Qivive achieves an important litigation success before the French Commercial Court
We are pleased to have achieved an important success in proceedings before a French commercial court.
The central issue was whether a so‑called référé-provision – that is, a French summary interim proceeding for provisional payment – is to be classified as a provisional measure within the meaning of Art. 35 Brussels Ia Regulation. Had this been answered in the affirmative, the French court could have affirmed its jurisdiction despite the jurisdiction clause in favour of the German courts.
This was particularly relevant here because, in the context of a référé-provision, French courts often apply French law even if the contract is governed by German law. For our client, the safest option was therefore to obtain a dismissal of the application on the grounds of lack of jurisdiction.
The court followed our line of argument and declared that it lacked jurisdiction. It clarified that measures under Art. 35 Brussels Ia Regulation exist only where, on the one hand, they are purely provisional in nature and, on the other hand, they have an actual connection with the territorial jurisdiction of the court seised.
The court denied that these requirements were met in the present case:
- The requested advance payment was not sufficiently secured, as the applicant had not offered any repayment guarantee.
- Moreover, there was no evidence that the opposing party had any assets within the territorial jurisdiction of the French court at all. Since the jurisdiction clause in favour of the German courts was undisputed, the French court referred the dispute to the competent German judiciary.
Our team
The matter was led by Edith Aupetit and Gordian Deger, with support from Jeanne Faymonville (on procedural objections), Nina Sadoune and Caroline Reneaume (on the substantive law aspects of the dispute), as well as Dr Christophe Kühl (for the oral hearing).
