Commercial litigation: Legal procedures and remedies

Introduction

Commercial disputes constitute an unavoidable reality of business life. Whether it is a contractual dispute, the recovery of unpaid debts or a dispute between B2B partners, mastery of the procedures and legal remedies available represents a major strategic issue. In France, companies have a diversified legal arsenal at their disposal, ranging from alternative dispute resolution methods (MARD) to litigation proceedings before the commercial court. This pillar guide explores in depth the different procedural avenues, the applicable evidentiary rules, the deadlines to be respected as well as the strategies to be favored depending on the nature and scale of the commercial dispute encountered.

Conciliation and mediation: priority amicable methods

Since Law No. 2016-1547 of November 18, 2016 modernizing justice for the 21st century, alternative methods of dispute resolution are widely encouraged, or even imposed for certain disputes. Conciliation, free and rapid, allows the parties to reach an agreement under the aegis of a court conciliator. Commercial mediation, for its part, involves a paid professional mediator, often chosen for their sectoral expertise.

These procedures have multiple advantages: confidentiality (article 21-3 of the law of February 8, 1995), speed (generally 1 to 3 months), controlled cost and preservation of commercial relationships. The agreement obtained can be approved by the judge to give it enforceability. Decree No. 2019-1333 of December 11, 2019 also requires a prior attempt at amicable resolution for disputes below 5,000 euros.

Commercial arbitration: private justice

Arbitration, governed by articles 1442 to 1527 of the Code of Civil Procedure, constitutes a preferred alternative for complex commercial disputes, particularly international ones. The parties appoint one or more arbitrators who will render an award having the authority of res judicata. The arbitration clause, now authorized in contracts between professionals (article 2061 of the Civil Code), makes it possible to anticipate this recourse from the conclusion of the contract.

Arbitration offers decisive advantages: technical expertise of the arbitrators, absolute confidentiality, procedural flexibility and international execution facilitated thanks to the New York Convention of 1958. On the other hand, its cost can be significant (arbitrator fees, institution fees such as the ICC or the CMAP). The European directives on legal harmonization also strengthen the mutual recognition of arbitral awards within the EU.

The procedure before the commercial court

When the amicable route fails, the commercial court remains the common law jurisdiction for disputes between traders. The procedure begins with a summons served by a bailiff, respecting the provisions of article 56 of the Code of Civil Procedure. Deadlines are crucial: the commercial limitation period is 5 years (article L. 110-4 of the Commercial Code), but certain specific actions fall under shorter deadlines.

The procedure on the merits can last 12 to 18 months at first instance. For urgent situations, the commercial summary procedure allows you to quickly obtain a provisional decision (order within 15 days to 2 months). The order to pay, a simplified procedure ideal for certain, liquid and payable debts, results in an enforceable order within a few weeks.

Administration of proof in commercial matters

The principle of freedom of proof governs commercial matters (article L. 110-3 of the Commercial Code). The parties can produce invoices, purchase orders, emails, SMS, WhatsApp exchanges, accounting records and certificates. The creation of a solid evidentiary file from the outset of the dispute is decisive.

The investigative measures in futurum (article 145 of the Code of Civil Procedure) make it possible to preserve evidence before any trial, in particular by bailiff's report or judicial expertise. Accounting or technical expertise often proves decisive in quantifying damage or demonstrating a contractual breach.