Vive la difference

Philip Jenkinson says the differences between French and English commercial law can lead to some unfortunate – but predictable – misunderstandings. Philip Jenkinson is a qualified French avocat and the partner in charge of the London office of Triplet & Associes.

English common law practices dealing with corporate matters often find that the provisions of French law are reassuringly recognisable while at the same time disconcertingly different.

In good Napoleonic tradition, much of the statute law may be found in codified form, such as in the Code civil or the Code de commerce. There are also certain areas of law which are not codified, as well as a considerable number of less easily accessible statutory instruments, decrees, orders and so on handed down by government as opposed to parliament.

However, the rock upon which most English lawyers tend to founder is not their understanding of French law as written, but their failure to appreciate the differences in legal and business culture between the two systems.

An interesting example of such mutual misunderstanding may be found in commercial litigation. In France, once the initial writ has been issued, about 95 per cent of matters tend to go to full trial, with the remaining small percentage being settled out of court. In England, it seems, almost the exact opposite would happen.

The situation in France flows, inter alia, from the fact that costs do not usually follow the action and that hearings are generally not only short but also the least expensive part of the proceedings. Thus English lawyers sparring with their French counterparts in the early part of commercial litigation often mistakenly assume that the other side will at all costs seek to avoid the expense of a trial before the French courts and come to a settlement.

But this would probably be the last thought in the opposing avocat's mind, for whom a full court hearing is the normal outcome of having commenced proceedings, and in whose view any intimation of a settlement would simply be perceived as a confirmation of the weakness of the other side's position.

The other side of this particular coin may be observed in the fact that some avocats make the corresponding mistaken assumption when pursuing matters before the English courts. For example, a confrere from a northern French Bar found, to his professional and personal embarrassment, that although the English court had held that a certain sum was due to his French client, the client had been obliged to pay his own costs – which were nearly three times the amount at suit – because he had refused a settlement offer by the other side at an earlier stage in the proceedings.

There are also often misunderstandings over the different structures of the respective legal professions. UK-based solicitors, for example, generally tend to assume that avocats are able to advise on probate matters or conveyancing. However, although all avocats would have studied some of the arcane mysteries of notarial law at university, few would be capable of giving up-to-date or practical advice in either of these areas.

But it is unfortunate that instead of simply advising his enquirer to consult a notaire, the avocat would often attempt to help his foreign counterpart. He might do this out of politeness or perhaps through fear of losing future business from that same source which may come within an advocate's normal expertise.

However, the ensuing situation is all too often highly unsatisfactory and extremely messy, with threats of intrajurisdictional professional negligence suits hanging in the air.

It is possible to find a parallel situation in which an avocat fails to understand the separate branches of the profession in England. He expects to deal with one lawyer who will write to him, give advice, start proceedings and appear in court. On his return to France, the avocat would generally have great difficulty in explaining to his client why he had to sit in court behind up to three levels of experienced and expensive lawyers, whereas in France he alone would have handled a similar matter from start to finish.

There are many more minor misunderstandings that can arise between the two professions but thankfully such problems are not encountered too often. As my head of chambers Jean-Jacques Triplet always says (with the tiniest hint of irony) when referring to anything to do with England: “Vive la difference.”