On 2 April 2003, the Court of Appeal in Paris handed down an interesting judgment in relation to the production of documentary evidence in arbitration proceedings which departed from the current trend in French case law.

Article 145 of the New Civil Procedure Code grants jurisdiction to a judge in chambers to make an order for directions in a contractual dispute before the matter has been referred to the relevant arbitral body, notwithstanding that the contract in dispute contains a clause specifying that an arbitral tribunal is to have exclusive jurisdiction. The jurisdiction conferred by this Article has been used frequently by judges, particularly in urgent cases, to grant interim directions including, notably, the commissioning of an expert's report.

The 2 April 2003 case concerned a contract governed by New York law which contained an express provision that the arbitral tribunal was to have exclusive jurisdiction to rule on evidential issues including disclosure. The court decided that the wording of the clause and therefore the intentions of the contracting parties ought to prevail over Article 145 of the New Civil Procedure Code.

This judgment of the Court of Appeal of Paris shows a growing tendency of the French courts to heed the intentions of the contracting parties with regard to dispute resolution provision. As we reported in the June 2003 issue of this newsletter, the Cour de Cassation (French Supreme Court) came to a similar conclusion on 14 February 2003 in relation to mediation. In this case, the Judge declined to hear the dispute at all on the basis that the contract contained a clause providing for a mandatory reconciliation procedure. In light of this clause, the Judge considered that it would be contrary to the parties’ desires for the Court to hear the case.

Both decisions illustrate that parties should take considerable care when drafting dispute resolution clauses as it is wholly within their power to define how a future dispute will be managed. A decisive advantage in the conduct of proceedings can be obtained from careful consideration of the contractual provisions.

Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.