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Jonathon Wise Polier
Member of the Bars of New York State and Paris (France)
4 rue de Marignan
75008 Paris

Telephone: (33) 1 47 23 41 51
Fax:  (33) 1 47 23 37 93

E-Mail: j-polier@paris-law.com
http://www.paris-law.com

At times, a company in the United States may contemplate bring an action against its French partner (customer) in a court in the United States. If the jurisdiction of the American court is based upon a prior agreement between the parties, subsequent exequatur of a money judgment is generally available within the French judicial system. (A sample legal opinion successfully used in proceedings before the Supreme Court of the State of New York is available for consultation click here.)

However, in the absence of a prior agreement between the parties, the American court will generally determine if it has jurisdiction over the French company by applying the "long-arm" statute applicable in the jurisdiction where the suit is brought.

Assuming that jurisdiction over the French company is based upon the applicable "long-arm" statute and the French company does not satisfy subsequent the money judgment, counsel to the American company may wish to obtain exequatur of the money judgment in France. 

If the French company litigated the issues in the American court without challenging the jurisdiction of the American court, exequatur of the American money judgment is generally straight forward and not particularly expensive.

However, if the French respondent took the precaution of challenged the jurisdiction of the American court in its initial American responsive pleadings,  exequatur of the American money judgment in France will be refused. The inability of the American creditor to obtain exequatur will occur even if the French respondent participated in the trial and the American appellate proceedings.

Since the time of Napoleon I^ST, Article 15 of the French Civil Code contains the following sentence:  

Until 2006, French case law interpreted Article 15 to mean that French courts have exclusive jurisdiction over matters involving a French citizen, including legal entities as well as physical persons. Thus, unless a France physical person or entity has waived this provision or Article 15 has been superseded by treaty or French internal law (e.g., certain matters relating to divorces), French courts will not grant exequatur of a decision of a court in the United States. A recent French Supreme Court (Cour de cassations) appears to have significantly limited the protection afforded to French citizens by application of article 15. Thus, if sufficient contacts exist with a different jurisdiction, article 15 may not be any longer a bar to exequatur. 

There also are numerous areas where France treaties have superseded Article 15. 

As indicated above, waiver by a France physical person or entity of his/its Article 15 protection often occurs in a written contract. It is also possible to tacitly waive Article 15 protection, if the American company has adequately managed the "battle of the forms", the exchange of general terms of purchase or sale and the order confirmation containing adequate and clear references to previously communicated general terms of purchase or sale. But, reliance on such exchanges involves the risk that the French company may claim that it did not tacitly accept the American partner's attribution of jurisdiction clause. Thus, it is best to have a clear written agreement or at least the signature of the President of the French company on a copy of the  general terms of purchase or sale. 

(For information on service of process in France - click here.)