Judicial cross border litigation and/or international
arbitration proceedings reveal two distinct systems: common law systems
allow a comprehensive collection and disclosure of all existing
documents leading to admissible evidence, while civil law
systems—particularly in France — restrict disclosure of evidence to
documents that are admissible at trial and produced by the parties
themselves. Notably, limitations on United States (US) discovery rules
are imposed through the French blocking statute, which intends to
protect sovereignty of France as well as its economic and security
interests.
A French in-house counsel may be required to advise a
company — which may or may not be the subsidiary of a US company — which
has been requested to communicate documents and information within the
context of a US investigation in a civil or a commercial matter. The
in-house counsel will need to clarify the possible choices and risks the
company faces when dealing with discovery in France: (i) cooperate with
US authorities and be subject to sanctions in France relating to the
French blocking statute and/or the data privacy law, or (ii) invoke the
French protecting tools to refuse compliance with the US authorities'
request, leading to sanctions within the foreign proceedings.
Please see full alert here for more information.
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