Paris Court Research Articles

“L’affaire Tapie”, a Review From an Arbitration Perspective

This paper discusses the arbitration law issues raised in the dispute that opposed French businessman Bernard Tapie to its former bank (that the French state has since bailed-out) following the sale of the German company Adidas in 1992. The dispute was eventually decided by an arbitral tribunal which ordered the bank to pay to Mr Tapie over € 400 million as damages. The case was brought before the French courts, and the question that arose was whether the bank was entitled to request a judicial review of the award based on the alleged fraud committed by Mr Tapie and/or his counsel and one of the arbitrators, to favour Mr Tapie in the arbitration. The decisive criterion was the domestic or international nature of the arbitration, as a review would only be possible if the arbitration was domestic. The Paris Court of Appeal (decision of 17 February 2015) and the Cour de cassation (decision of 30 June 2016) ruled in favour of the bank, stating that the arbitration was of domestic nature and the review of the arbitral award admissible. The French judge also held that fraud was indeed constituted, and withdrew the arbitral award. This case sheds light on the French courts’ narrower interpretation of the internationality of a dispute and offers a good illustration of the possibility for a judge entrusted with the judicial review of an arbitral award to consider elements originating from pending criminal proceedings.

Of Personalities and Personae: A French Victory for Film Producers and Authors

The international medium of film poses many challenges for authors and copyright owners. So do the practices of the advertising industry. Each jurisdiction approaches these challenges differently. In a recent French decision three issues that are of interest in Australia were discussed – the copyright status of a literary or dramatic character, the use of such a persona in character merchandising, and the moral right of film directors to control the exploitation of the persona. This article examines the 2004 decision of the Paris Court of Appeal in the matter of the film ‘The Fifth Element’. It compares the protection offered to author and copyright owner under French law with the protection offered by Australian legislation and common law.

Graphies non-conventionnelles dans la correspondance privée au XVIe siècle

AbstractThe Balcarres Papers in the National Library of Scotland contain a collection of several hundred letters (in French) addressed to Marie de Guise while she was Regent of Scotland between 1542 and 1560. Most of these are written in the formal epistolary French of the time, but three in particular, written by women in the Queen’s personal entourage, are written in more intimate style and, among other interesting linguistic features, embody spellings which stray some distance from current orthographical norms. It is widely assumed that non-standard forms such as these reflect the author’s lack of education and lower-class origins. While this explanation may hold for one of the letters presented here, it does not work with the other two: in the first of these, the writer seems to have deliberately chosen to use vernacular forms, perhaps on the grounds of current fashion in the Paris Court, while in the second she seems to have evolved her own personal spelling system reflecting her regional (Lorraine) identity. At all events, before the tyrannie de la grammaire, non-standard spelling was evidently not heavily stigmatised and might even have been prized in some social contexts.

Procédure de liquidation d’une partie, arbitrage et droit d’accès à la justice : vers une réconciliation ?

Arbitration and the insolvent party, finally back together? At the end of 2011, the Paris Court of Appeal was confronted with the issue of the validity of an arbitral award rendered in a case where the defendant, a company that was being liquidated, could not pay the advance on cost and accordingly had its counterclaims withdrawn from the proceedings in application of the ICC Arbitration Rules (the "Pirelli" case). The Paris Court of Appeal annulled the award on the basis that, since the possibility of reintroducing the claim was only theoretical due to the liquidation, the withdrawal of the counterclaim amounted to a denial of justice. However, further to the recourse filed by the claimant, the French Supreme Court narrowed the scope of the Paris Court of Appeal's decision. Specifically, the French Supreme Court determined that, when the advance on costs for counterclaims was not paid, the arbitral tribunal was only compelled to examine claims that are "inseparable" from the main claim ("indissociables" in French). If the option chosen by the Supreme Court therefore favors the binding nature of arbitration, it does not yet provide a solution to claimants who are not able to fund arbitration proceedings and only allows insolvent parties to present claims that can be considered as defenses to the main claims. Before the Supreme Court rendered its decision in the Pirelli case, the Paris Court of Appeal was confronted with a case where a company called Lola Fleurs asked it to decide that an arbitration agreement was inapplicable because of its own inability to pay arbitration costs. Although the Paris Court of Appeal decided to apply the negative effect of the competence-competence principle and comfort the strength of the agreement to arbitrate, it also took this opportunity to affirm that in all cases, the arbitral tribunal is responsible for granting the parties an access to justice.

Accounting valuation in nineteenth-century French bankruptcies

The purpose of this article is to study accounting valuation practices in French bankruptcies following enactment of the Law of 1838. The research is based on a study of 500 files in the archives of the Paris Court of Commerce. After first presenting the main steps in the bankruptcy proceedings, it is shown how the self-interest of the agents – the bankrupt, the receiver, and the creditors – was built up through accounting valuation practices. The outcome of this analysis provides an insight into accounting valuation practices in nineteenth-century France and a better understanding of the self-interest of the agents in bankruptcy proceedings.

Hosting providers' liability: Cour de cassation puts an end to the notice and stay down rule

In applying the rules on hosting providers' liability, French lower courts have shifted from a notice and take down rule (provided by Article 14 of the E-Commerce Directive and Article 6 of the French implementing law) to a notice and stay down rule (created by the judges). This interpretation was confirmed in 2011 by the Paris Court of Appeal but overruled by the Cour de cassation on 12 July 2012.

Jura Novit Curia and the Right to Be Heard - An Analysis of Recent Case Law

In international arbitration challenges to arbitral awards are on the rise. The losing party sometimes challenges the award on the ground that the tribunal has applied the principle of jura novit curia when determining the contents of the applicable substantive law. It is argued that the award should be set aside, since the arbitral tribunal has exceeded its authority or failed to comply with the fundamental requirements of due process, such as the right to be heard. The question of whether, and how, the arbitral tribunal may apply the principle of jura novit curia has been addressed in a number of court decisions over the last five years: by the Swiss Federal Supreme Court in February 2009 and August 2010, by the Quebec Superior Court in December 2008, by the Finnish Supreme Court in July 2008, and by the Paris Court of Appeal in December 2010. The article first reviews the limits of the arbitral tribunal's authority to apply the principle of jura novit curia Thereafter, the referenced case law is presented and analyzed based on the criterion of foreseeability. In conclusion some thoughts are presented on what issues the arbitral tribunal should consider if contemplating applying the principle of jura novit curia in international arbitration.

L’« extension » de la clause compromissoire à des

The jurisdiction ratione personae of an arbitral tribunal has preoccupied legal theory and practice since many years; the discussion focuses nowadays on the existence of implicit consent to arbitration. Arbitrators, in view of deciding on their jurisdiction over a non-signatory, may directly apply certain specific legal concepts of a national law that imply consent, but more often than not they turn to an analysis of parties' conduct pragmatically examining all the factual elements and the surrounding circumstances of a particular case. By this process, they may conclude - on application of concepts akin to a règle matérielle of French origin - that a non-signatory has actually consented to arbitration or determine - on application of the theories of piercing the corporate veil and alter ego or better, on direct application of general principles of law - that a non-signatory should be considered as a real party to the arbitration. What is important is that arbitrators arrive at the conviction that the nonsignatory must be retained as a party to the arbitration and firmly establish all relevant reasons in their award. The risk, however, of an opposite conclusion of a national court at the stage of enforcement of the award cannot be excluded. The decision of the UK Supreme Court in the Dallah case, by which enforcement of the award against Pakistan was denied because according to French law there had been no "common intention" for Pakistan to be a party to the arbitration agreement, is a frustrating example of this risk from various angles, not limited to the conflict of this decision with the decision of the Paris Court of Appeal.

Procédure de liquidation d’une partie, arbitrage et droit d’accès à la justice : l’impossible équation ?

The impossible relationship between arbitration and the insolvent party? The ICC Arbitration Rules provide that each party should contribute in equal shares to the advance on costs of the arbitration. However when a party has submitted counterclaims and refuses to comply with such payment, the other party may request the Court to set separate advances on costs. If the defaulting party still does not comply with the advance on costs within a time-limit set by the Secretariat, the rules provide that its counterclaims may be considered withdrawn. However, such withdrawal does not prevent the defaulting party from reintroducing the same claims at a later date in another proceeding. The Paris Court of Appeal was recently confronted with the issue of the validity of an arbitral award rendered in a case where a company which was being liquidated could not pay the advance on cost and accordingly had its counterclaims withdrawn from the proceedings. On November 17, 2011, the Paris Court judged that, despite the conformity of the withdrawal decision taken by International court of Arbitration with its Rules, the defaulting party had been deprived of its counterclaim in practice. Indeed, the possibility of reintroducing the claim was only theoretical while the liquidation process were ongoing and the withdrawal in practice amounted to a denial of justice and resulted into breaching the equality between the parties. As a consequence, the award was considered in breach of the adversarial principle and international public policy and was annulled on the grounds of former articles 1502 (4) and (5) and 1504 of the French Code of Civil procedure. If this decision may be considered fair to the insolvent party acting in good faith, it questions essential principles of arbitration as a system of private justice. Moreover, as the strict application of the ICC Arbitration Rules is hereby criticized by the Paris Court of Appeals, this decision creates additional doubts as to the scope of the duties belonging to the arbitral tribunal for the award to comply with the requirements of due process.

Accounting prescription and practice in nineteenth-century France. An analysis of bankruptcy cases

Following Colbert's Ordonnance of 1673, most of whose provisions were reiterated in the Code de Commerce, 1807 and the Law of Bankruptcy, 1838, traders in France were under a legal obligation to keep accounts of their business activities. In the event of bankruptcy, traders were potentially subject to severe sanctions for failure to comply. However, research carried out by Lemarchand (1994) has shown that the obligation on traders to keep books had no significant practical impact in the seventeenth and eighteenth centuries. Utilising 500 bankruptcy case files covering the period 1847 to 1887, contained in the archives of the Paris Court of Commerce, the paper sets out to investigate the impact of the legal obligation on traders’ accounting practices in a later period. The object is to shed light on the extent to which legislation influenced the diffusion of accounting practice in nineteenth-century France. The study offers insights to the divergences between accounting prescription and accounting practice.

News and Notes

News and Notes

Exclusivity for the Distribution of the iPhone: a Clarification of Vertical Restraints Analysis in France

In a judgment rendered on 16 February 2010, the French Supreme civil and commercial court, the ‘Cour de Cassation’, has overturned the decision of the Paris Court of Appeal on the provisional suspension of the exclusive distribution of the iPhone in France by the number one French mobile operator Orange, (Paris Court of Appeal, 4 February 2009, 1re Ch. H, Apple et France Telecom). The Paris Court of Appeal had confirmed the decision of the French Competition Council (hereinafter ‘the Council’) (Decision 08-MC-01, 17 December 2008) adopting interim measures aimed at allowing Orange's competitors to distribute Apple's product, a decision announced a few days before the 2008 end of year celebrations at the demand of one of Orange's competitors, Bouygues Télécom. The Council had held that the exclusivity granted to Orange was a core vertical restriction, capable of harming competition in the mobile telecommunications market. The Council first...

<i>Nachgotik</i> és kora barokk – Brózer István kelyhéről

The enamelled gold chalice made by the Kolozsvár goldsmith István Brózer is an emblematic and much-published work of Transylvanian goldsmithing. The communion cup made in 1641 was ordered by prince György I Rákóczi for the Calvinists of the Farkas street congregation, Kolozsvár. It is an outstanding relic not only for its material but also for the rich figural ornamentation of the cup. The narrative cycle depicts Christ's suffering from Easter Thursday to the Entombment. The graphic prototypes for the repoussé panels were 18 scenes in Adriaen Collaert's Passion published around 1610. The rich cloisonné and champlevé enamelling framing the scenes and covering the stem, node and foot attests to the experienced use of the cosses de pois decoration that evolved in the art of the Paris court in the 1630s. That was exactly where the master, István Brózer stayed during his peregrinations before reaching mastership. The modern decorative program of the cup is paired with a highly conservative composition. There are two main gothicizing trends in Transylvanian goldsmiths' art in the early modern age. One can be interpreted as survival, when pattern sheets, forms, workshop traditions continuously lived on – in Transylvania up to the first third of the18th century. The historicist, revival or renovatio trend represented by the Brózer cup is more prevalent in Central European goldsmithing. For the liturgical vessels made in rising numbers again from the end of the 16th century the pre-Reformation style of the late gothic was the model in the Kingdom of Hungary and in the Transylvanian Principality. István Brózer's chalice is almost the only high-quality goldsmith's piece testifying to the art patronage of the Transylvanian princely court.

On-line reselling and selective distribution networks: What can be learnt from the French experience?

Ever since the development of the Internet, the European Commission has welcomed that technology as providing opportunities for sellers and purchasers to conclude transactions above and beyond national borders within the European Union. That attitude has not always coincided with expectations of producers and distributors—particularly in situations where selective distribution systems were used. In such systems, distributors are selected, indeed, on the basis of conditions, which are often physical in nature—for instance the sort of facility used to commercialize products. The issue of Internet sales in the context of selective distribution systems is investigated by the European Commission, as the latter is currently reviewing the rules applicable to vertical restraints. In the course of that review, the Commission is confronted with cases and rules which have developed in between in France. The French competition authority is indeed probably ahead of other competition authorities in applying article 101 of the Treaty on the Functioning of the European Union (‘TFEU’), formerly article 81 of the EC Treaty, to Internet sales in the context of selective distribution networks. While the European Commission places this question at the heart of the debate in connection with the revision of the competition rules applicable to vertical agreements, the French competition authority has already issued several important decisions on this subject. The question was first of all, and on several occasions, raised in connection with commitment proceedings. Even if these proceedings, since they do not result in legal qualification but merely in the identification of ‘competition concerns’, cannot become a reference as a precedent, the far-reaching scope of the decisions remains undeniable. The question was then raised in the context of a court proceeding, in the Pierre Fabre case. Lastly, the Paris Court of Appeal has just recently referred a preliminary question to the European Court of Justice in connection with this same matter. The large number of decisions issued by the French competition authority is no doubt due to the fact that selective distribution, which is at the centre of the issue of Internet sales, is very common in France. This is, of course, due to the part that luxury goods, traditionally marketed through selective distribution networks, play in the French economy. Any challenge to selective distribution is therefore a sensitive issue. Moreover, many will remember the heated discussions and the disputes, including in courts, which arose several decades ago with the sudden emergence of large-scale distribution.

Comments on the Paris Court of Appeal Decision in SNF v. International Chamber of Commerce

With the purpose of protecting the users of International Chamber of Commerce (ICC) arbitration services, the Paris Court of Appeal found that the exclusion of liability clause provided under Article 34 of the ICC Rules is null and void under French law as it authorizes the arbitral institution not to perform its main contractual obligation to organize and administer the arbitration proceedings. Thus, the ICC may be found liable under French law for breaches of its obligations under its contractual relationship with the parties to the arbitration proceedings. However the reinforcement of the control exercised over the proper performance of the arbitral institution’s obligation is balanced by the fact that for the institution’s liability to be effective, there is an evidentiary issue which may be difficult for the parties to establish.

Comments on the Paris Court of Appeal Decision in Czech Republic v. Pren Nreka

In its September 25, 2008 decision in Czech Republic v. Pren Nreka, the Paris Court of Appeal held notably that in ad hoc arbitration under a bilateral investment treaty (BIT), the notion of “investment” must be interpreted in accordance with the terms of the BIT and is not subject to objective criteria or tests external to the BIT, while giving an extremely broad reading to language in a BIT defining an “investment” as “any kind of asset invested in connection with economic activities.” As discussed in the commentary below, this should revive the debate as to whether, in investment arbitration, a common and unified definition of the notion of “investment” should be applicable worldwide and before any arbitral tribunal.

International labour standards: Recent developments in complementarity between the international and national supervisory systems

Abstract.Far from competing against one another, the national and international systems of labour regulation are interlocked. ILO standards have been used in recent rulings by the highest jurisdictions of some countries. Examining two decisions by the Supreme Court of Canada and another by the Paris Court of Appeal, the authors clarify the circumstances in which national courts make use of these international sources of law and consequent legal implications. The cases involve proceedings before national courts and ILO bodies, and France and Canada also have different legal cultures, enabling a discussion of how national jurisdictions actually appropriate international labour standards.

The Status of Vacated Awards in France: the Cour de Cassation Decision in Putrabali

ON 29 JUNE 2007, the French Cour de cassation, the highest court in France, rendered a landmark decision in the Putrabali case.1 This decision is as significant in our view as the decision rendered in 1963 in the Gosset case, where the Cour de cassation admitted for the first time the principle of the separability of the arbitration agreement.2 Quite logically, the Putrabali decision has attracted a number of commentaries that are already published or will be published soon.3 The reason for this importance may be attributed to the fact that it was the first time that the Cour de cassation had to make a decision on the enforcement in France of awards set aside in the country of origin since the famous Hilmarton decisions. In fact, the reasons for this importance are more fundamental. Rather than merely endorsing the solution reached by the Paris Court of Appeal, and subsequently by the Cour de cassation, in the Hilmarton case and the subsequent cases, the Cour de cassation provided a firm theoretical foundation for this solution. The Cour de cassation, following a suggestion in French doctrine, has confirmed the existence of an arbitral legal order, distinct from national legal orders, by affirming that the award was ‘not anchored in any national legal system’. It also characterised the international arbitral award as an ‘international judicial decision’. This article will focus essentially on this second aspect by describing the Cour de cassation decision, analysing its legal foundations, and assessing its practical consequences. Following a brief overview of the facts of the underlying dispute in Putrabali , and of the decision of the French Court of Appeal, we will summarise the arguments put forward before the Cour de cassation and the solution given by that court. ### (a) Facts of the Putrabali Dispute and Decision of the Paris Court of Appeal The underlying dispute in the …

Tribunal Fédéral – Arrêt du Tribunal fédéral du 8 mars 2006 dans la cause 4P.278/2005: commentaire

<p>Much ado was made about the decision of the Swiss Federal Supreme Court declaring that competition law is not part of public policy pursuant to Art. 190 (2)(e) PIL Act. Too much probably. On the one hand, the present case did not offend EU competition law, which had been fully argued in the arbitration. The arbitral tribunal examined the arguments and found no violation of EU competition law. The losing party seems merely to have sought a review of the merits by the Supreme Court, which the latter is obviously not entitled to perform: Appeals on the merits, even if disguised as challenges of alleged public policy violations, are not available in any modern arbitration legislation. It would have been for the challenging party to show that competition law was violated and is part and parcel of the deliberately restrictive public policy grounds of Art. 190 PIL Act. The Supreme Court expressed incomprehension that, in its lengthy application, the challenging party did not spend more than five pages on this decisive issue (par. 1.2.3). It should also be noted that even in the EU, where a violation of EU competition law is, perhaps understandably, considered to be tantamount to a public policy violation, the argument of a purported violation cannot be raised without limitations. It must be raised <it>before the Arbitral Tribunal</it>. Failing timely argument, it is not for the state courts to interfere at the stage of a challenge of the award.</p> <p>In the well known precedent <it>Thalès v. Euromissile</it> (J.D.I.-Clunet 2/2005, p. 358), the Paris Court of Appeal refused to review an arbitral award that had purportedly failed to recognize that the contract underlying the arbitration was contrary to EU competition law and therefore void. In a similar case, the Paris Court upheld an arbitral award reminding the parties that ?La Cour, qui n’est pas le juge du procès mais de la sentence, n’exerce cette fois sur celle-ci qu’un contrôle intrinsèque puisque seule sa reconnaissance ou son exécution est examinée au regard de la comptabilité avec l’ordre public international.? The Court found that the Arbitral Tribunal had declared the contract between the parties to the arbitration void in light of EU competition law, that the issue had been fully pleaded in the arbitration, and that the challenge of the award was an inadmissible appeal on the merits (C. Paris, 1ère Ch., 23 March 2006, <it>SNCF v. Cytec Industries</it>, reported in Gazette du Palais / Cahiers de l?arbitrage No. 2006/1, p. 48).</p> <p>In light of these restrictions, the outcries of some self-declared champions of EU competition law against the decision of the Federal Supreme Court are somewhat surprising considering that the Court merely refrained from setting aside an award where the arbitral tribunal had fully examined the issue.</p>

Women's Medical Work in Early Modern France (review)

Reviewed by: Women's Medical Work in Early Modern France Toby Gelfand Susan Broomhall . Women's Medical Work in Early Modern France. Gender in History. Manchester, U.K.: Manchester University Press, 2004. viii + 288 pp. $64.95, £49.99 (0-7190-6286-1). Building upon Natalie Zemon Davis's pioneering studies and upon more recent work by Marjorie Green, Alison Klairmont Lingo, and others, Susan Broomhall explores the world of women in medicine in France during a very "long" sixteenth century (1460–1630). She considers nine contexts in as many chapters that might well stand as independent studies but that also form a complementary mosaic. Broomhall deals with women as medical practitioners within constraints imposed by male guilds of barber-surgeons and university medical faculties, and with female nursing in hospitals and domestic settings. Other chapters take up the medical knowledge accessible to and sometimes produced by women in the new medium of printed literature, female caregivers at royal courts, and women's intimate understanding of reproduction and birthing. Broomhall defines medical work broadly to include all activities related to health maintenance, such as providing food, tending to hygiene and basic necessities for families and neighbors, and nursing children, the elderly, and the indigent. At the risk of anachronism, she identifies women as "health-providers" and purveyors of "primary care," and she challenges her readers to accept "work" as comprising more than legally recognized and remunerative occupational status. Would women themselves, or those whom they aided, recognize as "medical" the tasks inspired by Christian charity or domestic duty? Assuming that they would leads Broomhall to describe her project as one that "decentralizes" (pp. 6–7) medical work, discourses, and historiography away from the customary focus on masculine actors and sources. Broomhall's study ranges from Paris to remote villages (and in one chapter, to the Bourbon princesses at the Spanish court) as she looks at a cross-section of French society from peasantry to royalty. Two case histories she has uncovered are particularly revealing: Isabelle Estevent of Reims, and Jeanne Lescalier of Anjou. In 1462 Isabelle Estevent's husband, an elderly master barber, decided to become a hermit, and willed his practice to his wife. The barber-surgeons' guild of Reims eventually managed to have this contract voided, but the affair occupied the courts [End Page 163] for two years. It remains unclear whether Isabelle herself worked as a barber-surgeon. Guild regulations had no such provision, but they did allow widows to lease a deceased husband's shop, tools, and clientele to a journeyman barber-surgeon known as a "privileged" surgeon. Probably Isabelle—although she was divorced, not widowed—wished to retain this privilege for her son, who eventually entered the guild. In any case, the significance of the episode lies in the rich evidence afforded the historian of one woman's claims and the guild's counterclaims. The Lescalier case, a century later, pitted Jeanne Lescalier against the physicians of Angers in a legal battle lasting more than ten years and reaching the highest Paris court. Here there was no doubt that the woman enjoyed a flourishing practice as a herbalist and healer. Although she too ultimately lost her case, with mitigating circumstances, her lawyer capably defended her, making good use of patients' testimonies, while the physicians' advocate sought unsuccessfully to brand her as a witch. Broomhall contends that the hands-on experience of women medical workers—whether illiterate peasants, nuns, children's caregivers, or royal midwives of the stature of Louise Bourgeois—gave them an advantage over learned male practitioners. The argument by epistemology works best when women practitioners are contrasted with university physicians. It is less satisfactory with respect to barber-surgeons or apothecaries, who, as Broomhall demonstrates, typically instructed their wives and other family members, or at least gave them opportunities to learn their craft. On the other hand, during this period medical guilds had increasing success in regulating unlicensed practitioners, including women, and prosecuting offenders. This study is a model of careful historical research. Cautious suggestions and nuanced reasoning are everywhere in evidence. Rather than a formal conclusion, Broomhall ends with an "afterword" calling for ongoing discussion. She makes a strong case for the...