22.01 – Arbitration and enforcement of judicial orders and decisions – JAP

• Corporate law
• Distribution and commercial contracts
• Copyright, media and sport
• Trademarks and designs
• Patents
• Wine and spirits
• Unified Patent Court
• Arbitration and enforcement of judicial orders and decisions

International Arbitration

Arbitration offers a neutral forum for dispute resolution, which is often useful in cases involving parties from different countries, legal traditions, and cultures.

Given that our firm’s team is highly international and particularly focused on Asia, with a partner of South Korean nationality and culture, another of Chinese nationality and culture, and an of- counsel lawyer of Japanese nationality and culture, it is only natural that we are interested in international arbitration.

Thanks to the varied expertise of our lawyers, we advise and represent our clients, whether they are companies, investors or public entities, in commercial or investment arbitrations, regardless of the seat of arbitration, although we have a particular interest in China, South Korea and Japan.
We can intervene in particular on the following issues: corporate law and post-acquisition matters, international trade law, intellectual property law and distribution law.

Enforcement of foreign judgments and international arbitral awards in France

Introduction

Obtaining a judgment or an arbitration award against a debtor is of little use if the winning party is unable to recover the damages awarded to it.
Our firm is composed of lawyers of different nationalities (French, Japanese, Chinese, South Korean) all with international experience and a dual cultural background.

It is therefore logical that we can claim expertise in the recognition and enforcement, in France, of foreign judgments and arbitral awards.
For foreign judgments, this can be a judgment rendered by a court of another Member State of the European Union (EU) or a judgment rendered by a court of a State located outside the EU, such as an English, American, Japanese, or South Korean judgment.

Judgments rendered by a court of another EU Member State

With regard to judgments rendered by a court in another EU Member State, Regulation (EC) No 1215/2012 of 12 December 2012 established the following principle: mutual trust in the administration of justice within the EU justifies the principle that decisions given in one Member State are recognized in all Member States without the need for any special procedure.

Furthermore, the desire to reduce the duration and costs of cross-border litigation justifies the elimination of the declaration of enforceability required prior to enforcement in the requested Member State. Consequently, any decision given by the courts of one Member State is treated as if it had been given in the requested Member State.

Thus, a German or Spanish creditor, for example, benefiting from a German or Spanish judgment against a French debtor, may directly request its enforcement in France (provided that the said German or Spanish judgment meets the conditions of Regulation 1215/2012 of 12 December 2012 and other subsequent texts and the French or EU case law that has implemented them).

For each cross-border civil or commercial case, the court decision must be enforced in accordance with the national rules and procedures of the State of enforcement (generally, the one where the debtor has his domicile or assets).

Judgments rendered by a court of a State located outside the EU

In this scenario, and unless France and the third country in question are bound by a bilateral or multilateral agreement on the mutual recognition and enforcement of judgments, a creditor wishing to enforce a foreign judgment in France must first initiate an exequatur procedure. This procedure, which must be initiated before the French “tribunal judiciaire” and is adversarial, gives the foreign judgment the force of law. However, the French judge can only grant this exequatur if certain conditions are met, such as the foreign judgment not violating French international public policy. Once this exequatur judgment is obtained, the foreign creditor can pursue all enforcement measures provided for by French law against the debtor’s assets located in France: “saisie-attribution”, seizure of shares, seizure of real estate, seizure of aircraft, etc.

International arbitral awards or awards rendered abroad

Even though an international arbitration award or one rendered abroad is normally final and binding, it is not always voluntarily executed by the losing party.

Thus, when one party has obtained an arbitral award in its favor and the other party has not voluntarily executed it, the winning party can enforce the arbitral award in France against the losing party’s assets located in French territory.

To do so, the winning party must apply to the Paris “tribunal judiciaire” to obtain an enforcement order for the arbitral award. Once the enforcement order is obtained, the winning party can then initiate enforcement measures against the losing party, such as, for example, a bank account attachment or a seizure of partnership rights.

French law has been pro-arbitration for a long time.

Thus, the procedure relating to the application for enforcement is not adversarial and, in accordance with Article 1526 of the Code of Civil Procedure, the application for annulment filed against the award and the appeal against the order granting enforcement do not suspend its execution.

This last point constitutes an important innovation introduced by the reform of arbitration procedure resulting from the decree of January 13, 2011, specifically to prevent dilatory appeals filed by parties acting in bad faith who, after expressly agreeing to submit to arbitration proceedings to resolve their dispute, attempt to evade, by way of an appeal, the enforcement of the decision rendered in that context.

The expertise of our Law Firm

Whatever type of decision (judgment or arbitral award) needs to be enforced in France, our firm implements a whole range of services for the benefit of its clients.

In collaboration with bailiffs or private investigators or through consultation of specialized databases, we first help our Clients to identify and locate the assets of their debtors located in France (bank accounts, shares, intellectual property rights, real estate, etc.).

We are also able to determine if some of these debtors’ assets are subject to freezing measures by France, the European Union, the United States, or the UN (examples: freezing measures taken against Iran or Russia).

We also advise our Clients and/or our foreign lawyer colleagues – who may retain us – to contact us even before a foreign judgment or arbitration award has been issued.

Indeed, in this case, if we can demonstrate to a French judge that our client has a claim that appears to be well-founded and that there are threats to its recovery, the French judge could then authorize our client, upon filing a request, to take precautionary measures against the debtor’s assets. This would allow us to secure the payment of our clients’ debts in advance.

These precautionary measures may include, in particular, a precautionary seizure (seizure of bank accounts or other movable assets, seizure of registered French trademarks, works of art, etc.), a provisional registration of a pledge on a business or on company shares, or even a provisional judicial mortgage on real estate.

These precautionary measures will subsequently be converted into definitive security upon obtaining the final judgment rendered by a court of another EU Member State or following the pronouncement of a French exequatur judgment (in the case of a judgment rendered by a court of a State located outside the EU or in the case of an international arbitration award or one rendered abroad).

It will then be possible to implement enforcement measures on French territory to compel the debtor to pay: seizures and sales of tangible movable property, seizures of aircraft and ships, attachments of bank accounts, judicial sales of shares, businesses, buildings, etc.

Our firm can also initiate, on behalf of its clients, a European order for the attachment of bank accounts, which is intended to facilitate the cross-border recovery of debts in civil and commercial matters.

This procedure allows a creditor to obtain a European order for the attachment of bank accounts which prevents the subsequent recovery of their claim from being jeopardized by the transfer or withdrawal of funds up to the amount specified in the order, held by the debtor or on behalf of the debtor in a bank account held in an EU Member State.

In the case of a judgment rendered by a court of a State located outside the EU, as in the case of an international arbitration award or one rendered abroad, we advise and represent our Clients in court to initiate an exequatur procedure and then, once this exequatur judgment has been obtained, to select and implement the enforcement measures best suited to each specific case.
In this capacity, we work with both sworn translators to translate foreign judgments and arbitration awards into French and with bailiffs who hold a legal monopoly in France for the service of judicial and extrajudicial documents, as well as for the forced execution of judgments.

Some of these bailiffs specialize in implementing particularly complex enforcement measures, such as the seizure of ships (yachts) or aircraft (private jets).
We are qualified to represent clients before all French courts against both private and public defendants, including foreign States, and we offer our clients and fellow lawyers a range of essential advantages, namely:

• Knowledge of the exequatur procedure and enforcement methods,
• Our mastery of private international law,
• Our ability to identify and locate debtors’ assets,
• Our multilingualism: in addition to French and English, Korean, Chinese and Japanese,
• Our extensive network of fellow lawyers practicing in various regions of the world and particularly in Japan, South Korea and China.