FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
4.7 Application/Motion Timeframe The pre-trial judge provides a timetable for the parties to organise their submissions. However, the duration is extremely variable depending on the case and procedural exceptions raised. By way of exception, during the first hearing, if there is an emergency or if the case is ready to be judged, the pre-trial judge can send the par- ties immediately to trial, which is called the short route ( circuit court ). The parties may conclude a procedural agree- ment called a convention participative de mise en état , in which they undertake to work jointly and in good faith for the preparation of the final hearing. This agreement, recorded in a private deed countersigned by the parties’ lawyers, entails waving any dispositive motion, except those that may be revealed after the agreement. The parties who enter into such agreements are granted hearings in advance. 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 deter- mined by the parties will be subject to a separate judgment. 5. Discovery 5.1 Discovery and Civil Cases “Discovery” as understood in common law juris- dictions 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 gen- eral 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 relevant facts supporting their respec- tive claims. Contrary to common law, French law combines both adversarial 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 nec- essary and relevant evidence. The evidence is either “free” (for example, in commercial 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 compelled to provide evidence against one’s own interests” prevailed for a long time but is now tempered by Article 10 of the Civil Code, which states that “everyone is required to lend aid to the court so that the truth may be revealed”. Nowadays, by virtue of the adversarial principle supervised 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
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