Medici is proud to announce that Caroline Duclercq has been nominated by her peers in The Best Lawyers in France ranking (13th edition) for her valued work in the "Arbitration and Mediation" and "International Arbitration" categories. Caroline appears in this ranking every year since 2019.
Caroline Duclercq, partner at Medici, will speak on 7 July 2022 on "Set-off of claims recognized by the arbitrator and the state judge" during the Colloquium on arbitration and debt collection under OHADA law organized in Lomé on 7 and 8 July 2022 under the scientific direction of Dr. Achille Ngwanza.
During this colloquium, various topics will be discussed, including "Expedited arbitration procedures for debt collection", "The debt and investment arbitration", "The debt assessed by the arbitrator and collective proceedings", "Arbitration or court proceedings for debt collection, what to choose?", "The arbitral penalty", "The immediate payment of the arbitral debt", "The interim payment of the arbitral debt".
Among others, the imminent colleagues and professors will be present, namely Pr Akuété SANTOS, Me Abbé YAO, M. Ngueto Tiraina YAMBAYE, Mme Esther MOUTNGUI, M. Calixte APEMAGNON, Pr Emmanuel Sibidi DARANKOUM, Pr Dorothé COSSI SOSS, Pr Walid BEN HAMIDA, Jackson Francis NGNIE KAMGA, Me Mouhamed KEBE, M. Romuald Franck DZOMO, Me Nadine DOSSOU SAKPONOU, Me Coco KAYUDI MISAMU, Me Joachim BILE AKA, Narcisse AKA, Komlan Espoir ASSOGBAVI, Drissa COULIBALY, Diamana DIAWARA, David NYAMSI, Me Pierre KASONGO, Me Vanessa de HAPPI, Dr Sylvie BEBOHI EBONGO, M. Aristide Agbegnigan ASSIOBO, Claude COELHO, Pr Mayatta MBAYE NDIAYE.
On June 21, 2022, our team had the great pleasure to welcome in our new offices representatives of the 24 winners of the first call for projects of the Endowment Fund "Medici For Equality", and to share a privileged moment with these associations combatting discrimination on a national and international scale.
We warmly congratulate all the winners, which are divided into the following four categories:
The conference on “The Effective Examination of a Witness in Litigation” organized by Droit & Procédure and Paris City of Law and moderated by Valence Borgia (Medici Law firm) on 24 March 2022 brought together a number of practitioners (including speakers Frédérick Favre, Jean-Yves Garaud, Ioana Knoll-Tudor, Alexis Werl and Christian Wiest) to discuss the process of the examination of witnesses, which is still little-known, even though it is one of the factors contributing to the attractiveness of Paris as a legal centre.
This conference was divided into two parts.
The first part of the conference, which focused on the context, the stakes and the expectations of the different actors in the field, highlighted the differences between the examination of witnesses in common law and civil law. Ioana Knoll-Tudor explained that the judge and the parties play a different role in each of these legal systems.
President Christian Wiest was able to go back over the innovations brought by the protocols before the international chambers of the Paris Commercial Court and the Court of Appeal of Paris as well as the Guide to proceedings before the International Commercial Courts of Paris (use of English, systematic use of the procedural calendar for more visibility, implementation of provisions concerning the examination of witnesses, technicians and experts, hearing recorded by minutes or by a court reporter, hearing reserved for expert opinions, etc.) and insisted on the important freedom left to the parties. The President also stressed the value of witness examinations for judges in increasingly technical disputes.
Jean-Yves Garaud pointed out that time and money are considerations to have in mind when deciding whether or not witnesses should be presented/examined. He analysed the current situation from this angle and proposed solutions inspired by arbitration where this was possible for greater efficiency: no direct testimony of the witness by the party presenting the witness, closed questions, judge standing back during questions from opposing counsel to reserve those questions for the end and in charge of controlling the process to ensure that the answers remain limited in time, transcript by a court reporter if the parties can afford it or audio recording.
Alexis Werl agreed with Jean-Yves Garaud that time and money are considerations that might limit the recourse to the examination of witnesses and talked about the examination of witnesses in criminal matters and the central role of the judge in such proceedings. He noted that the examination of witnesses is not used as often as one might think, except before the Assize Court (Cour d’assises) where proceedings are oral. He also pointed out that civil justice is more and more inquisitorial and criminal justice is more and more contradictory.
Frédérick Favre presented his point of view as a legal director and explained what are the expectations of companies in this area. He noted that we have the necessary legal arsenal to move towards more orality in the proceedings, which is desirable in terms of the attractiveness of our jurisdictions vis-a-vis our counterparts. He also talked about the drawbacks (the examination of witnesses can be risky and is disruptive for the company) and the advantages - more numerous - of the exercise for the company (opportunity for the company to be more involved in the proceedings and to exchange directly with the judge, useful for experts and technical subjects).
The second part focused on practical advice on how to best and most effectively conduct the examination of witnesses.
Ioana Knoll-Tudor explained what is expected from a counsel in the preparation of witnesses, the main role of the lawyer being to help the parties to identify the weakest points of their case and to explain the importance of the testimony in the proceedings and for the strategy of the case. She identified the differences in the preparation of a technical expert and a factual witness and recalled the importance of the choice of the "right" expert and the "right" witness.
Jean-Yves Garaud recalled that the ethical texts and the Code of Civil Procedure do not prohibit the lawyer from meeting and speaking to the witness. He also mentioned the 2008 Resolution of the Bar Council regarding the preparation of witnesses according to which: "In the context of international arbitration proceedings, whether in France or abroad, it is part of the lawyer's mission to assess the relevance and seriousness of the testimony given in support of his client's claims, by adapting to the applicable procedural rules. In this spirit, the preparation of the witness by the lawyer before the hearing does not infringe the essential principles of the legal profession and is part of a commonly accepted practice in which the lawyer must be able to fully exercise his role as a defender.”
The role of the lawyer in preparing the witness is not to induce the witness to give false testimony; on the contrary, the witness must tell the truth.
Alexis Werl agrees with Jean-Yves Garaud that the prohibition of witness preparation in French law is not based on anything tangible but points out that such preparation can sometimes be misperceived - wrongly - and call into question the witness’ credibility.
Frédérick Favre said that, from the company's point of view, witness preparation is essential.
President Christian Wiest explained how the examination of witnesses is conducted before the commercial court, recalling that any person can be heard as a witness at the request of a party or the judge, that witnesses can be invited by the judge to answer questions of the opposing lawyer and that cross-examination by the opposing lawyer is a possibility.
Ioana Knoll-Tudor gave some practical advice for the examination and cross-examination of the witness at the hearing. She identified some points of attack, the idea being to prove that the witness called by the opposing party is unreliable or that the content of his or her statement is not accurate or that the expert is not independent or qualified in the subject matter on which he or she is reporting. Two tips in particular should be borne in mind: (i) define from the outset the three points to be drawn from the cross-examination – this makes it possible to have a line of conduct at the hearing while preserving a certain amount of flexibility because not everything can be anticipated – and (ii) use the exhibits.
Jean-Yves Garaud recalled that there are no such thing as American-style “objections” in France and that the role of the lawyer who presents the witness stops, in principle, at the hearing. It is up to the judge to play this role and to be able to direct the parties/witnesses towards the points her/she is interested in for greater efficiency.
The debate was closed after some questions from the audience.
As arbitration rules increasingly require parties to disclose the involvement of a third-party funder in arbitration proceedings, this recent decision from the Court of Appeal may reassure third-party funders but also funded parties.
In the context of an action for annulment in which the respondents were represented by Caroline Duclercq and Hervé Cabeli, the Paris Court of Appeal, in a decision dated January 25, 2022, refused to consider the third party funder as a co-claimant in the arbitral proceedings.
As a preliminary remark, it should be noted that the Court, which, in these annulment proceedings, had to rule on whether or not the arbitral tribunal had jurisdiction based on Article 1520, 1° of the Code of Civil Procedure, clarified on this occasion the scope and limits of its review:
- The Court first reiterated the recital of the now famous Schooner decision according to which: "when jurisdiction has been discussed before the arbitrators, the parties are not deprived of the right to raise new pleas and arguments on this issue before the judge in charge of the annulment proceedings and to put forward new evidence to that effect".
- However, the Court then added that "[t]he setting aside judge shall review the decision of the arbitral tribunal as to its jurisdiction by seeking all the elements of law or of fact which make it possible to assess the scope of the arbitration agreement, without, however, reviewing the merits", so that "it is not for the court to take the place of the arbitrators, nor to assess the relevance of their reasoning in the assessment of their own jurisdiction, but to assess the scope of the arbitration agreement.”
As regards the jurisdiction of the arbitral tribunal over the third party funder, the Court first recalled that the assessment of the arbitration clause to rule on the jurisdiction of the arbitral tribunal "must be made in light of the will of the parties, without having to apply French law, in application of the substantive rule of the law of international arbitration according to which the arbitration clause is assessed, subject to the mandatory rules of French law and international public policy, according to the common will of the parties in view of all the circumstances of the case, without it being necessary to refer to a State law". The Court of Appeal then analyzed the terms of the articles of association which included the arbitration clause and in particular the definition of shareholder to determine whether or not the third funder can be considered as bound by the arbitration clause. It considered that, in this case, the third party funder was neither the owner nor the transferee of the company's shares when the third-party funding agreement was signed. The status of shareholder cannot therefore "be attributed to it in anticipation of a hypothetical transfer, but only 'subsequently', i.e. once the transfer has been completed". The Court of Appeal thus concluded that the arbitral tribunal had rightly declined its jurisdiction with respect to the third party funder which was - unduly - brought as a co-claimant in the arbitration proceedings.
Furthermore, the Court noted that "with regard to the interference of the [...] third party funder, to the point of having the arbitration clause extended to it, it is up to the appellants not only to establish the reality of this interference but also to prove that this interference is not inherent to its capacity as a third party funder which necessarily implies that it participates in the proceedings, as only exceptional circumstances could allow such an extension". The fact that the third party funder was officially declared in the arbitration, that it was interested in the outcome of the dispute in a form other than merely pecuniary (i.e., the transfer of shares in a competing company) and that it was an occasional third party funder does not constitute such an exceptional circumstance according to the Court. The Court also recalls that the third-party funder and the funded party have distinct interests.
In doing so, the Court restricts the possibility of involving third-party funders in proceedings involving the funded party.
Finally, from a procedural point of view, it is also worth noting that the international chamber, following the appellants' suggestion, decided to audition a law professor who had given an opinion on a specific point of law for one of the parties ; on this occasion, the Court of Appeal allowed the parties to ask their questions directly to the professor at the hearing. Thus, the Court decided to adopt a rather flexible approach in the context of proceedings under the protocol (knowing that article 5. 4.4 of the protocol provides that "[t]he witnesses may then be invited by the judge to answer the questions that the parties wish to ask"), rather than sticking to a strict reading of article 214 of the Code of Civil Procedure which states that the parties may not ask questions to the witnesses directly.
Do not miss the conference organized by Droit & Procédure and Paris City of Law on “The Effective Examination of a Witness in Litigation” on Thursday, March 24, 2022, the event taking place from 6:00 to 8:00 p.m, at Debevoise & Plimpton’s Paris office.
The panel will be comprised of renowned and experienced practitioners: Frédérick Favre, Jean-Yves Garaud, Iona Knoll-Tudor, Alexis Werl and Christian Wiest, reunited to share their experience with the participants, and will be moderated by Valence Borgia.
This round table will be the opportunity to shed some light on the examination of witnesses, experts or parties thanks to experienced practitioners – a tool which is already available for litigation lawyers but which is not used as often as it could be.
This event also aims to discuss the new standards that could and/or should emerge in the future in this area.
Do not hesitate to join us for this conference which should be fascinating!