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Enforcement of Judgments

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Enforcement of Judgments GLOBAL PRACTICE GUIDE FRANCE Definitive global law guides offering comparative analysis from top ranked lawyers LAW AND PRACTICE: p.2 Contributed by De Pardieu Brocas Maffei The ‘Law & Practice’ sections provide easily accessible information on Enforcementnavigating the legal system when conducting of business in the jurisdic- tion. Leading lawyers explain local law and practice at key transactional Judgmentsstages and for crucial aspects of doing business. TRENDS AND DEVELOPMENTS: p.14 Contributed by ALTANA The ‘Trends & Developments’ sections give an overview of current trends and developments in local legal markets. Leading lawyers ana- France: Law & Practice lyse particular trends or provide a broader discussion of key develop- ments in the jurisdiction. De Pardieu Brocas Maffei chambers.com FRANCE LAW AND PracTICE Law and Practice Contributed by De Pardieu Brocas Maffei Contents 1. Identifying Assets in the Jurisdiction p.3 1.1 Options to Identify Another Party’s Asset Position p.3 2. Domestic Judgments p.4 2.1 Types of Domestic Judgments p.4 2.2 Enforcement of Domestic Judgments p.4 2.3 Costs and Time Taken to Enforce Domestic Judgments p.6 2.4 Post-judgment Procedures for Determining Defendants’ Assets p.6 2.5 Challenging Enforcement of Domestic Judgments p.6 2.6 Unenforceable Domestic Judgments p.6 2.7 Register of Domestic Judgments p.6 3. Foreign Judgments p.7 3.1 Legal Issues Concerning Enforcement of Foreign Judgments p.7 3.2 Variations in Approach to Enforcement of Foreign Judgments p.7 3.3 Categories of Foreign Judgments Not Enforced p.7 3.4 Process of Enforcing Foreign Judgments p.7 3.5 Costs and Time Taken to Enforce Foreign Judgments p.8 3.6 Challenging Enforcement of Foreign Judgments p.8 4. Arbitral Awards p.9 4.1 Legal Issues Concerning Enforcement of Arbitral Awards p.9 4.2 Variations in Approach to Enforcement of Arbitral Awards p.9 4.3 Categories of Arbitral Awards Not Enforced p.9 4.4 Process of Enforcing Arbitral Awards p.9 4.5 Costs and Time Taken to Enforce Arbitral Awards p.10 4.6 Challenging Enforcement of Arbitral Awards p.10 2 LAW AND PracTICE FRANCE De Pardieu Brocas Maffei was founded in 1993 and is one fore French civil, commercial, criminal and administra- of the leading Paris-based business law firms with an in- tive courts, European courts and arbitral tribunals, and in ternational reach. The firm currently has 150 lawyers, in- disciplinary, investigatory and legal proceedings initiated cluding 35 partners. The Dispute Resolution team advises by French administrative authorities. The team also has companies and their management throughout all phases significant experience in litigation relating to international of the dispute resolution process, representing clients be- matters. Authors Barbara Levy is a partner at the firm and Alison Vogt is an associate who specialises is active in the fields of industrial in litigation, particularly commercial and litigation, intellectual property law, civil disputes. She has been a member of contract and distribution law, the Paris Bar since 2014, and holds a international litigation, arbitration and Master’s degree in general private law enforcement proceedings. She represents from the University of Panthéon- French and foreign companies in various sectors, including Sorbonne - Paris I (2013) and a Graduate Diploma in telecommunications, luxury goods and retail, and European law (2011). automotive. Barbara has been a member of the Paris Bar since 1990, and holds an advanced degree in international Paul Talbourdet specialises in real estate private law from the University of Paris II Panthéon-Assas, investment and complex real estate with a specialisation in international commercial structurings (especially commercial arbitration. She is a member of the IBA, the INTA and the leasing); he also focuses on litigation, Women’s Forum. insolvency law and insurance. He is a partner at the firm, and manages the Dispute Resolution team and the Real Estate team. He has been a member of the Paris Bar since 1992. Paul graduated from ESCP and holds a Master’s degree in private law from the University of Paris II Panthéon-Assas. 1. Identifying Assets in the Jurisdiction databases of the French National Institute of Industrial Prop- erty (“INPI”). 1.1 Options to Identify Another Party’s Asset Position In addition, as a matter of principle, court proceedings in There are several public registers that may be useful for iden- France are public, and many trial court decisions are report- tifying the asset position of another party prior to enforce- ed on www.legifrance.gouv.fr. It may therefore be possible ment. to find useful information about a debtor by scrutinising judicial decisions. For instance, judgment creditors wishing to identify their debtor’s real estate assets in France may turn to the real estate Judgment creditors may also hire a private investigator to registry (“registre de la publicité foncière”), which holds own- gather information on the debtor’s asset position. ership information for real estate in France. If the information collected by the means listed above is The register of commerce (“registre du commerce et des socié- incomplete and/or insufficient, there are other means by tés”) is available at www.infogreffe.com and identifies the which a party can lawfully identify another party’s asset posi- directors of registered companies. The register also identifies tion within France, by entrusting the task to a French bailiff the shareholders who are liable for the company’s debts to (“huissier de justice”). an unlimited extent (“Société civile immobilière” and “Société en nom collectif”), and can be used to check the debt report French law allows bailiffs to make information requests to a (privileges and pledges) of a company and whether a corpo- wide range of public bodies and bodies authorised by French ration faces bankruptcy proceedings. law to hold deposit accounts (this is done along with access to the FICOBA registry, which is an inventory of all deposit All French trade marks, patents, registered design applica- accounts in France). tions and registrations are publicly available on the online 3 FRANCE LAW AND PracTICE The bailiff is not allowed to request information from the Another useful distinction can be drawn between (i) judg- presumed debtor’s employer. ments rendered on the substance of the case, which rule on all or part of the merits, or on a procedural exception (eg, Public bodies may only disclose the address of the debtor, the the means by which the interested party or occasionally the identity and address of his or her employer, or all third-party court sua sponte, under conditions provided by law, and debtors or custodians of liquid or payable amounts, and a list without regard to the merits of the claim, challenges the pro- of real estate assets. cedural irregularities or deficiencies of the right of action), and (ii) interim or provisional judgments, which involve no Organisations authorised by French law to hold deposit prejudgment of the decision on the merits and are devoted accounts may only disclose whether one or more accounts, to preserving a situation of fact or of law, or evidence, or to joint accounts or merged accounts have been opened in the ensuring that the ultimate judgment in a case will be capable name of the debtor, and where the accounts are held. of being enforced. Normally, the information collected will be sufficient to The key distinction is between enforceable and unenforce- identify the debtor’s asset position and enforce a judicial able judgments. In principle, judgments will be enforceable decision. Details obtained by the bailiff may not be disclosed after all ordinary rights of appeal have been exhausted or to third parties, or even to the bailiff’s principal. after the expiry of the relevant time limitations. By way of exception, summary orders (“ordonnances de référé”), deci- Costs associated with these enquiries are fixed by statute (see sions containing provisional orders (“mesures provisoires”) below). governing the course of a proceeding, orders providing for protective measures (“mesures conservatoires”) and direc- tions of the pre-trial judge (“juge de la mise en état”) grant- 2. Domestic Judgments ing an interim payment (“provision”) to a creditor will all be enforceable provisionally by law. In addition, provisional 2.1 Types of Domestic Judgments enforcement may be ordered at the request of the parties Under French law, different types of domestic judgments or sua sponte each time the judge deems it appropriate and are available. compatible with the nature of the matter, and where it is not prohibited by law. Enforcement may be ordered for the French scholars usually draw a distinction between judicial whole or part of the judgment. decisions that have become final after all rights of appeal have been exhausted or after expiry of relevant time-limita- An “enforceable judgment” is referred to in French legisla- tions, and those that have not become final. tion as a “titre exécutoire”. The term is not limited to enforce- able judgments resulting from judicial proceedings. The fol- In addition, a judgment may be contentious or non-conten- lowing are considered to be the main “titres exécutoires”: tious (“jugement gracieux”) – a contentious judgment settles a dispute whereas a jugement gracieux is rendered in non- • judgments of the judicial order or administrative order contentious matters. that are immediately enforceable; • foreign acts and judgments and arbitral awards declared French scholars also make a distinction between judgments enforceable by a decision that is not susceptible of being rendered by adversarial hearing (“jugements contradictoires”) suspended pending appeal; – ie, in the presence of both/all parties concerned and after • settlements made between a judge and the parties; both/all parties have presented their cases – on the one hand, • notarial acts endorsed as being enforceable; and and judgments assumed to have been rendered by adversarial • certificates provided by bailiffs following non-payment of hearing (“jugements réputés contradictoires”) and judgments a cheque.
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