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20.11.2015

Recent case law on civil procedures – Update on territorial jurisdiction regarding expedited appraisal proceedings and the application of contractual jurisdiction clauses

Decision of the second commercial division of the French Court of Cassation rendered on 15 October 2015, N°14-17564

In this decision of 15 October 2015, the second commercial division of the French Court of Cassation refers to the territorial jurisdiction rules regarding expedited appraisal proceedings in the context of a request for the assignment of a court appraiser.

In a litigation strictly limited to France, a court appraiser can be assigned by:

  • either the presiding judge of the court potentially having jurisdiction on the merits of the case;
  • or the presiding judge of the court within whose jurisdiction the requested appraisal measures are to be, even partially, performed.

This well-established case law thwarts the automatic application of potential jurisdiction clauses contained in contracts or in the companies’ general terms and conditions of sale or purchase, considering that the claimant can choose between these two jurisdictions when filing his request, even if the court within whose jurisdiction the appraisal measures are to be performed is not mentioned in the contract.

An example: a contract or general terms and conditions stipulate that any and all litigations between the parties shall be settled by the Commercial Court of Paris. A fire occurs in Marseille, which requires the assignment of a court appraiser to establish its cause.

The party requesting the assignment of a court appraiser can do so before the Commercial Court of Paris, as stipulated in the contractual jurisdiction clause (provided this clause is admissible and valid), as the court potentially having jurisdiction over the merits of the case.

But it can also file its request before the Commercial Court of Marseille, within whose jurisdiction the damage occurred and the appraisal measures are to take place, objections on the basis of  the contractual clause not being possible at this stage of the proceedings.

However, the mere fact that the Commercial Court of Marseille has jurisdiction to assign a court appraiser does not mean that it will also have jurisdiction to subsequently rule in the proceedings on the merits, which will deal with the specific question of liabilities.

Note on European law: Jurisdiction clauses are treated in the same manner in litigations involving a  foreign party at the stage of summary proceedings, despite the fact that article 25 of the Brussels Regulation N°1215/2012 (on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) stipulates the primacy of jurisdiction clauses over any other grounds for jurisdiction. Again, this luckily does not mean that a French court having assigned a court appraiser will automatically have jurisdiction over subsequent proceedings on the merits. However, to avoid any difficulties, it is recommended to reserve the possibility of subsequently contesting the jurisdiction of French courts, by indicating so in the summary pleadings filed to the – French – court seized for the assignment of an appraiser.

Solène Marais

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