FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
7.7 Level of Intervention by a Judge Judges’ interactions with parties and their lawyers, when cases have come to trial, have increased in recent years. In the past, only criminal trials involved a thorough interaction, but this is now frequent in all types of courts, especially in commercial courts where judges often ask precise questions, albeit only on the points they deem useful. Judgments are generally rendered around two to three months after the hearing. 7.8 General Timeframes for Proceedings Proceedings on the merits of a dispute generally take one to two years to be decided by most courts. There can be accelerated proceedings on the merits (called jour fixe , bref délai or procédure accélérée au fond ) upon evidence of an emergency. In such cas- es, the hearing for oral arguments takes place a few weeks or months after the delivery of the initial writ. Parties can settle at any time, including after a judg- ment has been rendered. Settling is not possible for issues related to public order or non-pecuniary rights, such as the capacity of the persons, citizenship, filia- tion, professional sanctions for personal bankruptcy, etc. Although possible, court approval is not required to settle a lawsuit. 8.2 Settlement of Lawsuits and Confidentiality A non-disclosure clause can be included in the agree- ment. 8. Settlement 8.1 Court Approval 8.3 Enforcement of Settlement Agreements Parties can ask the judge to certify the settlement agreement to ensure its enforceability. The parties can appeal against the refusal of the court. Settle- ments shall be enforceable when countersigned by the lawyers of each of the parties and endorsed by the clerk of the court.
8.4 Setting Aside Settlement Agreements In order for a settlement to be valid, parties must make mutual concessions, in addition to classic conditions applicable to all contracts (ie, consent of the parties, contractual capacity, lawful and specific content). If those conditions are not met, the trial judge may declare the settlement null and void, even if it has been probated. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant Forced execution in kind has been the principle since 2016. When execution in kind is impossible, the judge may consider awarding damages to compensate the prejudice caused. In addition, litigants can ask the judge to order the losing party to pay the legal costs, including legal fees. 9.2 Rules Regarding Damages The main rule for damages is full compensation, meaning that the claimant may only receive the exact compensation for the damage suffered, without any kind of personal gain. This principle applies to con- tract law, where only the damage that could have been foreseen at the time of the contract’s conclusion may be compensated. Therefore, punitive damages, most- ly accepted in common law, do not exist in French civil law. However, the parties to a contract may decide to insert a penalty clause ( clause pénale ), applicable in case of breach of contract and upon formal notice by the other party. Only the judge can either moderate or increase such a clause if its amount is manifestly excessive or too low compared to the damage suf- fered. In certain instances, such clause may be con- sidered abusive (such as in residential lease agree- ments or consumer disputes). In principle, evidence of direct, personal and certain damage must be provided in order for an injury to be recoverable. Therefore, prospective damages (which could never materialise) are not compensated. How- ever, the boundary between certain and uncertain is not always easy to draw. Damages resulting from a
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