Contratto ImpresaEuropa - Cedam

Indeed, the French Supreme Court has, in a very recent case dated 23
may 2006, ( 28 ) finally reversed its prior case law by ruling that: «Article 15
of the French Civil Code only provides for an optional jurisdiction of French
courts, which is unfit to exclude the indirect jurisdiction of a foreign court so
long as the dispute is linked in a characterized manner to the State, which jurisdiction
is seized, and so long as the choice of that jurisdiction is not fraudulent”.
This decision, which has been given the maximum level of publicity
( 29 ), is meant by the Supreme Court to set forth a principle that will
have controlling authority in all cases where the recognition of a foreign
judgment is at stake. Moreover, the decision comes back to a literal interpretation
of Article 15, which language only provides for an optional, and
not an exclusive, jurisdiction of French courts. By implication, the decision
similarly rules out Article 14 of the French Civil Code as a ground for
barring recognition of a foreign judgment ( 30 ).
Articles 14 and 15 of the French Civil Code should therefore no longer
be obstacles to the recognition and enforcement in France of an American
class action judgment. We will nevertheless, for the sake of completeness,
examine how the issue of waiver to Articles 14 and 15 would be dealt with
in the context of an action for recognition of a U.S. class action in France.
d. Waiver of the Privilege
DIBATTITI 659
French rules on privileges of jurisdiction are not mandatory and may
be waived.
In respect to the defendant, the waiver can be inferred from a failure
to challenge the U.S. court’s jurisdiction. French case law considers that a
defendant who appears before a foreign court without raising an objection
for lack of personal jurisdiction is deemed to have waived his right under
Article 15 ( 31 ). Yet, French case law does not require the defendant who
( 28 ) Cass. Civ., 1 st Sect., 23 May 2006, Prieur vs. Montenach, n° 04-12777.
( 29 ) P + B + R + I: “P” means that the case is published in the «Bulletin des arrêts de la
Cour de cassation », “B” means that it is published in the «Bulletin d’information de la Cour
de cassation », “R” means that it is published in the «Rapport annuel de la Cour de cassation
» and finally “I” means that the case is posted online on the website of the French Cour
de cassation amongst the Grands arrêts de la Cour de cassation (i.e. the greatest cases of the
Cour de cassation).
( 30 ) Although, as seen above, the use of Article 14 in the context of indirect jurisdiction
was very rare since by referring a case to a foreign court a French claimant was presumed to
have waived its privilege.
( 31 ) Cass. Civ., 1 st Sect., 25 October 1966, Hochapfel vs. Ghebali, in Bull., 1966, I, n° 481;
Cass. Civ., 1 st Sect., 2 May 1979, Verdier vs. Orihuela, in RCDIP, 1980, p. 362; Cass. Civ., 1 st