FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
proceedings. There are two types of procedural agree- ments: • the instruction conventionnelle simplifiée , which gives the parties flexibility in setting deadlines; and • the procédure participative de mise en état , which is more formal and must be countersigned by the parties’ lawyers. The parties who enter into such agreements are grant- ed hearings in advance. If such agreements are not reached, the pre-trial judge provides a timetable for the parties to organise their submissions. However, the duration is extremely vari- able, depending on the case and procedural excep- tions raised. By way of exception, during the first hear- ing, if there is an emergency or if the case is ready to be judged, the pre-trial judge can send the parties immediately to trial, which is called the short route (circuit court). In 2023, the government created a new tool in the hands of the pre-trial judge, enabling parties to split the proceedings. The parties can agree on which claims are ready to be tried. In such case, they ask the pre-trial judge to partially close the pre-trial phase, so the claims determined by the parties will be subject to a separate judgment. 5. Discovery 5.1 Discovery and Civil Cases “Discovery” as understood in common law jurisdic-
vant facts supporting their respective claims. Contrary to common law, French law combines both adver- sarial and inquisitorial systems, where the judge plays an active role in trying to reveal the truth during the preparatory phase ( mise en état ) so that the trial can be judged with the necessary and relevant evidence. The evidence is either “free” (for example, in commer- cial or criminal matters) or “legal” (only certain types of proof are admissible under strict legal criteria – eg, written proofs or testimonies). In France, the principle that “one should not be com- pelled to provide evidence against one’s own inter- ests” prevailed for a long time but is now tempered by Article 10 of the Civil Code, which states that “eve- ryone is required to lend aid to the court so that the truth may be revealed”. Nowadays, by virtue of the adversarial principle super- vised by the judge (who guarantees the fairness of the proceedings), each party must give its arguments and exhibits spontaneously and in due course. Moreover, a party can also be compelled – on the other party’s demand and on a judge’s injunction if needed – to provide some useful elements for the resolution of the dispute, even against its own interests. Therefore, the judge can force either a party or a third party to provide evidence, and will ensure it is shared in due course so that the parties can prepare their defence. The judge can also go even further, ordering civil investigation measures ( mesures d’instruction ), like expertise or the hearing of witnesses. These measures are subject to strict requirements: the requesting party must demonstrate sufficient con- nection with the dispute, precisely identify the subject of the request and explain its necessity, as the judge shall not make up for a party’s deficiency in providing evidence. For instance, the judge may order in futurum investigative measures (ie, pre-trial measures), pro- vided such measures meet various conditions (having a legitimate ground, being sought before trial, being proportionate to the aim pursued and seeking proofs upon which the resolution of the dispute depends). Recent Supreme Court case law confirms a balanc- ing test: even unlawfully or unfairly obtained evidence may be admitted where it is indispensable to the right
tions does not exist under French law. 5.2 Discovery and Third Parties There is no discovery from third parties. 5.3 Discovery in This Jurisdiction
As “discovery” does not exist under French law, there is no applicable information about a general approach to discovery in this jurisdiction. 5.4 Alternatives to Discovery Mechanisms In French civil proceedings (broadly defined as non- criminal proceedings), the parties must prove the rele-
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