🎤Choix et embranchements de compétences lorsqu'un enjeu de vigilance est allégué (Choice and Branching of Jurisdiction when a Vigilance issue is Alleged), in 🧮Le Droit processuel de la Vigilance (Vigilance General Procedural Law)

I. INSTITUTIONAL JURISDICTION REFLECTS THE MATTER IN DISPUTE: THE DIFFICULTY LINKED TO JURISDICTION ARISES FROM THE NOVELTY AND SPECIFICITY OF VIGILANCE, THIS MATTER IN DISPUTE WHICH CANNOT BE LINKED TO A TRADITIONAL PROCEDURE

Because the procedure can never be completely separated from the merits, the difficulties of knowing which judges should or could hear it, this primary question of jurisdictional competence, could only be resolved by referring to the merits of the case, linked to the last act of the judgment. And the more we believe we could resolve the primary question of jurisdiction from the assured pen of the French Legislator, the more difficulties were bound to arise, because the matter in dispute goes far beyond Civil Law, at least in the traditional conception of it. Indeed, because Jurisdiction is linked to the matter in dispute (civil courts/civil matters, etc.), it is still necessary to know what 'Vigilance' relates to.

Thus, if we see Vigilance as having the "Monumental Goal" of defending (in advance) weak and isolated victims against heartless companies that are damaging the planet and trampling on human rights, and have the intention of continuing to do so, we will see the appearance of the figure of the criminal court, or at the very least a judge who punishes.

If we see the Vigilance plan as a management act forming part of the strategy of a global company, we will see the emergence of the figure of the commercial court, or at least of a judge who finds solutions to ensure that the local infrastructure operations continue.

If we see Vigilance as the regulatory system of social relations through an alliance between supervised private powerful entities (with an emerging AAI) and the State, we will see the emergence of the figure of the administrative court or at least of a judge who conceives of his/her office as Ex Ante and in support of a company that orders and administers what it has objectively structured: the chain of activities.

If we see Vigilance as a method of managing risks and preventing disasters by processing information and connecting data and probabilities, we will see the emergence of inter-regulation based on the banking model, a model that would cease to be the exception and become the paragon, in its power, its understanding of the future and its weak concern for individual rights to ensure the sustainability of our society.

Vigilance may be all of these things, or at any case, some argue passionately that it is this or that. And as a result, they maintain that its "natural judge" is this or that.

But jurisdictional competence is also the idea that courts are divided up because the judge cannot know everything (the civil judge only masters civil matters, etc.). Now, if Vigilance is about Regulation, then very concretely, the legally competent judge encounters a problem of technical competence.

When we read the comments, we notice that, sometimes in an acerbic tone, the professors demand that the judges know everything, that they literally have "all the competences", i.e. "all the skills", that they regulate everything by adding up all the powers, that they are at once the ones who punish, the ones who find solutions, the ones who reconcile, the ones who allow companies to do what they are mandated to do by the law.

This question of the technical competence of Judges to understand Systems is central: this is why the jurisdictional designation of the civil judge is perfectly admissible if his/her technical competence for understanding the systems in question (value chain system, social system, international economic system, environmental system, etc.) is apprehended by judges of fact specialised by chambers instituted by the courts themselves.

The spontaneous creation of specialised chambers, first at the Paris Court of Appeal, then at the Paris First Judicial Court, was the right solution, indeed the only solution, to the jurisdictional competence conferred by Law when Vigilance encompasses all dimensions.

And rightly so, given the Monumental Goals being pursued (saving the planet, protecting individuals caught up in information and disinformation systems, protecting human rights), the civil judge is being asked to punish in advance, to regulate, to provide solutions, to reconcile, by staying as close as possible to the case, a case in which a complete system is involved: in this case, the system structured by contracts that is a "value chain", implying the future of a complete system.

If there is passion about this issue of competence, it is because under the figure of the judge, it is the very definition of Vigilance that we want to draw. The violence of the comments shows what is at stake.

However, it is inevitable that not all litigation will be handled by Chamber 34 of the Paris Court of First Instance, since the specific nature of Vigilance does not rule out Criminal Law, Banking Law, Financial Law, Public Law, Competition Law and Distribution Law, to name but a few.  It is possible that if the litigation remains in Paris, this will be offset by the uniqueness of the economic division of the Paris Court of Appeal. But there are other courts that have not been eliminated either, such as the French Conseil d'Etat and the European courts, which do not converge on this Court.

II. THE BRANCHES OF LAW CANNOT DISAPPEAR, NOR CAN THE RELATED LITIGATION

But, as practice has begun to show, vigilance does not erase the current branches of the Law.

To begin with, activity chains are structured by contracts. These contracts are "organisational contracts" which structure these chains over time in a durable manner, translating the sustainability principle. Contract Law therefore applies to them. Contract judges therefore have jurisdiction if there is a defect in consent, if there is a request for compulsory performance, etc. This includes cases where the defect in formation or performance is part of a Vigilance requirement.

The specialised Chamber of the Paris Court of Appeal also tried to beat its own drum by writing in an obiter dictum in one of its judgments of 18 June 2024, the so-called Suez judgment!footnote-3855, that the duty of vigilance is merely an illustration of a general duty set out in the French Civil Code. If one can rely on the Civil Code itself, which is ordinary general law, then one can refer the matter to the general law court if one can link one's allegation and claim to the general law of contract and liability, tinged with a duty of vigilance. In their comments, the associations have emphasised this perspective, because having two judges rather than one is like having two arrows in the bow.

Specialists in Competition Law have pointed out that Distribution Law, which is often the legal translation of the chain of activity from suppliers to suppliers, is directly affected by the sudden breaks that are prohibited by French legislation in this sector but required by ethical charters, commitments and vigilance clauses. How to exclude the commercial courts ?

Similarly, we welcome the Climate and Resilience Act, which excludes from public contracts companies that have not complied with their vigilance obligations. How can the administrative courts be excluded from the litigation that will arise from this exclusion?

What goes around comes around. And the natural judges of Contract, Competition, of State, etc., are making a comeback. Would it be a good idea to wipe them off the map again? There are several proposed solutions to a difficulty that arises not from the good or bad will of the parties involved, but from the litigious subject matter itself.

IV.  THE SOLUTION OF FOLLOWING THE LAW TO THE LETTER BY GIVING EVERYTHING TO THE PARIS FIRST JUDICIAL COURT: THE IMPASSES PRODUCED AND SOME SOLUTIONS

The second point concerns the need to anticipate the 'litigation strategies' of both plaintiffs and defendants, who will use their skills to win every time, when they could have lost. It is possible to reproach them to do so. It is essential to face up to the difficulties faced by the courts.

For the time being, two procedural solutions are proposed. The first is to take the letter of the French Code of Judicial Organisation and stipulate that as soon as a "vigilance issue" or at least a "vigilance plan" is raised, all litigation is transferred to the Paris Court of First Instance.

It's simple and straightforward. In fact, that's what the legislator wanted.

But , there is a risk of a "Bibendum effect" for the Paris Court of First Instance, with a windfall effect paradoxically evoking vigilance on the part of those subject to the law in cases where it is not involved.

Indeed, the best solution is to create a specialised chamber, to train judges in non-civil litigation matters (a more English conception of the "common law judge", a move towards common law which is an unexpected effect of French law), to give them more resources and to provide them with assistance (amici curiae, for example).

V. THE BRANCHING SOLUTION BASED ON THE "BASIS OF DEMAND": THE IMPASSES PRODUCED AND SOME SOLUTIONS

The second solution, proposed by the French judge François Ancel in particular, is to isolate the vigilance plan from all the other elements of Vigilance, the first being only one element of the latter, and to retain only actions "based" on the vigilance plan.

Any Motulskian can only follow this usage of the "basis of the claim" and then retain this articulation between the principal and the accessory, rather the special law and the general law, which is still difficult to handle.

The disadvantage is that this necessarily leads to a lengthening of procedures, since there is then a stay of proceedings, which is an established disadvantage, and a risk, namely differences of opinion on the merits: because not everything is in Paris.

Here again, the courts that can deal with these matters - the Paris Commercial Court and the Nanterre Court of First Instance - can incorporate this concern for systemic vigilance disputes into a specialised chamber, and can train magistrates.

VI THE BEST SOLUTION: ADMIT THE IRREDUCIBILITY OF THE MATTER IN DISPUTE AND FORM LASTING JURISDICTIONAL ALLIANCES BETWEEN JUDGES AND LAWYERS, ENCOURAGE AGREEMENTS

These two solutions, which are the least bad (and therefore the best), must be articulated in the face of a difficulty that cannot be ironed out because it reflects the very nature of the Vigilance dispute, which is normatively founded in Monumental Economic and Humanist Goals in the formulation of which the sovereignty of States and Europe is expressed and supported with companies that must take stakeholders into consideration.

In practice, this means that alliances de facto and in jure , for instance by protocols, must be made, and upstream, between the courts concerned, between the parties in a more adversarial procedure, between the lawyers themselves, and between the judges and the lawyers in the preparation of the case, particularly with regard to the timetable.

We have seen that for the question of "technical competence", it was the courts themselves (the Paris Court of Appeal, then the Paris First Judicial Court) that created the chambers and then organised the trainings. In the same way, through alliances between courts, particularly in terms of timetables, what seems insoluble on paper can find a solution. In this way, what appears to be resolved on paper (by deleting all the jurisdictions except the Paris Court of First Instance, which cannot be) and leads to numerous difficulties in practice that appear insoluble, could be resolved, particularly if the Ministry of Justice is willing to encourage this dialogue between jurisdictions in the organisation of proceedings.

But this is to leave aside the question of jurisdictional competence and enter into the procedural question of readiness to proceed, topic of another speech.

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