FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
The timeframe of a trial can vary significantly based on factors such as the number of parties involved, the complexity of the case, and the need for expert opinions or additional procedural steps. However, the average time between the start of the proceedings and the final hearing is typically between one and two years. 1.3 Court Filings and Proceedings As a matter of principle, trials are held in public and judgments are issued in public. There are lim- ited exceptions where secrecy is required to protect certain interests – eg, issues involving minors, fam- ily matters such as divorce, some insolvency-related proceedings or when privacy or commercial secrecy are at stake. Court filings are not accessible to the public. 1.4 Legal Representation in Court With limited exceptions, only qualified attorneys may represent parties. The right of appearance is extended to attorneys who are registered with a European Union State Bar. Lawyers who are qualified in a non-EU state must pass a special exam. In certain cases, such as labour disputes or small civil claims, a party may be represented by a person who is not a lawyer. Third-party litigation funding is new in France and, except for international arbitration, is still undeveloped compared to countries such as the United Kingdom, Germany or Australia. This might be explained partly by the fact that, besides the lack of punitive damag- es, litigation in France is less costly and class actions have a limited scope. So far, third-party funding remains unregulated and relies on general principles of French law and lawyers’ ethical rules, including: • contractual freedom (Article 1102 of the Civil Code); 2. Litigation Funding 2.1 Third-Party Litigation Funding
• freedom of payment (Article 1342-1 of the Civil Code); and • lawyers may only collect fees from their client “or from their client’s agent”, as provided in Article 11.3 of the Règlement Intérieur National (French lawyers’ code of conduct). Interpretation of Third- Party Funding in France In the absence of a specific legal framework, schol- ars and legal professionals have discussed whether third-party funding agreements could be construed as loans. Since the banking sector is heavily regulated in France and only duly authorised financial institu- tions may grant loans on a regular basis, such an interpretation would restrict the growth of third-party litigation funding. Therefore, it would be unlikely for French courts to construe third-party litigation fund- ing agreements as loans, since the “repayment” of the “loaned” sums is only incurred in the event of a favour- able outcome, whereas the repayment of an actual loan is always incurred. To a lesser extent, legal literature has also considered whether third-party funding could be construed as a form of betting (also a heavily regulated business in France) but has concluded the opposite, since it is not essentially speculative in nature. The French Supreme Court has not yet ruled on the matter. Concerns Over Legal Obligation, Privilege and Arbitration Both the National Council of Bar Associations and the Paris Bar Association have welcomed the devel- opment of third-party funding, which they see as a positive development for access to justice. They have also emphasised that lawyers owe ethical obligations solely to their client (ie, the funded party) and not to the funder, which means that: • they should not take any instruction from the funder regarding the proceedings; and • they may not disclose any privileged information to the funder. Legal privilege under French law cannot be waived by the client; if clients wish to disclose to the funder any privileged information related to the proceedings, they
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