Arbitration analysis: On January 10, 2023, the Paris Court of Appeal set aside an award on the ground that the arbitral tribunal was not properly constituted (article 1520, 2° of the French code of civil procedure, hereinafter referred to as the ‘FCCP’) in light of the undisclosed nature of the president of the arbitral tribunal’s relation with the lead counsel for DIT, one of the two parties to the arbitration. Written by Marie-Laure Cartier and Alexandre Meyniel, Avocats au Barreau de Paris at Cartier Meyniel Schneller.

Arbitration analysis: the Paris Court of Appeal confirmed the first instance court’s decision finding that, in presence of an arbitration agreement, it will decline its jurisdiction, except if a ‘summary review’ (examen sommaire) reveals that the arbitration agreement is manifestly null or manifestly inapplicable. Written by Marie-Laure Cartier and Alexandre Meyniel, Avocats au Barreau de Paris at Cartier Meyniel Schneller.

Arbitration analysis: The representatives of a company in liquidation initiated International Chamber of Commerce (ICC) arbitration proceedings under a franchise agreement but saw their claims withdrawn after the respondents failed to pay their share of the advance on arbitration costs. When the claimants later resubmitted their claims before the commercial court of Pau, France, the respondents successfully challenged the court’s jurisdiction by invoking the arbitration clause in the agreement, at first instance and on appeal. However, the French Cour de cassation has now ruled that the principle of ‘procedural loyalty’ (loyauté procédurale) precludes parties that refuse to fund the arbitration costs from later challenging the jurisdiction of the state courts to hear the dispute. Thus, the respondents, having provoked the withdrawal of claims submitted to arbitration by failing to pay the advance on costs, could not subsequently invoke the principle of competence-competence before the state courts. Written by Gisèle Stephens-Chu, Avocate à la Cour and solicitor-advocate, Stephens Chu Dispute Resolution.

The CNIL has announced that France’s Council of State has upheld the CNIL’s fine of €35m on Amazon Europe Core for depositing cookies on users’ computers without prior consent or satisfactory information in 2020. In its decision, the CNIL found two violations (the deposit of cookies without prior consent and the failure to inform users) of Article 82 of the French Data Protection Act (transposing the e-Privacy directive). The Council stated that Amazon.fr’s banner prevented local users from being ‘clearly informed beforehand about the placing of cookies, in particular about the purposes of these cookies and the means to refuse them’, thus rejecting Amazon’s appeal against the penalty. The Council added that Amazon ‘has no grounds to request an annulment of the CNIL’s decision’.

Arbitration analysis: The Paris Court of Appeal dismissed an action for annulment brought against a partial award rendered on 18 March 2022 under the rules of the Chambre Arbitrale Internationale de Paris, ruling that the arbitral tribunal did not lack jurisdiction despite the co-existence of two concurring arbitration agreements referring to two distinct arbitral institutions in the contract. The court held that the ‘situation’ was not pathological. Written by Marie-Laure Cartier and Alexandre Meyniel, avocats au Barreau de Paris at Cartier Meyniel Schneller.

A royal privilege or branch of the royal prerogative subsisting in the hands of a subject, by grant from the Crown.

A franchise agreement is one under which a franchisor wishes to appoint a franchisee to sell its products (or services) in a particular territory.

This DEED OF Agreement is made on [insert date] Parties 1 [insert name] [of] [incorporated in [England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Franchisor); and 2 [insert name] [of] [incorporated in [England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Franchisee), each a party and together the parties. background: (A) The Franchisor has developed the Method and the Business. (B) The Franchisor [has applied to register OR is the registered proprietor of OR owns OR has the right to sub-licence] the Trade Marks. (C) The Franchisor wishes to appoint the Franchisee to run the Franchise Business in the Territory. (D) The Franchisee wishes, and is able, to accept such appointment. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Active Sales • has the meaning given in Article 8(7) of VABEO; [Adverse Change of Law • means the adoption, promulgation, modification or reinterpretation of any legal requirement by any Relevant Authority after the Effective Date which materially and adversely affects the Franchisor’s ability to enjoy the economic benefits of this Agreement or to enforce its rights under it. An Adverse Change

This DEED OF Agreement is made on [insert date] Parties 1 [insert name][ of] [ incorporated in[ England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Franchisor); and 2 [insert name][ of] [ incorporated in[ England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Franchisee), each a party and together the parties. BACKGROUND (A) The Franchisor has developed the Method and the Business. (B) The Franchisor [has applied to register OR is the registered proprietor of OR owns OR has the right to sub-licence] the Trade Marks. (C) The Franchisor wishes to appoint the Franchisee to run the Franchise Business in the Territory. (D) The Franchisee wishes, and is able, to accept such appointment. THE PARTIES AGREE: 1 Definitions and interpretation 1.1 In this Agreement: Active Sales • has the meaning given in Article 8(7) of VABEO; Annual Sales Target • means, for each Year, the Turnover set out in the Business Plan; Business • means the business of [specify], developed by the Franchisor and operated using the Method; Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England; Business Plan • means the business plan agreed by the parties and attached as Appendix 2; CMA

this DEED OF Agreement is made on [date] Parties 1 [insert name][ of] [ incorporated in [England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Franchisor); and 2 [insert name][ of] [ incorporated in [England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Franchisee), each a party and together the parties. BACKGROUND: (A) The Franchisor has developed the Method and the Business. (B) The Franchisor [has applied to register OR is the registered proprietor of OR owns OR has the right to sub-licence] the Trade Marks. (C) The Franchisor wishes to appoint the Franchisee to run the Franchise Business in the Territory. (D) The Franchisee wishes, and is able, to accept such appointment. the parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Active Sales • has the meaning given in Article 8(7) of VABEO; [Adverse Change of Law • means the adoption, promulgation, modification or reinterpretation of any legal requirement by any Relevant Authority after the Effective Date which materially and adversely affects the Franchisor’s ability to enjoy the economic benefits of this Agreement or to enforce its rights under it. An Adverse Change of Law

This DEED OF Agreement is made on [insert date] Parties 1 [insert name][ of] [ incorporated in[ England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Franchisor); and 2 [insert name][ of] [ incorporated in[ England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Franchisee), each a party and together the parties. BACKGROUND (A) The Franchisor has developed the Method and the Business. (B) The Franchisor [has applied to register OR is the registered proprietor of OR owns OR has the right to sub-licence] the Trade Marks. (C) The Franchisor wishes to appoint the Franchisee to run the Franchise Business in the Territory. (D) The Franchisee wishes, and is able, to accept such appointment. THE PARTIES AGREE: 1 Definitions and interpretation 1.1 In this Agreement: Active Sales • has the meaning given in Article 8(7) of VABEO; Annual Sales Target • means, for each Year, the Turnover set out in the Business Plan; Business • means the business of [specify], developed by the Franchisor and operated using the Method; Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England; Business Plan • means the business plan agreed by the parties and attached as Appendix 2; CMA

This Agreement is made on [insert date] Parties 1 [insert name] [of OR incorporated in [insert jurisdiction, eg England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Seller); 2 [insert name] [of OR incorporated in [insert jurisdiction, eg England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Buyer); and 3 [insert name] [of OR incorporated in [insert jurisdiction, eg England and Wales] under number [insert company number] whose registered office is at] [insert address] (the Franchisor), (each a party and together the parties). Background (A) The Franchisor has licensed the Seller to operate the Franchise Business. (B) The Seller has agreed to sell and the Buyer has agreed to purchase the Franchise Business as a going concern on the terms and conditions of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Applicable Data Protection Law • means any applicable law relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Business, including: (a) the GDPR; (b) the Data Protection Act 2018;