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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 or an individual in the United States or elsewhere outside France may contemplate bring an action against its French partner (commercial customer,  spouse, etc.) in a court in a non-French jurisdiction.. If the jurisdiction of the non-French court is based upon a prior agreement between the parties, subsequent exequatur of a money or other 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 non-French court will generally determine if it has jurisdiction over the French respondent by applying the "long-arm" statute applicable in the jurisdiction where the suit is brought.

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

If the French respondent litigates the issues in the non-French court without challenging the jurisdiction of the non-French court, exequatur of the non-French judgment is generally straight forward and not particularly expensive.

However, the non-French court is in a country outside the European Union and if the French respondent took the precaution of challenged the jurisdiction of the non-court in its initial responsive pleadings,  exequatur of the non- judgment in France might be refused. The inability of the non-French plaintiff to obtain exequatur may occur even if the French respondent participated in the trial and the non-French 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unless a France physical person or entity has expressly or implicitly waived this provision or Article 15 has been superseded by treaty (such as the Brussels Convention) or French internal law (e.g., certain matters relating to divorces), French courts may not grant exequatur of a decision of a non-French court. Recent decisions of the 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 non-French 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 its 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.)