Observations on Poire v. Tripier

Abstract

WITHIN A few months of each other, the French Cour de Cassation, in Poire v. Tripier (14 February 2003), and the High Court, in Cable and Wireless v. IBM (11 October 2002), had at solve the same problem and arrived, though by differing reasoning, at the same solution. The question which arose in both cases centred around what the court should do where one party alleges that the other has not respected the contractual clause which orders mediation, or more generally ADR, prior to the commencement of legal proceedings. We will thus leave aside the numerous cases where resort to conciliation is merely optional.l The purpose of this commentary is to explain to a reader of common law background how the French Cour de Cassation settled the question, after its various chambers gave differing responses over the past three years. It can indeed be instructive to understand the reasoning of foreign courts addressing the same issue,2 especially if the solution eventually adopted followed a period of hesitation. The case in question is important, because, instead of being judged by one of the chambers of the Cour de Cassation,3 it was judged by a special formation, known as a ‘mixed chamber’, convened by the President of the Cour de Cassation. The mixed chamber is constituted by judges belonging to different chambers of the Cour de Cassation. Its constitution is rare and permits consolidation of the jurisprudence and thereby eliminates conflicting decisions between chambers on the same issue. It should be noted that, contrary to English courts, French courts are not bound by precedent. In a nutshell, the facts of the case were that Mr Poire transferred his shareholding in a company to Mr Tripier. The contract stipulated that, in case of a dispute, the parties had to resort …