COMPETITION • FRENCH LAW • RESTRICTIVE PRACTICES
Both French law (Code of Civil Procedure, Art. 48) and European Union law (Regulation No 1215/2012, Art. 25) allow the parties to derogate from the default rules of territorial jurisdiction and to confer jurisdiction on the court of their choice to hear disputes that may arise in the course of their relationship. Do such clauses apply to disputes based on the provisions of Article L. 442-1, II (formerly L. 442-6, I, 5°) of the Commercial Code?
In purely domestic disputes, it has been argued, sometimes successfully, that because the action is in tort or delict, the jurisdiction clause does not apply. Then, in order to arrive at the same conclusion, the case law relied on the insufficiently broad wording of certain clauses. This restrictive approach has now been abandoned and the courts no longer exclude jurisdiction clauses on principle. However, such clauses must still be consistent with the rules of public policy relating to the specialized competence of the French courts. The Court of Cassation thus excludes the application of a jurisdiction clause that designates a court not covered by Articles D. 442-3 and D. 442-4 of the Commercial Code. In such cases, in order to determine which court is competent, the ordinary rules of jurisdiction must be applied, before defining the jurisdiction of the Court of Appeal with territorial jurisdiction and identifying the specialized court located within the jurisdiction of that court. On the other hand, some trial judges recognize the full effect of a jurisdiction clause which designates one of the eight specialist courts, even if the place where the damage was sustained is within the jurisdiction of another specialized court, provided that the requirement of specialization is respected.
In international disputes, the courts consider that the court designated by the clause has full jurisdiction, if that clause is in compliance with Article 25 of Regulation No 1215/2012, with the onus on it to enforce, where relevant, the public policy provisions of Article L. 442-1, II of the Commercial Code.
