When contemplating impleading a French respondent, non-French legal counsel needs to understand how to assure proper services of process pursuant to the November 15, 1965 Hague Convention.
Service of Process in France – the Important Issues:
When a corporation or physical person located outside or within Western Europe (the “Non-French Plaintiff”) contemplates bring a legal action again a corporation or physical person located in France (the “French Defendant”), legal counsel of the Non-French Plaintiff will need to advise his client as the relative advantages and disadvantages of bringing the action outside France or in France.
Assuming that the decision is made to commence the proceeding before a court located outside France, it is important that service of process be effected in France a timely manner to avoid an issue of litis pendence (an issue discussed below).
The purpose of this note is to assist non-French legal counsel for a Non-French Plaintiff in avoiding certain common pitfalls with respect to service of process in France.
Service of Process Options
The November 15, 1965 Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters should be reviewed with care.
Article 5 of the convention sets forth the non-exhaustive options for service of process:
Article 5
Subject to subparagraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily. If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed. That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document. |
A copy of the Hague Convention can be consulted at: http://www.admiraltylawguide.com/conven/serviceabroad1965.html
While the Hague Convention permits service by government-to-government, Article 5 (b) permits service of process in the manner proscribed in the the laws of the country where service is to be effected. As any Central Authority (government-to-government) services are generally slow and and the feedback even slower, it is may be prudent to effect service of the papers in France using a French huissier (a French bailiff).
Legal counsel of the Non-French Plaintiff is accustomed to selecting and working with French huissiers (French bailiffs), the use of local French counsel may be a justified added expense.
Second Service of Process Option
Article 10 of the November 15, 1965 Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters provides a second, non-exclusive option for service of process:
Article 10
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Thus, it is possible to use a French process server without using the services of the Central Authority. This second alternative permits off-shore lead counsel and such counsel’s local French counsel to avoid a number of potential defects in service of process in France which may otherwise go unidentified until exequatur is sought may years and tens of thousands of dollars later.
It is our firm’s experience that 90% of summons prepared by able off-shore legal counsel contain omissions which leave them open to attack in an action in exequatur. Thus, the participation of French counsel in the preparation of any summons and complaint is recommended.
Language of Documents and Translations
Assuming that the original summons is not in French, it is recommended that a translation be attached, as the French Defendant may otherwise successfully claim that the service was not valid by invoking the terms of Article 688-6 of the French “Code of Civil Procedure”.
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Code de Procedure Civil – Article 688-6
L’acte est notifié dans la langue de l’Etat d’origine. Toutefois le destinataire qui ne connaît pas la langue dans laquelle l’acte est établi peut en refuser la notification et demander que celui-ci soit traduit ou accompagné d’une traduction en langue française, à la diligence et aux frais de la partie requérante. |
Code of Civil Procedure – Article 688-6
The process shall be notified in the language of the originating State. Notwithstanding the above, the addressee who does not know the language in which the process is drawn may refuse the notification thereof and ask that it be translated or be subjoined with a translation in the French language at the instance and at the expense of the petitioner. |
Avoiding Exequatur Problems
The ultimate favorable results in international litigation and also in settlement negotiations are often determined by successful, judicious forum shopping.
Non-French legal counsel for a Non-French Plaintiff should not assume that selecting a non-French judicial forum will lead to the best result, as, inter alia, French courts may, by application of French internal law, refuse to enforce (grant exequatur of) certain foreign final and executory judgments. Accordingly, if the prospective defendant is French, the choice of forum issue should normally be discussed with French counsel.
Avoiding Litis Pendence Problems
Once the informed decision is reached to select a non-French judicial forum will lead to the best result, it is important that the French defendant be validly served first. Failure to effect valid service on the first try could offer the French defendant the possibility of serving the Non-French Plaintiff “first” and thereby creating a situation of litis pendence in France, thereby possibly denying the Non-French Plaintiff the home court advantage which his counsel deemed preferable.
Procedures Followed by French Bailiffs when Effecting Service of Process
French bailiffs (huissiers de justice) have a statutory monopoly on the right to effect service of process in France.
When a French bailiff serves a summon notifying a person or a corporation in France that he/it has been sued in France or in another county, such process process server must follow certain statutory requirement. The most important statutory provision are set forth in Articles 648 – 650 and Articles 665 – 671-3 of the Code of Civil Procedure (“CPC”).
N.B.: When preparing a summons to be served in France, counsel should read with care Articles 648 of the CPC as it lists certain information which should be contained in the summons.
Understanding Commercial & Litigation in France
If the potential litigation is commercial in nature,legal counsel of the Non-French Plaintiff may find it helpful to review the linked article on that subject (click here). An additional article on Commercial Debt collection in France is also available here