its recognition in the French legal order

The parties to an international dispute often undertake real "racing to judgment" in their respective countries. The benefits are so apparent that multiple find on his land. And it causes his opponent any discomfort that is avoided: plead far from home, in a foreign language, according to an unknown procedure, sometimes very expensive exhibitor at legal sanctions potentially heavy.

"class actions" (group actions) which found face, New York, Vivendi Universal and Jean-Marie Messier to provide a perfect example: counsel for the Group did not hesitate to challenge the jurisdiction of us courts, on the basis that public order required that such a trial was pleaded in France before the French justice.

Barely negotiated clauses

Be the first decisive is, even if that means pushing the conventions and to escape contractual forecasts. Or contracts more often organize the settlement of disputes: a jurisdiction clause may designate, in advance, the courts of a country. Best, an arbitration clause from the dispute of the judicial circuit State. In reality, these clauses are barely negotiated and even less read.

A judgment of the Court of cassation of October 14, 2009 (No. 1017, 08-16.369/08-16.549) recalled yet rigorously their consequences. A mundane commercial litigation between a US company and its French Distributor. The contract provided for the jurisdiction of the courts and the law of the State of Georgia. American society having terminated the contract, the Distributor had before the commercial court of Nanterre. The U.S. portion in challenged the jurisdiction and, at the same time, continued the French distributor in Georgia. It has received a final permanent injunction ("antisuit injunction", literally "ban anti-procès") defending to the Distributor to continue the proceedings in France. In the aftermath, she received the enforcement of that judgment, i.e. its recognition in the French legal order. Concretely, the French party had to submit to the American trial.

Typical of the "common law", these anti-procès injunctions can shock because they impinge on the prerogative of the States: determining the jurisdiction of their courts. For this reason, they are issued on a case by case and with restraint. In the European Union, the Court of justice of the European Communities (ECJ) denies the free movement of their English equivalent (stop Turner from April 27, 2004).

In our case, the jurisprudence of the ECJ was inapplicable. The French distributor nevertheless argued that the "anti - suit injunction" American, depriving him of the essential right to obtain a decision of the French Court on its jurisdiction, violated French sovereignty and the right of access to justice protected by article 6 of the Convention for the protection of the rights of man and fundamental freedoms. Arguments rejected by the Court of cassation. She found that American society was legitimately its right, recognized by the French party, contractually to plead in the United States. The jurisdiction clause had indeed been freely accepted. Therefore that "the decision taken by the judge of the State of Georgia precisely to determine its own jurisdiction and intended to enforce the agreement conferring jurisdiction undertaken by the parties", it did not matter to complain about a denial of access to the French judge.

The Court of cassation could not conclude that the absence of conflicting international public order: the "antisuit injunction" merely to punish the violation of a pre-existing contractual obligation. Probably, the solution would have been any other in the absence of such a clause. The American judge would not necessarily estimated is best placed to decide the dispute might refuse to order a "antisuit injunction."

Two parallel trials have resulted in a race to judgments, marked incidents of procedure various, perhaps entered into by irreconcilable decisions, or even other recourse... It is often because that person is his account in these battles of powers between judicial systems and different legal orders that justly, international arbitration has become the common mode of settlement of disputes between operators of international trade.