificate by hand.
[9] The Code of Civil Procedure also provides for the possibility for the other party to apply to the court to obtain the production of evidence. However, this is rarely used in ordinary judicial practice.
[10] This is expressly provided for only in the Protocol on Proceedings before the Court of Appeals.
[11] On January 7, 2019, jurisdiction over challenges to and the enforcement of arbitral awards was transferred from the1st Chamber of Division 1 to the16th Chamber of Division 5.
[12] However, this may require an adjustment to the existing legal framework.