For a long time, proceedings before the Commercial Court were essentially oral. This characteristic, which was intended to guarantee simplicity and speed, was one of the special features of this court. However, over the years and with successive reforms, the written word has gradually gained ground, to the point of profoundly changing the face of commercial litigation. This development raises essential practical questions for businesses and their advisers: how do oral and written proceedings fit together today? What are the practical consequences for the conduct of commercial litigation?
The historic principle of oral proceedings before the Commercial Court
Foundations and initial objectives
The oral nature of proceedings before the Commercial Court has its roots in the very history of this court. Created in 1563 by the Edict of Charles IX, it was intended to offer traders a simple, rapid and inexpensive way of settling disputes.
Oral proceedings were a perfect response to these objectives, enabling litigants to express themselves directly before their peers, without excessive formalism. Article 860-1 of the Code of Civil Procedure still sets out this fundamental principle: "proceedings shall be oral". This pithy formulation reflects a desire for procedural simplicity.
This initial choice also reflected an era when commercial exchanges were based more on the spoken word than the written word. Consular judges, who were themselves traders, were expected to understand the customs and problems of their peers without the need for lengthy written explanations.
Consequences: primacy of debates at the hearing?
In its original conception, orality meant that the parties appeared in person at the hearing to set out their claims and arguments. The court was then seized only by the oral presentation of the parties, which theoretically meant that claims not supported orally were considered abandoned.
This primacy of the spoken word had several important practical consequences:
- Appearance in person or by proxy was essential
- Claims had to be formulated at the hearing
- The court clerk recorded the parties' submissions in the court docket
- The court judged the case on the basis of these oral debates
This predominance of oral proceedings was also reflected in the obligation for the parties to appear at the hearing. According to traditional case law, written submissions filed by a non-appearing party were considered inadmissible (Chambre commerciale, 23 November 1982).
The rise of the written word: a transformed procedure
The obligation to communicate documents and written submissions
Developments in commercial practices and the increasing complexity of the law have gradually led to an increase in the use of written documents in proceedings. This trend has accelerated with the successive reforms of the Code of Civil Procedure.
Today, even if proceedings are still described as oral, the parties are required to communicate their documents and, in practice, to draw up written submissions. Article 446-2 of the Code of Civil Procedure states that when the parties formulate their claims in writing, their pleadings must expressly set out the claims as well as the pleas in fact and in law, with an indication for each claim of the documents relied on.
This obligation is reinforced by a particularly important rule: the parties are deemed to have abandoned any claims and pleas not set out in their final written submissions. This principle of the uniqueness of written proceedings has been enshrined by the Cour de cassation (2nd Civil Chamber, 22 June 2017), which ruled that it applies even when the parties are not exempt from appearing at the hearing.
The central role of the written file for the judge
The written file has become the central element on which the judge bases his decision. Since the start of the written phase, after the writ has been servedThe exchanges between the parties gradually structure the legal debate.
In practice, the judge in charge of hearing the case (who has replaced the former judge-rapporteur since the decree of 24 December 2012) organises the written exchanges between the parties. He sets the deadlines and conditions for communicating the claims, pleas and exhibits. This procedural timetable is restrictive, as failure to meet the deadlines may result in late submissions being inadmissible.
The importance of the written document is also reflected in the judge's power to exclude late submissions, pleas and exhibits from the proceedings. This sanction applies when the delay is prejudicial to the rights of the defence and occurs without a legitimate reason.
Electronic communication and its impact
The advent of electronic communication has considerably strengthened the role of the written word in commercial procedure. The development of platforms such as "i-greffes" and the widespread use of the RPVA (Réseau Privé Virtuel des Avocats) have facilitated dematerialised exchanges.
Since an order of 21 June 2013, electronic communication has been permitted for procedural documents between lawyers and between lawyers and the court. More recently, the introduction of the "digital court" means that business owners can apply to the court online and follow the progress of ongoing proceedings.
These technical developments have had a profound impact on the face of commercial litigation, by further accentuating the written dimension of the proceedings. They now make it possible to perform certain procedural acts without appearing in person, such as requesting payment deadlines (article 861-2 of the Code of Civil Procedure).
What is the relationship between the spoken and written word today?
The written submissions set out the claims and pleas in law
Le course of the procedure, overview shows that written submissions are now the main vehicle for the parties' claims and arguments. This development is enshrined in article 446-2 of the Code of Civil Procedure, which provides that pleadings must expressly set out the parties' legal and factual claims and arguments.
Case law has reinforced the importance of written submissions by considering that the parties are deemed to have abandoned any claims and arguments not included in their final submissions. This rule, initially applicable to written proceedings, has been extended to oral proceedings, including before the Commercial Court.
As a result, the principle of concentration of arguments now requires the parties to present all their arguments in their written submissions. The written file thus becomes the framework for the litigation, which considerably limits the scope of traditional oral proceedings.
The oral hearing: convincing and answering questions
Although the written pleadings set the limits of the dispute, the oral hearing nevertheless retains an important role. It allows the lawyers to highlight the essential points of their arguments and answer the court's questions.
However, oral argument cannot go beyond the framework set by the written pleadings. Its main purpose is to convince the judges of the relevance of the arguments already developed in writing. This is why the the lawyer's role in exchanges has changed considerably.
Recent case law confirms the importance of written submissions in relation to oral argument. The Court of Cassation has ruled that if a party is absent from the hearing, the court remains seized of the case on the basis of the written submissions previously filed (2nd Civil Chamber, 9 April 2009).
Can new arguments be raised orally? Limitations.
The question of new arguments raised only orally is a perfect illustration of the current relationship between written and oral submissions. In principle, legal arguments and claims that have not been formulated in written submissions cannot usefully be presented at the hearing.
This limitation is particularly marked for procedural objections and pleas in bar, which must be raised in limine litis. On the other hand, case law allows new arguments to be raised before any defence on the merits during the oral hearing (2nd Civil Chamber, 16 October 2003).
For legal arguments, the situation is more nuanced. According to Article 12 of the Code of Civil Procedure, the judge must give the exact legal characterisation to the facts and acts in dispute. He may therefore accept a legal basis not invoked by the parties, but only on the basis of the facts regularly submitted for debate.
Practical implications for litigants and their lawyers
Rigorous written preparation is essential
This move towards increasingly written proceedings has major practical consequences for litigants and their counsel. Preparing written submissions has become a crucial stage that largely determines the outcome of litigation.
A lawyer for commercial proceedings must now pay particular attention to the drafting of its submissions. They must exhaustively set out all the arguments of fact and law, in a logical and convincing manner. Documents must be carefully selected, numbered and analysed.
This rigorous requirement is all the more important as late or incomplete submissions risk being excluded from the proceedings. Case law considers that the parties are deemed to have abandoned any pleas not included in their final submissions.
The importance of clarity and structure in entries
The quality of written submissions has become a determining factor in the success of commercial proceedings. The pleadings must clearly set out the claims and the grounds on which they are based, with a precise indication of the documents relied on.
Article 446-2 of the Code of Civil Procedure now requires that written pleadings be rigorously structured, expressly setting out the claims and pleas in fact and in law. This formal requirement reflects the growing importance of writing in proceedings.
In practice, written submissions should be drafted according to a logical plan, with the paragraphs numbered and the exhibits listed. This formal rigour facilitates the judge's work and makes the arguments more effective.
The hearing remains a key moment, but based on the written word
Despite the growing importance of written pleadings, the oral hearing remains of significant importance. It provides an opportunity to highlight the essential points of the case and answer the judges' questions.
Nevertheless, the closing argument is now largely based on the written submissions previously exchanged. The aim is not so much to set out the arguments in full as to highlight the decisive aspects. This is why experienced lawyers adapt their pleadings to the written file and the questions raised by the judges.
Moreover, the development of proceedings without a hearing or with dispensation to appear bears witness to this trend. Article 861-1 of the Code of Civil Procedure allows a judge to dispense with the need for an appearing party to attend a subsequent hearing, thus confirming the primacy of the written document over the oral.
Towards an essentially written procedure? A look ahead.
Recent developments in commercial procedure reflect a fundamental trend towards the predominance of the written word. This trend is part of a gradual rapprochement with the system of written procedure applicable before the courts.
Several recent reforms have accentuated this phenomenon. In particular, Decree no. 2019-1333 of 11 December 2019 made representation by a lawyer mandatory before the Commercial Court, with limited exceptions. This reform has helped to further professionalise proceedings and strengthen their written dimension.
At the same time, the development of digital tools facilitates dematerialised exchanges and reduces the importance of physical presence at hearings. The "digital court" now enables litigants to follow the progress of their case online, while videoconference hearings are becoming more widespread.
Some practitioners are concerned about this development, fearing that it will distort the original spirit of consular jurisdiction. Others, on the contrary, see it as a guarantee of legal certainty and procedural efficiency. Whatever the case, this transformation raises questions about the future of oral proceedings as a founding principle of commercial procedure.
The Covid-19 health crisis has accelerated this trend, with the widespread use of proceedings without a hearing or with a remote hearing. These practices, initially conceived as exceptional, could well become a permanent feature of the judicial landscape.
If you are faced with a dispute before the Commercial Court, it is essential to be accompanied by a professional with a perfect command of the complex relationship between the spoken and written word. Our firm has the expertise to guide you effectively through these constantly evolving procedures.
Sources
- Code of Civil Procedure, articles 446-1 to 446-4, 853 to 871
- Decree no. 2010-1165 of 1 October 2010 on conciliation and oral proceedings
- Decree no. 2012-1451 of 24 December 2012 on the expertise and investigation of cases
- Decree no. 2019-1333 of 11 December 2019 reforming civil procedure
- Court of Cassation, 2nd Civil Chamber, 22 June 2017, no. 16-17.118
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