Court of cassation, civil, Chamber civil 1, 16 September 2020, n° 19-11621, Published in the bulletin
The company The Paragon Collection LLC, company of American law, has concluded with the French company XT Soft a license contract bearing on the commercialization and the distribution of IT products.
Following a dispute bearing on the amount of royalties, the company The Paragon Collection has assigned the company XT Soft before the District Court of California. By an order and a judgment of 22 September 2014, the American jurisdiction has condemned the company XT Soft to pay a sum of $ 502,391.15.
The company The Paragon Collection has seized our cabinet in 2016 in order to recover in France the claim that it holds on the company Xt Soft.
After having proceeded, the 10 March 2016, to a conservatory seizure on the bank account of the debtor, the company Paragon has assigned it, the 16 March 2016, before the High court of Pontoise in exequatur of the American decisions of justice.
The Judge of the execution of the High Court of Pontoise has by judgment of 6 March 2017 validated the conservatory bank seizure practiced on the foundation of the American judgments and in consequence rejected the request for mainlevée of the company Xt Soft.
By judgment in date of 20 February 2018, the High Court of Pontoise has granted the exequatur to the order as well as to the judgment of the District Court of California of 22 September 2014.
Seized of an appeal of the company Xt Soft, the Court of appeal of Versailles has infirmed the judgment of the High Court of Pontoise by decision of 25 January 2019 because of a purported contrariety of the American decisions of justice to the international public order French of procedure and this for their absence of notification to the company Xt Soft.
The Court of cassation, in its decision of 16 September 2020, cashes the decision of the Court of appeal of Versailles by visa notably of article 509 of the code of civil procedure:
“By determining itself thus, without researching, as it was asked, if the knowledge by the company XT Soft of the assignment and of the instance before the Californian jurisdiction did not demonstrate that its rights to the trial equitable and to the recourse effective, in the sense of articles 6 and 13 of the Convention of safeguard of the rights of the man and of the liberties fundamental, had been respected, notwithstanding the absence of notification of the decisions rendered, from the moment that it disposed of a delay of one year starting from the decision to form a recourse, of which it resulted that in regard to the circumstances of the species, the American decisions could not reveal of reach to the public order international of procedure, the court of appeal has deprived its decision of legal base.
The judge of the exequatur, of which the powers limit themselves to the verification of the conditions of the exequatur, cannot know of a request reconventional in responsibility founded on a fault which has not been committed during the instance of which it is seized.
To retain the responsibility of the company Paragon, the decision raises that the notification of the decisions of condemnation American after expiration of the delay of recourse characterizes a procedural disloyalty faulty, this maneuver having permitted the conservatory seizure of the bank account of the company XT Soft which presented, at the date of the seizure, a credit balance.
By stating thus, while the fault imputed to the company Paragon was foreign to the procedure of exequatur, the court of appeal has violated the text supra-mentioned.”
In doing so, the Court of cassation has followed the argument that our cabinet sustains in this file since the French jurisdictions have been seized of it in 2016.
The decision of 16 September 2020 inscribes itself implicitly in the continuity of the jurisprudence of the Court of cassation on the competence of the “foreign law of procedure” in order to determine if the notification of the judgment rendered abroad is, or not, required, this question not depending on the competence of the law of the forum (the Code of civil procedure French).
In the species, the law of California makes run the delay of appeal starting from the date of a judgment and not of a notification that it does not require, in such manner that the exequatur had justly been granted by the High Court of Pontoise then unjustly refused by the Court of appeal of Versailles.