opinion of the advocate general
LexInter | April 25, 2003 | 0 Comments

OPINION OF THE ADVOCATE GENERAL

Opinion of M. BENMAKHLOUF,

First Advocate General

The present appeals were formed on September 1, 2000 by Mr. Daniel X … against two judgments rendered on April 18, 2000 by the Paris Court of Appeal, in proceedings opposing him to Mr. Daniel Y ….

By judgment of March 21, 2002, the second civil chamber referred, with the visa of article L.131-3 of the Code of judicial organization, the appeals brought against these judgments before a mixed chamber.

The question asked concerns the consequences attached to non-compliance with a clause providing for a preliminary conciliation or mediation before any contentious action

** *ELEMENTS OF THE CAUSE

I – Facts and procedure

The spouses X … sold their participation in the capital of the company Le Point Service, operating a business of household appliances, to the spouses Y ….

They had previously stood surety for this company.

The deed of assignment, dated October 17, 1994, provided (article 5) that MY .. undertook to guarantee the assignors against the consequences of a call on their surety.

The act also provided (Article 10) that, for any dispute relating to the interpretation or execution of the contract, the parties undertake, prior to any legal proceedings, to submit their dispute to conciliators.

The company was placed in compulsory liquidation. The bank of the company then appealed to the surety of Mr X .. but the latter assigned as a guarantee MY .., who opposed him non-compliance with the prior conciliation clause.

By judgment of December 18, 1996, the Commercial Court of Corbeil ordered Mr X … to pay the sum of 330,198.72 F to the Banque Populaire Industrielle et Commerciale Région Sud (under a loan for the purchase of the fund of business) ; he condemned MY .. to guarantee it.

On the other hand, by judgment of November 14, 1997, the Evry district court ordered Mr X … to pay the sum of 19,050.50 F to the company Sygma Banque (it was a loan taken out for the purchase of a vehicle); he also said MY .. held to guarantee it.

By rulings of April 18, 2000, the Court of Appeal, reforming these decisions, declared inadmissible the calls in warranty lodged by MX …

II – Provisions invoked

Article 122 of the new Code of Civil Procedure
Constitutes an end of inadmissibility any means which tends to make declare the adversary inadmissible on his request, without examination on the merits, for lack of right to act, such as the lack of quality, the lack of interest, prescription, prefix period, res judicata.

Article 1134 of the Civil Code

Article 10 of the assignment contract
For any dispute that may arise between the parties relating to the interpretation or execution of these presents, the undersigned undertake to submit their dispute, prior to any legal proceedings, to conciliators, each parties by designating one, except in the event that they agree on the choice of a single conciliator.

This or these conciliators will endeavor to settle the difficulties which will be submitted to them and to have the parties accept an amicable solution within a maximum period of two months from their appointment.

Failing to reach an agreement, the courts of the place of the seat of the company will be only qualified.

III – Present theses

– According to a first thesis , since this dispute settlement procedure is contractual in nature, the parties are required to submit to it in good faith before resorting to a judge.

This obligation would not be contrary to article 122 of the new Code of Civil Procedure, public order not being concerned.

In these conditions, the end of inadmissibility should be admitted.

– According to a second thesis , only the grounds for inadmissibility provided for by the texts can be accepted by the judge.

To adopt the contrary view would amount to depriving the parties of their access to it, a right which they must be able to exercise in any event, whatever the stipulations of the contract.

– The sole ground of appeal criticizes the judgment ( 1st branch ) of having declared the action in warranty inadmissible while the judge cannot oppose grounds of inadmissibility which do not result from the texts (violation of the article 122 of the new Code of Civil Procedure).

He also accuses him ( 2nd branch ) of having thus ruled when the agreement, far from prohibiting the parties from taking legal action, was limited to deferring the referral to the judge until the end of the conciliation procedure ( violation of article 1134 of the Civil Code).

– The contested judgments both noted that the act of transfer provides in its article 10 for recourse to a conciliation procedure “prior to any judicial proceeding”, for “any dispute relating to the execution of these presents”.

They considered that the guarantee call precisely meets the definition contained in article 10 as constituting a dispute relating to the execution of the guarantee provided for in article 5 of the act.

They concluded that the warranty appeal was inadmissible “as it stands” (1) .

** *DISCUSSION

It follows from the elements set out above that, with regard to the provisions and principles of procedure, there are two conceptions of the scope of a contractual stipulation for the amicable resolution of disputes.

This leads to mentioning the contractual settlement of disputes and its limits.

I – Contractual settlement of disputes

1) The “MARC “

There is no need to underline the considerable development of amicable modes of conflict resolution (2)

In more and more fields, whether for small disputes of daily life or for disputes of a larger magnitude, the formulas of mediation, arbitration and conciliation seem to have the favor of the public.

They extend to areas (such as penal matters) in which rights which cannot be exercised are at issue.

Faced with this development, it has been said (3) that recourse to mediation and conciliations exercised by a third party will end up stifling the attempt at conciliation exercised by the judge himself. We have wondered (4) whether, in doing so, a kind of right to amicable settlement is not being outlined, competing with the right to a judge.

It was envisaged to make negotiation prior to referral to the judge – the “preliminary negotiation” – mandatory (5) .

The “alternative” methods of conflict resolution (the “MARC” (6) are now present in the texts. Thus, law n ° 98-1163 of 18 December 1998 relating to access to law and the amicable resolution of The main objective of conflicts was to promote the development of civil law Decree 96-652 of 22 July 1996 generalized recourse to mediation.

At the same time, these methods of settlement, often informal including in their terminology, require as rigorous a legal qualification (7) as possible.

From this point of view, the term “conciliation” used in the present case could be misleading, this term designating primarily one of the missions assigned to the judge.

But this term is also used in contractual matters (8), the parties being able, moreover, in accordance with article 127 of the new Code of Civil Procedure, “to reconcile spontaneously”.

In this case, it was a stipulation of the contract and we are indeed in the presence of a conventional settlement of disputes.

What, then, is the legal force of such a stipulation? What is the consequence of its non-compliance? More particularly, does this result in an “obligation not to take legal action” (9) (at least not immediately)?

2) The doctrine

According to authors (10), it is conceivable that the parties to a contract subordinate the admissibility of a legal claim relating to this contract to formalities (for example, an attempt at conciliation), which amounts to admitting the existence of contractual disqualifications.

In this regard, it would be incorrect to think that the law constitutes the only source of inadmissibility, contracts such as the insurance contract showing that an end of inadmissibility can perfectly be arranged by an agreement (11) .

On this subject, it was considered (12) that the conventional inadmissibility derives, in general, from the possibility for the parties to dispose of their right, and are confined within the limits that public order assign to this availability. But there is no outright renunciation of the right or even of the action. It is only a matter of conventionally arranging the methods of exercising the right in the event of a dispute.

With regard to the more specific question of waiver before any trial, we note (13) that access to justice being a prerogative of public order, no one can renounce the power which belongs to him or her to bring proceedings before the courts; in the case of an early waiver, at a time when no legal action has yet been taken and the plaintiff does not know the exact extent of his rights, the waiver is inevitably equivocal.

According to other authors (14), a stipulation of amicable settlement undoubtedly obliges the parties to submit beforehand before being able to take legal action, but it is only, as regards the achievement of an agreement, that an obligation of means: the parties must implement the clause and do their utmost to reach an agreement in good faith.

In principle, recourse to the mediator (understood here in the sense of the conciliator provided for in the contract in the present case) is an obligatory prerequisite for any referral to the judge or an arbitrator (15).

According to the same opinion, the contractual outcome is only the application of the principle of freedom of agreements to the solution of the dispute resulting from their non-performance; it is fully the expression of a common will, in its forecast as in its realization. In these conditions, the eviction of the judge carried out by these clauses is quite legitimate.

Finally, amicable settlement is never an obligation for the parties. If the agreement is not reached, it will be possible for one or the other to bring the dispute before the judge. Since the clauses passed in this area do not close the way of action but limit themselves to suspending it, it is possible to think that they give rise to a simple dilatory exception and not to an end of inadmissibility (16).

However, if there is a sanction for the violation of the clause providing for a prior conciliation, this sanction is as it stands the inadmissibility of the request (17).

Such is the doctrine or rather – as it is abundant – an outline of it on the subject.

3) Case law

Case law has had to rule on several occasions.

On the possibility of directly entering a court, it was ruled (18) by the first civil chamber that, with regard to implementing a guarantee under insurance (the insured being required to make a declaration to the (insurer for the purpose of appointing an expert), the relevant public policy provisions prohibit it from directly entering a court for the same purposes.

It is true that the inadmissibility of the legal action, not upheld by the Court of Appeal, was based in this case on the absence of prior recourse to a compulsory regulatory process. Other similar examples could be provided.

The third civil chamber, in matters of conciliation before the parity court for rural leases, had ruled (19) that the conciliation procedure is an essential formality for the regularity of all subsequent proceedings before this court; as soon as one of the parties has directly seized the latter, ruling in a trial court, the plea of ​​inadmissibility based on this irregularity must be upheld, when it was raised at the start of the proceedings .

But in this case, we were faced with a judicial conciliation, made compulsory by the provisions in force.

In the field, this time, extra-judicial, the same Chamber has ruled (20) that constitutes a plea of ​​inadmissibility likely to be proposed in any event the means supporting that the opinion of an official that it had been contractually planned to solicit before any legal action, had not been requested.

However, it was not really a question of submitting to a preliminary conciliation but of obtaining the opinion of a departmental director.

Probably more topically for the case examined, the commercial chamber ruled (21), on the basis of article 1134 of the Civil Code, that the desire of a party to waive a prior conciliation procedure cannot be deduce from the mere fact that it has not implemented it before being assigned.

This judgment censured the decision of a court of appeal which, in order to declare admissible the action of one of the parties, had considered that they had implicitly waived, in the face of the failure of attempts at reconciliation, a clause requiring them , before any contentious procedure, to submit their dispute to a conciliator.

It should be noted that another court of appeal (22) placed itself, faced with such a clause, not on the grounds of admissibility but on that of a stay of proceedings pending the outcome of the implementation of conciliation.

For its part, the Council of State ruled (23) inadmissible the request presented by an individual who, in disregard of an agreement signed with an intercommunal union, had failed to request an “arbitration” from the sub-prefect before any procedure. contentious.

As we can see, there is a tendency to admit the possibility of conventional inadmissibility and, therefore, the thesis of the inadmissibility of a legal action initiated before the preliminary conciliation.

To summarize these different elements of reflection in a formula, we can say that “the freedom to act has as a corollary the freedom not to act” (24).

This nonetheless raises the question of the limits of such methods of payment.

II – Limitations to the contractual settlement of disputes

1) Jurisprudential differences

In a decision of principle (25), the second civil chamber recalled, on the basis of article 122 of the new Code of Civil Procedure, that the judge cannot oppose pleas of inadmissibility which do not result from the texts ( the censored judgment considered that a party having failed to make known the address of his new domicile and thus not having complied with the injunction which had been made to him, his appeal was declared inadmissible).

He could be fully subscribed to this view (26)

As we have seen, several Chambers of the Court have had to rule on the more specific question of the conventional conciliation clause.

The second civil chamber had ruled (27)    that a judgment which considered that a provision of a contract should be analyzed as a conciliation clause, had been able to deduce that the fact of not respecting these contractual provisions could not be a cause of inadmissibility of the legal action.

One author has observed (28) that this was a decision rendered in a case where the qualification as a conciliation clause “appeared in reality very questionable” (this qualification, retained by the court of appeal, applied to an article of an association contract between doctors which stipulated “that in the event of a dispute, each partner must ask the other if he intends to submit the dispute to an arbitral tribunal”).

More recently (29 °, the same Chamber ruled that having noted that agreements contained a conciliation clause by which the parties had undertaken to submit their dispute to two conciliators before any contentious action, a judgment had rightly adopted that the legal action brought by a party without observing the procedure provided for by this clause is inadmissible.

In a commentary (30) to this decision, it was considered that this solution, which confers full legal effect on the conciliation clause, gives reason to the authors who saw in this stipulation an end of conventional inadmissibility; it asserts itself with all the more force, since in this case, the dispute did not relate to the execution of the contract but to its very validity.

According to the social chamber (31), a clause in the articles of association of a company providing for a prior attempt at conciliation before the departmental council of a professional order, which does not constitute an end of inadmissibility within the meaning of article 122 of the new Code of Civil Procedure, is not of public order and is not associated with any sanction.

Likewise, the first civil chamber ruled (32) that the clause of the professional contract subordinating a legal action to a conciliation of the parties by the ordinal authority, which does not constitute an end of inadmissibility, is not no public order and is not accompanied by any sanction.

Under these conditions, it was estimated (33) that a divergence between the first two civil chambers is probable, even if it can be observed that the mediation put in place in this last case seemed more institutional than contractual, which could explain the reluctance to recognize it as having a real impact (34).

The same Chamber also ruled (35) that a court of appeal, which had retained by a sovereign interpretation of the will of the parties when signing an agreement that the failure to observe the clause providing for a prior conciliation before any procedure did not constitute an end of inadmissibility to the legal action, which implied that this preliminary was not obligatory, had legally justified its decision.

As we can see, the options are diverse and sometimes divergent.

In an essay summarizing the decisions taken, one author (36) observed that to the question asked, the first civil chamber replied that the refusal was of no consequence, while the second civil chamber considered that the request was inadmissible, joining in this the solution given a few years ago by the commercial chamber, a solution itself in line with the spirit of a line of jurisprudence of the third civil chamber.

2) Food for thought

In this state of the case law and the comments it authorizes, several observations can be presented.

  1. A) In the first place, from apracticalpoint of view , it may be considered desirable that a party who, contrary to the intention manifested previously, prefers to have recourse immediately to the judge rather than to conciliation, be allowed to do so. : the amicable methods of conflict resolution presuppose the existence of a shared and maintained will to resolve any dispute in this spirit.

However, the process consisting in assigning the other party shows that the latter has become an “adversary”: the applicant shows that he has ceased to be motivated by an amicable will and that at the very least, he has become skeptical. as to the chances of successful completion of the path provided for in the contract.

In this vein, one author (37) wonders whether the parties can really and effectively be forced to engage in a conciliation phase under these conditions, even if they had, in advance, accepted the obligation by contract; he observes that conciliation supposes a minimum of consensus, which is no longer met when the clause is executed.

Consequently, it would no longer be useful to oppose at this stage, in an inflexible way, the clause to the party who refuses the preliminary conciliation; making this prerequisite mandatory, even if practiced in good faith, could only have the effect of postponing, in a dilatory manner – with consequences which can be seriously prejudicial in the event of delays (limitation, foreclosure, etc.) – the initiation of legal proceedings that have become inescapable.

  1. B) In the second place, the question arises of adoctrine of inadmissibility, according to which there could not be objections of inadmissibility of purely private origin, free from any link with the provisions in force.

No doubt, article 124 of the new Code of Civil Procedure provides that the pleas of inadmissibility must be upheld (…) even though the inadmissibility would not result from any express provision .

But does not this provision answer the question of whether admissibility – and not strictly speaking the objection of inadmissibility – must or not be provided for in a text (even if the two questions are obviously linked)? Can it not be argued, at the very least, that if an express provision is not required, inadmissibility must nonetheless result from the provisions in force?

It is also true that the enumeration of article 122 is considered (38) as non-exhaustive; this article gives illustrations of the lack of right to act which do not exhaust the list of the objections of inadmissibility, this list being even expressly indicative.

There are also grounds for inadmissibility in a number of other areas (family law, land registration, over-indebtedness, etc.). The lower courts sometimes tend to add new ones. We have been able to speak (39) of the “growths” of the end of inadmissibility.

However, should we not consider that Article 122, unless it is meaningless, sets a framework within which the objection of inadmissibility is admissible? Obviously, this provision is intended to reduce delaying practices.

From this perspective, one could not put on the same level, from the point of view of admissibility, the absence of recourse to a purely conventional conciliation, and the lack of the right to act (resulting from a lack of quality , ‘ interest , the prescription of a predetermined deadline or res judicata ) .

In the present case, it is recourse to conventional conciliators that is at issue and not, unlike what would happen if they were arbitrators (40), to judges: in the hypothesis examined, we find ourselves outside the jurisdictional sphere.

It is this aspect which causes difficulty and not the conventional origin in itself, which also exists, without this constituting an obstacle, in matters of arbitration.

The organization of the grounds for inadmissibility is part of that of the trial. It is understandable that this area cannot come under the sole contractual means (41), the grounds for inadmissibility cannot be of a purely private nature: they must be, if not provided for by law, at least result from it.

  1. C) Thirdly, we know thataccess to justice (42) – an aspect that the question examined leads to mention – belongs to the category of fundamental rights and freedoms.

The Constitutional Council has stated (43) that there cannot be substantial infringements of the right to exercise an effective remedy before a court.

The principle also results from international and European standards.

The European Court of Human Rights, in particular, considers (44), on the basis of Article 6-1 of the Convention, that the right to a judge (45) and, consequently, the right of access justice, must be guaranteed, in particular when it comes to challenges to civil rights and obligations.

It has been observed (46) that the restrictions on referral to a judge are, according to European decisions, in marked decline, so that everyone can find a judge and that no cause escapes judicial review.

Likewise (47), the obligation thus placed on States is a positive obligation that nothing should be able to hinder; neither the law nor the authorities can deprive a person of being heard by a judge when a civil right or obligation is involved.

Can we not consider, therefore and a fortiori, that the same applies when the obstacle to access to a judge lies in the provision of a contract providing for the purely private resolution of a dispute?

Without doubt, this must be a procedure whose outcome is – at least indirectly – decisive for the rights and obligations in question, the tendency of the European Court being, moreover, to define more and more broader concepts of rights and civil disputes (48).

Even if one considers that, in the present case, it is only a question of a procedural right, does it not nevertheless fall within the scope of Article 6 as being decisive for the exercise of the right in question (49)?

The fact that the deprivation of the “right of access to the judge” is in the present case provisional (it is recovered, or it can be, in the event of failure of the conciliation), does it lose this guarantee its essential character?

It has been observed (50) that the fundamental right of access to justice, to a court, within the meaning of Article 6, cannot be thwarted by a preliminary conciliation clause if one of the parties refuses to submit to it; moreover, it would be easy for him to submit to a simulacrum of conciliation in order to then be able to initiate his action.

We know, according to the constant case-law of the European Court (51), that the right to a court, of which the right of access constitutes one aspect, is not absolute and that it lends itself to implicit limitations, in particular in as regards the conditions of admissibility of an appeal. These cannot, however, restrict its exercise in such a way or to such an extent that it is reached in its very substance.

Likewise, these limitations must tend towards a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim pursued.

It was recalled (52) that while it is possible to waive under certain conditions (53) (absence of constraint, unequivocal nature of the waiver) certain guarantees of a fair trial – publicity, for example – the right to a court established by law cannot be waived in any way because, as the European Court has stated, “such a right is of capital importance and its exercise cannot depend solely on those concerned”.

According to the same authors (54), recourse to amicable settlement only results in a waiver (55) of the right to a judge. The condition of validity of the waiver is never more than an application of the classic rule according to which waivers are not presumed.

However, pronounces the European Court (56) in the legal system of the Contracting States, such waiver is frequently encountered in civil matters, in particular in the form of contractual arbitration clauses; it does not conflict “in principle” with the Convention.

Finally, we will also wonder whether the person concerned should be considered to have been clearly (57) informed of the limitation placed on his right to act, or even if he had benefited from an alternative method of settling the dispute (58 ) or even if he had used his “right to a judge deferred in time” (59).

3) Suggested solutions

Ultimately, it is all of these aspects that, in the present case, it is necessary to assess. They apparently allow two options.

1st option

Whatever the answer given to the question of access to the judge – and this answer could be negative -, the fact remains that if the word given in the contractual framework must obviously be respected (the sanction, even difficult, being that applicable in in the event of non-performance of a contractual stipulation), it should be remembered that the grounds for inadmissibility cannot be of a purely private nature but must be provided for by the provisions in force or at least result from them .

Otherwise, the risk would exist that, by means of inadmissibility of exclusively contractual origin, the trial organized within the state justice would be in a way partly “privatized” which would obviously be contrary to its sovereign nature: if the trial is “the thing of the parties”, it is not organized by them.

This point of view would not be such as to hinder recourse to amicable methods of conflict resolution or to slow down their development. It would only specify the necessary limits.

2nd option

If the first solution proposed could not be adopted, another solution would consist in admitting the thesis of inadmissibility, together with a provision providing for the suspension of the procedural deadlines during the compulsory preliminary conciliation procedure.

No doubt one could argue that the adage contra non valentem based on certain decisions, which are moreover old, would make it possible to avoid the risk of expiry of proceedings. But it may be considered preferable to rely on a certain basis by expressly providing for this suspension .

According to this option, the emphasis would be placed on the principle of contractual freedom and on the development of amicable modes of dispute resolution, as well as on that of the object of inadmissibility.

Finally, in addition to these two options , it would also be possible to consider that – as we have seen – the absence of recourse to compulsory conciliation does not necessarily amount to an end of inadmissibility but can take on a different legal nature. (procedural exception, for example).

However, that would perhaps be a question of a widening of the discussion in relation to the question raised in the context of the contested judgments.

  According to the first option, I therefore conclude with the cassation of these, on the first branch of the single means, the visa of article 122 of the new Code of civil procedure.

If, on the other hand, the other proposed solution were to prevail, this opinion would naturally tend to dismiss the appeals.

  1. On this formulation, cf.in particular Civ.3, May 23, 1991, Bull. n ° 150
  2. B. Oppetit, Arbitration, mediation and conciliation, Rev.arb., 1984, p.307 and s. ; C. Jarrosson, The notion of arbitration, LGDJ, 1987; on conciliation and mediation, v. P. Couvrat and G. Giudicelli-Delage, JC proc. civ., fasc. 160
  3. P. Couvrat and G. Giudicelli-Delage,op.prev.
  4. Guinchard, M. Bandrac, X. Lagarde and M. Douchy,inDroit processuel, Dalloz 1st ed., P. 703
  5. Cf. report by G. Bolard to the XXVth study days for solicitors of October 11, 1996 (GP, 2nd sem., 1997, p. 1125)

6.v. C. Jarrosson, Alternative methods of conflict resolution (RG proc., 1998, n ° 1, p. 161 et seq. And, as regards more specifically the question asked, p. 166 et seq.)

7 Obs. D. Cohen under Civ. 2, January 15, 1992, in Rev. arb., 1992, p. 646

8 On the distinction between conventional mediation and conciliation, C. Jarrosson, Rev. arb. 1996, n ° 4, p. 614

9 P. Grignon, The obligation not to take legal action, Mélanges Mouly (ed. Litec), p. 115 and s.

10 For example, Y. Desdevises, JC proc. civ., fasc. 128, n ° 39

  1. J. Vincent and S. Guinchard (Civil Procedure, ed. Dalloz, n ° 145), which evoke certain qualifications of the conciliation clause: procedural exception, cause of stay of proceedings, termination of inadmissibility …
  2. P. Hébraud and P. Raynaud, RTD civ., 1952, p.255, obs.about Civ. October 24, 1951 (D. 1952, p. 105, note A. Besson)
  3. R. Perrot, note under Civ.2, November 19, 1998, JC Procedures, January 1999, p.7 (judgment according to which the advance declaration not to go to court cannot constitute waiver of legal action if this declaration is ambiguous)
  4. Rev.arb.1996, n ° 4, p. 613, note C. Jarrosson supra; v. also obs. D. Cohen, also supra. For another point of view on the distinction between obligations of means and results, cf. X. Lagarde, “The effectiveness of conciliation or mediation clauses”, Rev. arb. 2000, p. 395
  5. L. Cadiet, Private Judicial Law, ed.Litec, No. 890;JC distribution contracts, fasc. 190, n ° 22
  6. Guinchard, M. Bandrac, X. Lagarde and M. Douchy,prev., p. 693
  7. C. Jarrosson, rev.arb.2001, p. 760 and s.
  8. Civ.1, October 28, 1997, JCP 1997, II, 22962, report P. Sargos
  9. Civ.3, February 15, 1978, Bull.n ° 83, JCP 78, IV, 125
  10. Civ.July 3, 5, 1989, Bull.n ° 158
  11. Com., November 28, 1995, appeal n °94-12.285;note C. Jarrosson supra.
  12. Fort-de-France, December 20, 1996, quoted by C. Jarrosson (inAlternative methods of conflict resolution, cited above) who considers that this suspension leads to “elastic respect for the prior conciliation clause by the judge”
  13. CE, December 9, 1991, Req.n ° 84308, Rec., p.423
  14. L. Cadiet, Discovering justice, ed.Dalloz, p.220
  15. Civ.2, February 10, 1988, Bull.n ° 41
  16. R. Perrot, RTDC, 1988, p.577
  17. Civ.2, January 15, 1992, appeal n ° 90-19.097;obs. D. Cohen cited above
  18. Note L. Leveneur, Contracts-conc.-cons., January 2001, n ° 2
  19. Civ.2, July 6, 2000, appeal n ° 98-17.827;RTD civ., April-June 2001, 359
  20. Obs.J. Mestre and B. Fages,in RTD civ., April-June 2001, 359, cited above
  21. Soc., June 6, 1990, appeal n ° 88-15.838;v.also Soc., January 26, 1994, bull. n ° 32, and February 6, 2001, appeal n ° 98-42.679
  22. Civ.1, January 23, 2001, Bull.n ° 11
  23. Obs.J. Mestre and B. Fages cited above
  24. For a critique of this point of view, v.J. Penneau, D. 2001, juris., P.3088
  25. 1st Civ., March 6, 2001, bull.n ° 58
  26. C. Jarrosson, rev.arb.2001, cited above, p. 749 and s.
  27. S. Guinchard,inMega new Code of Civil Procedure, ed. Dalloz, under art. 126, no.010
  28. v.in particular L. Cadiet, prev;J. Vincent and S. Guinchard, op. cit ., No. 145; S. Guinchard, op. cit., under art. 126, No. 003; J. Beauchard, JC proc. civ., fasc. 136, No. 29; G. Bolard, prev.
  29. J. Normand, RTD civ., 1981, p.684 and s.
  30. P. Level, Brief reflections on the office of the arbitrator,inMélanges Perrot, D. 1995, 259
  31. For the opposite thesis, see.in particular P. Grignon (op. cit., p. 126), who observes, however, that if an early renunciation of the right to institute legal proceedings seems conceivable due to the fact that the consent granted only prejudices the renouncer, the specificity of the obligation contracted requires that this waiver be limited
  32. On the decisions of the Court of Cassation relating to the guarantee of access to a court, cf.in particular S. Guinchard, M. Bandrac, X. Lagarde and M. Douchy,op. prev ., p. 321 and s.
  33. Cf. in particular decision 96-373 DC, April 9, 1996, statute of French Polynesia;from the doctrinal point of view, on this constitutionalization, v.L. Favoreu and L. Philip, The major decisions of the Constitutional Council (25-15); MY. Frison-Roche, Civil JC, art. 4, nos. 6 and 13; J. Vincent and S. Guinchard, op. cited above, No. 59; T. Renoux, JCP, 1993, I 3675, n ° 4
  34. February 21, 1975, c / United Kingdom, req.4451/70
  35. On this subject, and on the alternative modes, see.J. Buffet, Civil procedure and human rights,in The day after tomorrow, June-September 2001, p. 27-29
  36. ​​G. Cohen-Jonathan, “The right to judge”,inGoverning, administering, judging -Liber amicorum Jean Waline-, Dalloz 2002, p. 487
  37. JL CharrierinCode of the European Convention on Human Rights, ed. Litec, art. 6, no.30
  38. On these questions and the relevant decisions, see.G. Cohen-Jonathan, rec.Dalloz, “European Convention on Human Rights and Civil Procedure”
  39. June 23, 1993, v. United Kingdom (Series A 262, Berger, nos.1050-1056); October 28, 1998, c / Spain, req. 28090/95
  40. S. Guinchard, cited above,under art. 126, no.010
  41. Cf., for example (among many judgments), October 30, 1998, FE v. France, req.38212/97, n ° 44
  42. S. Guinchard, M. Bandrac, X. Lagarde and M. Douchy, op.prev., p.419 (citing the relevant decisions, in particular 25 February 1992, (req. 10802/84) -about essential rights such as the right to an impartial tribunal-)
  43. For an example of a waiver tainted with constraint (in criminal matters), February 27, 1980, c / Belgium, req.6903/75.For an example of waiver made within the framework of a mechanism (compensation for contamination) not presenting sufficient clarity and guarantees to avoid a misunderstanding as to the terms of the remedies offered and the limitations resulting from their exercise, December 4, 1995, c / France, req. 23805/94
  44. Page 693
  45. The Commission on Human Rights had stated (X. C / RFA, March 5, 1962) that the conclusion of anarbitration agreementamounting to a partial waiver of the exercise of the rights defined in the article 6-1, nothing in the Convention expressly prohibits such a waiver (quoted by J. Jarrosson in “Arbitration and the European Convention on Human Rights”, Rev. arb. 1989, n ° 1, p. 582, note n ° 33)
  46. February 27, 1980, c / Belgium, req.6903/75, cited above.F. Matscher, judge at the European Court, notes, in “Arbitration and the Convention” (Economica 1999, p. 281 et seq.), This compatibility in principle but underlines (p. 292) the need for control state
  47. 4 December 1995, c / France, req.23805/94, prev.
  48. February 27, 1980, c / Belgium, req.6903/75, prev.(transactional fine in criminal matters)
  49. S. Guinchard, M. Bandrac, X. Lagarde and M. Douchy,inDroit processuel, op. cit ., p. 305, 360, 361 (decisions cited relating in particular to the prior intervention of “administrative or corporate bodies”)

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