Recovery of debts by preventive proceedings

Paul-Marie Gaury

“Référé classique” – Summary application

  • Articles 835 and 873 of French civil procedure Code
  • Court is able to make an order quickly
  • Adversary procedure
  • The decision is enforceable immediately

Référé provision” –  Interim payment

  • The existence of the obligation cannot be seriously challenged
  • Emergency does not need to be proved
  • The applicant will have to establish the existence of the obligation which he is invoking

The Court may grant a provisional measure in favour of the creditor

“Référé heure à heure” – Court sitting “from hour to hour”

  • Court is able to make an order very quickly, sometimes a few hours of a summons being notified
  • Adversary procedure
  • An emergency must be found to exist
  • The emergency must be obvious at the time when the decision is made by the Court

Remarks

Arbitration dispositions do not defeat a French summary proceeding

  • Article 1449 of French civil procedure Code provides that arbitration clause can be defeated in case of emergency, allowing French judge of summary application to rule
  • If arbitration clause is in your favor, waiving this right is possible even when ruling on the merits

Jurisdiction clause do not defeat a French summary proceeding

 

“Saisie conservatoire” – Preventive seizure

  • Article 521-1 of French Code of civil enforcement procedures – non adversarial procedure
  • All kind of movable goods can be seized, at the exclusion of real estate and non-seizable goods
  • The applicant must prove circumstances that may threaten the recovery of a justified debt
  • Only a bailiff can proceed to the seizure
  • Seized assets are unavailable
  • Provisional nature of the seizure