The arrest of a vessel is a spectacular measure and a powerful lever for a creditor seeking to recover his debt. However, detaining the vessel is only the first step. A fundamental question arises immediately afterwards: which court will have jurisdiction to judge the merits of the dispute, i.e. to rule on the existence and amount of the claim itself? For a long time, French law accepted a pragmatic solution known by the Latin adage arresti forumwhich gave jurisdiction to the court at the place of seizure. This apparently simple rule has been the subject of a major reversal in case law, placing France in a unique position on the international scene. Understanding this development is essential for any creditor or shipowner confronted with the legal framework and history of ship seizures in france. Faced with the complexity of these rules, assistance from a lawyer specialising in ship seizures is becoming a necessity if you are to secure your rights.
Definition and role of forum arresti in maritime law
The principle of arresti forumThis is a rule of international jurisdiction which allows the court of the place where an asset has been seized to declare itself competent to judge the entire dispute. In maritime law, this means that the mere fact of making a precautionary seizure on a ship in a French port could be enough to give the French courts jurisdiction to decide the main dispute between the creditor and his debtor, even if the latter are foreigners and their contract has no other connection with France.
This rule was designed to ensure the efficiency and proper administration of justice. For the creditor, it offered a considerable advantage by centralising the procedure. Not only could he obtain a rapid protective measure to secure his claim, but he could also have his rights judged before the same court, thus avoiding having to initiate a second, often lengthy and costly, procedure abroad. Seizure was therefore not only a guarantee, but also a real procedural hook. To find out more about seizure mechanisms, it is useful to refer to the procedure for the precautionary seizure of shipswhich is a prerequisite for the application of the arresti forum.
Jurisdiction of the court at the place of seizure for the substantive action
Competence derived from arresti forum was not limited simply to the validity of the seizure. It extended to the substantive action, i.e. the examination of the claim itself. The attachment judge became the judge of the contract or of liability. This solution, enshrined in the leading case of Nassibian in 1979, had undeniable practical advantages. It saved a considerable amount of time and expense, as the creditor did not have to obtain a decision abroad and then have it recognised in France (exequatur procedure) in order to sell the seized vessel.
However, this jurisdiction was considered optional. It did not exclude the possibility of the parties turning to the court with natural jurisdiction by virtue of their contract or the rules of private international law. It offered an additional option to the creditor, a direct and effective procedural route. The ship, a mobile good par excellence, became by its presence in a French port the connecting factor that justified the jurisdiction of the French court.
The Court of Cassation's jurisprudential turnaround (1995-1997)
In the mid-1990s, the Court of Cassation made a spectacular U-turn, abandoning the solution it had itself established. This new direction profoundly altered the legal landscape of ship seizure in France, creating a clear distinction between jurisdiction for seizure and jurisdiction for the merits.
The abandonment of the jurisdiction of the arresti forum and its initial motivations
In a ruling handed down on 17 January 1995, the First Civil Chamber of the French Supreme Court (Cour de Cassation) established a new principle: the place where a ship is seized in France is no longer sufficient to establish the international jurisdiction of the French courts to hear the merits of the dispute. The Court ruled that while French courts do have jurisdiction to rule on the legality of an attachment carried out on national territory, they can only rule on the existence of the claim if another criterion of ordinary jurisdiction designates them. In practical terms, the creditor must now show that the French court has jurisdiction by virtue of the defendant's place of residence, the place of performance of the contract or any other conventional rule of international jurisdiction.
This reversal, confirmed by other decisions, notably in 1997, was aimed at returning to a more orthodox conception of international jurisdiction, considering that the fortuitous presence of property on the territory was not a sufficient connecting link to judge the entirety of an international dispute. Seizure thus became once again what it is in ordinary law: a simple protective measure, disconnected from jurisdiction on the merits.
The nuances and exceptions subsequently introduced by case law
However, in the face of criticism from academic writers and the practical difficulties created by this reversal, case law has introduced a number of nuances. The Cour de cassation has accepted that the French court in charge of the attachment remains competent to examine all questions relating to the conditions under which the enforcement measure is exercised in France. In a judgment of 11 February 1997, it recognised the jurisdiction of the French court to assess the fictitious nature of a company owning a ship, in the context of an application to enforce a foreign judgment. The action did not relate to the substance of the claim, which had already been decided, but to the extent of the creditor's pledge.
This case law, while not reversing the principle of the abandonment of the arresti forumThis, in turn, shows a desire to retain a degree of control over those aspects of the procedure that take place on national territory. This creates a sometimes fine line between the assessment of the "principle of the claim" to justify the seizure, and the judgment "on the merits" of that same claim. In addition, a legal exception remains: Article 1 of the decree of 19 January 1968 maintains the jurisdiction of the arresti forum when it comes to boarding.
The forum arresti approach in international conventions
The isolation of the French position is all the more marked when compared with the solutions adopted in the main international instruments governing the seizure of ships, which enshrine, to varying degrees, the jurisdiction of the court of the place of seizure.
The 1952 Brussels Convention and its scope of application
The Brussels Convention of 10 May 1952, ratified by France, organises a system of arresti forum limited. Article 7 sets out a list of six cases in which the court of the State where the seizure was made will have jurisdiction to rule on the merits. These cases include where the claimant is resident in that State, where the maritime claim arose in that State, or where the claim arises from a collision or salvage. Apart from these cases, the court of attachment only has jurisdiction if the domestic law of its country so provides. By abandoning the arresti forum French law is therefore at odds with the possibility offered by the Convention of maintaining a broad jurisdiction. To examine these rules in more detail, it is useful to analyse the scope of the 1952 brussels convention.
The 1999 Convention and the general recognition of the forum arresti
The 1999 International Convention on the Arrest of Ships, although not yet ratified by France, marks an even clearer development. Article 7 goes much further than the 1952 text by establishing the principle of the jurisdiction of the court of the place of seizure to judge the dispute on the merits. This principle of jurisdiction can only be set aside if the parties have agreed otherwise, by means of a jurisdiction clause or an arbitration clause. This convention therefore represents a return to a arresti forum French law is therefore out of step not only with existing law but also with the most recent trends in international maritime law. French law is therefore out of step not only with existing law but also with the most recent trends in international maritime law.
Criticisms and prospects for reform of French law
The abandonment of the arresti forum by French case law has not failed to elicit strong criticism from academics and practitioners, who point out that it does not reflect the realities of maritime trade and call for a return to the previous solution.
The disadvantages of the isolation of French law in matters of jurisdiction
The current position under French law has a number of disadvantages. For creditors, it makes the procedure considerably more cumbersome. They now have to fight two legal battles at once: one in France for the seizure, and another, often on the other side of the world, to obtain a judgment on the merits. This generates additional costs, longer delays and greater legal uncertainty. For French ports, this situation may represent a loss of attractiveness. An international creditor might prefer to have a vessel seized in a neighbouring country applying the arresti forumIn this way, a unified and faster procedure can be used. This reduces the effectiveness of seizure as a collection tool.
A plea for a return to the generalised forum arresti in maritime law
Faced with this situation, many are calling for legislative reform. A return to the principle of the general jurisdiction of the court of the place of seizure, as set out in the 1999 Convention, would appear to be essential. Such a reform would realign French law with international law and restore a pragmatic, effective solution that protects creditors' interests. It would provide greater legal predictability and make the French port sector more attractive. Ultimately, the aim would be to recognise that the very nature of maritime litigation, which is mobile and international, justifies a jurisdictional rule adapted to its specific features.
The question of arresti forum perfectly illustrates the tension between legal orthodoxy and the practical imperatives of international trade. While case law has opted for rigour, the consequences for economic players are tangible. Navigate these complex legal waters and defend your interests effectively, assistance from a lawyer specialising in ship seizures is essential. Our firm is at your disposal to analyse your situation and define the most appropriate strategy.
Sources
- Brussels Convention of 10 May 1952 for the Unification of Certain Rules Relating to the Precautionary Arrest of Seagoing Ships
- Geneva International Convention of 12 March 1999 on the Arrest of Ships
- Law no. 67-5 of 3 January 1967 on the status of ships and other seagoing vessels
- Decree no. 67-967 of 27 October 1967 on the status of ships and other sea-going vessels
- Transport Code
- Code of civil enforcement procedures
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