FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
president of the commercial court, provided there is some emergency or an existing dispute with no serious challenge to it. • Several specific cases depend on the party’s intended purpose: (a) the conservatory injunction ( référé conserva- toire ), when there is a serious challenge but there is a need to prevent imminent damage or an obviously unlawful disorder; (b) the interim payment injunction ( référé provi- sion ), under which the interim judge can award provisional compensation to a party when a debt cannot be seriously questioned; (c) the injunction order ( référé injonction ), which is useful for consumer protection and in contract law; or (d) the probative injunction ( référé probatoire ). • Even faster in the case of an extreme emergency, “from hour to hour” interim relief proceedings ( réfé- ré d’heure à heure ) involve parties appearing before the interim relief judge, even during public holidays or non-working days, either in the hearing room or at the judge’s residence with opened doors. 6.3 Availability of Injunctive Relief on an Ex Parte Basis In France, injunctive relief can also be obtained on an ex parte basis (ie, without notice to the respondent and without the respondent being present). It is an order upon a party’s motion ( ordonnance sur requête ) and is a non-adversarial process. The claimant seeks to surprise the respondent by using this method. However, an adversarial debate shall take place if the other party seeks the retraction of the order. 6.4 Liability for Damages for the Applicant If the defendant later successfully discharges the injunction (requesting the lifting of the conservatory attachments or appealing and overturning the référé order), the boomerang effect could be harsh, and the applicant could be held liable for the damages suffered by the respondent. Therefore, the applicant would have to: • reimburse the sums they provisionally obtained; • compensate for all the harmful consequences; • sometimes pay all the legal fees; and
• potentially be sentenced to pay damages for abu- sive proceedings. That is why the provisional measures are said to be “at the risk and expense of the applicant”. As a result, the applicant can be required to provide securities (a deposit, a guarantee or a security) in some instances. The respondent can avoid provisional enforcement from the applicant by lodging cash or securities them- selves (a bank guarantee for the amount of damages would suffice to lift a provisional attachment). 6.5 Respondent’s Worldwide Assets and Injunctive Relief In principle, injunctive relief is ordered by the judge where the measure is enforced. On an exceptional basis, it can also be granted against assets of the respondent located in foreign countries, under certain conditions (if the precautionary attachment is brought at the same time against the debtor’s assets both in France and abroad). 6.6 Third Parties and Injunctive Relief Like the compulsory production of documents located in the hands of a third party, provisional measures can also be obtained against third parties (for example, a provisional attachment on the wages of a defend- ant might be enforced directly in the hands of their employer). 6.7 Consequences of a Respondent’s Non- Compliance If a respondent fails to comply with the terms of an injunction, there is no such thing as contempt of court but the respondent may incur punitive measures, called penalty payments ( astreinte ).
7. Trials and Hearings 7.1 Trial Proceedings
Proceedings differ, depending on each type of juris- diction. A common characteristic is that proceed- ings start with the filing of a writ (or a form in certain instances), followed by the exchange of written sub- missions and evidence by the parties before a hearing where oral arguments take place.
339 CHAMBERS.COM
Powered by FlippingBook