Gathering Evidence in Aid of Foreign Litigation Guide |
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France |
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(Europe)
Firm
Gide Loyrette Nouel A.A.R.P.I.
Contributors
Christian Camboulive |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | In France, there is no discovery or disclosure process such as those existing in common law jurisdictions compelling parties to be transparent about the evidence they possess and/or intend on using later in the litigation process. Nevertheless, there are several international judicial cooperation mechanisms by which a party may seek evidence located in France for use in civil or commercial litigation that is taking place in another country (see below). |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | First and foremost, France enacted a “blocking statute”1 prohibiting both the request and disclosure of any “documents or information of an economic, commercial, industrial, financial or technical nature intended to constitute evidence for or in connection with foreign judicial or administrative proceedings” unless taking place in accordance with international judicial cooperation instruments, such as the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), to which France is a party. Besides the Hague Evidence Convention, the main instruments applicable in France are the following:
The Regulation provides two methods to obtain evidence:
[1] Law no. 68-678 of July 26, 1968, relating to the Communication of Economic, Commercial, Industrial, Financial or Technical Documents and Information to Foreign Individuals or Legal Entities, as modified by Law no. 80-538 dated July 16, 1980. [2] The regulation is no longer applicable between the UK and the EU member states. The Hague Evidence Convention has instead become applicable between the UK and those EU member states that are part of the convention. [3] This regulation will be repealed and replaced by Regulation (EU) 2020/1783 as of 1 July 2022. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes, requests for evidence under the Hague Evidence Convention or Regulation no. 1206/2001 require prior approval by a French court or a French authority/central body.
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| What types of information can be sought? Requests for Documents? Written questions? Depositions? | A request may be for all types of evidence: oral and written evidence (such as requests for documents, written questions, deposition of witnesses, written expert investigations, reports, etc.). |
| Who bears the burden of showing whether any privileges apply? | Under French law, there is no obligation for the requesting party to demonstrate that the information sought is not covered by privilege. Pursuant to both the Hague Evidence Convention (Article 10.4) and Regulation no. 1206/2001 (Article 21) the investigation measure cannot be in breach of the law of the place where the measure is performed. In practice, it will be for the requested party to show that privilege applies if it wishes to oppose the measure. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No, there is no need to demonstrate that the evidence sought is allowable in the foreign jurisdiction. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, depositions may be conducted remotely in France under the Hague Evidence Convention and Regulation no. 1206/2001 subject to certain conditions. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | Yes, France enacted a blocking statute1 establishing criminal sanctions on parties that export certain categories of documents, or respond to discovery requests, without submitting to the proper legal channels (cf. supra). A breach of provisions of the blocking statute is punished by a six-month prison sentence and/or a fine of EUR 18,000 (this amount is multiplied by five for legal entities, i.e. EUR 90,000). This blocking statute has however hardly been applied since 1968 (only one criminal conviction has been pronounced) and remains rarely implemented today.
[1] Law no. 68-678 of July 26, 1968, relating to the Communication of Economic, Commercial, Industrial, Financial or Technical Documents and Information to Foreign Individuals or Legal Entities, as modified by Law no. 80-538 dated July 16, 1980. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | No, under the blocking statute, French citizens residing in French jurisdiction may not give voluntarily evidence in a foreign proceeding. The blocking statute does not apply if the evidence is sought in accordance with the applicable international instruments. In practice, the blocking statute is rarely enforced. However, a recent parliamentary report advocated for the greater use of this piece of legislation. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Indeed the answers would differ materially in the context of a foreign arbitral tribunal seeking evidence in France, as the applicable laws previously mentioned only provide, except Article 145 CCP, for requests for the taking of evidence from one state court to another state court. There is no mention of the taking of evidence abroad by an arbitral tribunal in the Hague Evidence Convention nor in the French Code of Civil Procedure. As an arbitral tribunal has no specific forum or legislation, it can proceed autonomously with the search for evidence provided that nothing prevents it from doing so. If there is an obstacle, the tribunal must turn to the competent authorities at the seat of the arbitration to take the above-mentioned steps (whether pursuant to the Hague Evidence Convention, Council Regulation (EC) No. 1206/2001, the Code of Civil Procedure or bilateral treaties). Nevertheless, with respect to Article 145 of the French Code of Civil Procedure, it is established in French case law that the existence of an arbitration agreement does not prevent a party from requesting statutory investigative measures from the national courts in advance of an arbitral procedure. However, no request can be formed once the arbitral tribunal has been constituted. |
Gathering Evidence in Aid of Foreign Litigation Guide
France
(Europe) Firm Gide Loyrette Nouel A.A.R.P.I.Contributors Christian Camboulive
Updated 23 Mar 2022In France, there is no discovery or disclosure process such as those existing in common law jurisdictions compelling parties to be transparent about the evidence they possess and/or intend on using later in the litigation process.
Nevertheless, there are several international judicial cooperation mechanisms by which a party may seek evidence located in France for use in civil or commercial litigation that is taking place in another country (see below).
First and foremost, France enacted a “blocking statute”1 prohibiting both the request and disclosure of any “documents or information of an economic, commercial, industrial, financial or technical nature intended to constitute evidence for or in connection with foreign judicial or administrative proceedings” unless taking place in accordance with international judicial cooperation instruments, such as the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), to which France is a party.
Besides the Hague Evidence Convention, the main instruments applicable in France are the following:
- Council Regulation (EC) no. 1206/2001 of 28 May 2002 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters where evidence is sought from a court based in the EU (with the exception of Denmark2)3.
The Regulation provides two methods to obtain evidence:
- A court (“requesting court”) can ask a court in another EU country (“requested court”) to obtain evidence under Article 1.
- The requesting court can request permission to gather evidence itself directly in another EU country under Article 17.
- Articles 735 to 748 of the French Code of Civil Procedure. The Code of Civil Procedure ("CCP") regulates international requests from foreign courts to obtain evidence in France.
- Article 145 of the French Code of Civil Procedure. This provision reads that "if there are legitimate grounds for preserving or establishing, prior to any legal proceedings, proof of facts which may determine the outcome of a dispute, statutory investigative measures may be ordered at the request of any interested person, in ex parte or emergency proceedings". The request must be presented before the beginning of any court proceedings. This mechanism can be used in support of a forthcoming arbitration, to seek evidence located in France.
- Bilateral conventions. France has signed numerous bilateral agreements related to mutual legal assistance, which provide requirements for obtaining evidence in the French courts for the purpose of foreign litigation.
[1] Law no. 68-678 of July 26, 1968, relating to the Communication of Economic, Commercial, Industrial, Financial or Technical Documents and Information to Foreign Individuals or Legal Entities, as modified by Law no. 80-538 dated July 16, 1980.
[2] The regulation is no longer applicable between the UK and the EU member states. The Hague Evidence Convention has instead become applicable between the UK and those EU member states that are part of the convention.
[3] This regulation will be repealed and replaced by Regulation (EU) 2020/1783 as of 1 July 2022.
Yes, requests for evidence under the Hague Evidence Convention or Regulation no. 1206/2001 require prior approval by a French court or a French authority/central body.
- Under the Hague Evidence Convention: The request should be submitted to the central authority appointed by France which is the Bureau du droit de l'Union, du droit international privé et de l'entraide civile of the Ministry of Justice.
- Under Regulation no. 1206/2001 - Article 1 route: The requesting court submits the request directly to the competent French court i.e. the Tribunal judiciaire.
- Under Regulation no. 1206/2001 - Article 17 route: The requesting court submits the request to the Bureau du droit de l'Union, du droit international privé et de l'entraide civile of the Ministry of Justice.
A request may be for all types of evidence: oral and written evidence (such as requests for documents, written questions, deposition of witnesses, written expert investigations, reports, etc.).
Under French law, there is no obligation for the requesting party to demonstrate that the information sought is not covered by privilege. Pursuant to both the Hague Evidence Convention (Article 10.4) and Regulation no. 1206/2001 (Article 21) the investigation measure cannot be in breach of the law of the place where the measure is performed. In practice, it will be for the requested party to show that privilege applies if it wishes to oppose the measure.
No, there is no need to demonstrate that the evidence sought is allowable in the foreign jurisdiction.
Yes, depositions may be conducted remotely in France under the Hague Evidence Convention and Regulation no. 1206/2001 subject to certain conditions.
Yes, France enacted a blocking statute1 establishing criminal sanctions on parties that export certain categories of documents, or respond to discovery requests, without submitting to the proper legal channels (cf. supra).
A breach of provisions of the blocking statute is punished by a six-month prison sentence and/or a fine of EUR 18,000 (this amount is multiplied by five for legal entities, i.e. EUR 90,000).
This blocking statute has however hardly been applied since 1968 (only one criminal conviction has been pronounced) and remains rarely implemented today.
[1] Law no. 68-678 of July 26, 1968, relating to the Communication of Economic, Commercial, Industrial, Financial or Technical Documents and Information to Foreign Individuals or Legal Entities, as modified by Law no. 80-538 dated July 16, 1980.
No, under the blocking statute, French citizens residing in French jurisdiction may not give voluntarily evidence in a foreign proceeding. The blocking statute does not apply if the evidence is sought in accordance with the applicable international instruments.
In practice, the blocking statute is rarely enforced. However, a recent parliamentary report advocated for the greater use of this piece of legislation.
Indeed the answers would differ materially in the context of a foreign arbitral tribunal seeking evidence in France, as the applicable laws previously mentioned only provide, except Article 145 CCP, for requests for the taking of evidence from one state court to another state court. There is no mention of the taking of evidence abroad by an arbitral tribunal in the Hague Evidence Convention nor in the French Code of Civil Procedure.
As an arbitral tribunal has no specific forum or legislation, it can proceed autonomously with the search for evidence provided that nothing prevents it from doing so. If there is an obstacle, the tribunal must turn to the competent authorities at the seat of the arbitration to take the above-mentioned steps (whether pursuant to the Hague Evidence Convention, Council Regulation (EC) No. 1206/2001, the Code of Civil Procedure or bilateral treaties).
Nevertheless, with respect to Article 145 of the French Code of Civil Procedure, it is established in French case law that the existence of an arbitration agreement does not prevent a party from requesting statutory investigative measures from the national courts in advance of an arbitral procedure. However, no request can be formed once the arbitral tribunal has been constituted.