Investigative measures under Article 145 of the French Civil Procedure Codewhich court has jurisdiction?11/10/2021
Which judge has territorial jurisdiction to order investigative measures in the presence of an arbitration clause or a choice-of-jurisdiction clause?
Governed by Article 145 of the Code of Civil Procedure, investigative measures offer a proceeding allowing a party the possibility – to gather evidence before a dispute, provided that a legitimate reason is demonstrated.
Very useful beforefiling a lawsuit, investigative measures raise numerous doctrinal debates, particularly regarding the territorial jurisdiction of the judge who can order them.
In two recent decisions published in its Record (Cass. 1st civ., 23 June 2021, n°19-13.350; Cass. 2nd civ, 22 October 2020, n°19-14.849), the Court of Cassation removes the doubts that existed in the presence of an arbitration agreement (I) and a jurisdiction clause (II).
I. Territorial jurisdiction of the court ruling on a request for measures of inquiry in futurum in the presence of an arbitration clause
Although Article 1449 of the Code of Civil Procedure states that the existence of an arbitration agreement does not prevent a party from bringing an action before a state court for the purpose of obtaining an investigative, provisional or protective measure, as long as the arbitral tribunal has not been constituted, it remains silent on the question of the court which has territorial jurisdiction to grant such an application.
On the basis of Articles 42, 46, 145 and 493 of the Code of Civil Procedure, case law has long consider that the plaintiff has the option of choosing between “the president of the court that is likely to hear the case on the merits or the president of the court within whose jurisdiction the investigative measures sought are to be carried out, even in part, without the plaintiff being able to rely on an arbitration clause”  .
But how can we determine the court likely to hear the case on the merits in the presence of an arbitration clause?
The Court of Cassation answered this question in its judgment of 23 June 2021 , ruling that the supporting judge is not the same as the judge on the merits.
In this case, the High Court was asked to decide whether the court in whose jurisdiction the arbitral tribunal was to sit could be considered as the judge “likely to hear the case on the merits” and thus has territorial jurisdiction to rule on the implementation of investigative measures.
The Court of Cassation noted that none of the four defendant companies in the potential future proceedings on the merits had their registered office in the jurisdiction of the seat of the arbitration and that no investigative measures were to be carried out in that same jurisdiction. The Court of Cassation came to the conclusion that the president of the court of the seat of the arbitration did not have jurisdiction. In so doing, it considered that the judge of the seat of the arbitration could not be assimilated to the judge of the merits.
The Court of Cassation ruled that:
“In the presence of such a clause [arbitration clause], the state court likely to hear the proceedings on the merits is the one to which the dispute would be submitted if the parties, as they are entitled to do, did not avail themselves of the arbitration agreement“.
Thus, for the judges of the First Civil Chamber, the effects of an arbitration agreement on territorial jurisdiction are neutralised during the pre-arbitration phase.
In other words, prior to the trial on the merits before the arbitral tribunal, the parties who request investigative measures must disregard the arbitration clause stipulated in a contract concluded with a future defendant(s) to the arbitration.
Although in this judgment the investigative measures were requested by motion, the solution adopted by the Court of Cassation seems to us to be perfectly transposable to an emergency writ of summons.
What about the territorial jurisdiction of the judge when the contract stipulates a jurisdiction clause and no longer an arbitration clause?
II. Territorial jurisdiction of the court ruling on a request for measures of inquiry in futurum in the presence of a jurisdiction clause
The jurisprudential rule regarding territorial jurisdiction applicable to claims based on Article 145 of the Code of Civil Procedure recalled above remains perfectly applicable in the presence of a choice-of-jurisdiction clause.
However, it is yet to be determined which court is “likely to hear the case on the merits”: the one designated by the rules of the Code of Civil Procedure or the one designated by the parties?
The Court of Cassation has already asserted that the electio juris provision cannot be invoked against a claimant who, prior to the litigation on the merits, requests an investigative measure, in particular to avoid having to rule on the validity of this provision and its applicability to the future dispute .
In its judgment of 22 October 2020 , the Court of Cassation went further, ruling that the applicant could not rely on the jurisdiction clause at the stage of investigative measures on the grounds that the parties to the potential future litigation had not been identified with certainty.
In the present case, the applicant had claimed for investigative measuresto the president of the court which he considered to have territorial jurisdiction under a jurisdiction clause.
The order granting the request was revoked on the grounds that none of the measures requested had been carried out in the jurisdiction of the court originally seized and that the electio juris clause could not be invoked by the applicant, in particular because of its relative effect.
The Court of Cassation validated this analysis and ruled that the applicant could not rely on this clause to justify the jurisdiction of the court seized of a request for measures of inquiry in futurum.
By Clémence Lemétais d’Ormesson and Myriam Obadia for Litigation and Arbitration Department.
 Cass. 2nd civ. 18 November 1992, n° 91- 16.447; Cass. 2nd civ. 15 October 2015, n° 14-17.564 and n°14-25.654 :3
 Cass. 1st civ. 23 June 2021, n°19-13.350
 Cass. com, 16 February 2016, n°14-25.340
 Cass. 2nd civ, 22 October 2020, n°19-14.849