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Fate of the Unilateral Option Clause Finally Decided in Russia

By: Yele­na E. Archiyan[*]

For years, arbi­tra­tion courts in Rus­sia have upheld over and over again the valid­i­ty of the so called uni­lat­er­al option clause (“UOC). But every­thing changed on June 19, 2012, when the Pre­sid­i­um[1] of the high­est arbi­tra­tion court of the Russ­ian Fed­er­a­tion[2] held in Russ­ian Tele­phone Com­pa­ny v. Sony Eric­s­son Mobile Com­mu­ni­ca­tions Rus that such claus­es are invalid and unen­force­able.[3] In 2009, Russ­ian Tele­phone Com­pa­ny (“RTC”) entered into an agree­ment with the Russ­ian sub­sidiary of Sony Eric­s­son, Sony Eric­s­son Mobile Com­mu­ni­ca­tions Rus (“Sony Eric­s­son”) for the dis­tri­b­u­tion of Sony Eric­s­son phones.

The dis­pute res­o­lu­tion clause (“Clause”) of the dis­tri­b­u­tion agree­ment, in rel­e­vant part, said:

Any dis­pute aris­ing in con­nec­tion with this Agree­ment … will be resolved in accor­dance with the Rules of Con­cil­i­a­tion and Arbi­tra­tion of the Inter­na­tion­al Cham­ber of Com­merce.… The arbi­tra­tion clause does not lim­it Sony Ericsson’s right to apply to a court of com­pe­tent juris­dic­tion with a claim to recov­er the amounts owed for prod­ucts deliv­ered.[4]

As is evi­dent from the Clause, while both par­ties had the right to have a dis­pute decid­ed through arbi­tra­tion, Sony Eric­s­son was giv­en an addi­tion­al, uni­lat­er­al right to lit­i­gate in a court of com­pe­tent juris­dic­tion. When issues with the qual­i­ty of Sony Eric­s­son prod­ucts arose, RTC, dis­re­gard­ing the Clause, filed suit in the Moscow Com­mer­cial Court, where it sought the replace­ment of the alleged non­con­form­ing prod­ucts.

 

The Find­ings of the High­est Arbi­tra­tion Court of the Russ­ian Fed­er­a­tion

By the time the case was referred to the Pre­sid­i­um, three courts below had refused to inval­i­date the Clause based on the prin­ci­ples of par­ty auton­o­my and free­dom of con­tract.[5] The Pre­sid­i­um reversed the deci­sions of the low­er courts. A guar­an­tee of judi­cial pro­tec­tion and fair pro­ceed­ings, the Pre­sid­i­um rea­soned, requires grant­i­ng both sides an equal oppor­tu­ni­ty to bring their posi­tions rel­a­tive to all aspects of the case to the court’s atten­tion. Only then can judi­cial protection—which should be fair, com­plete, and efficient—be ful­ly real­ized.[6] The prin­ci­ples of com­pe­ti­tion and equal­i­ty of the par­ties sug­gest grant­i­ng those par­tic­i­pat­ing in the court pro­ceed­ings equal pro­ce­dur­al oppor­tu­ni­ties to assert their rights and legal inter­ests. Based on the gen­er­al prin­ci­ples of imple­men­ta­tion of the pro­tec­tion of civ­il rights, the Pre­sid­i­um stat­ed, a con­tract can­not con­fer a right to resolve dis­putes in a state court on one side and deny the same right to the oth­er.[7] In sup­port of its deci­sion, it cit­ed sev­er­al cas­es from the Euro­pean Court of Human Rights, as well as the Euro­pean Con­ven­tion on Human Rights.[8] To ensure uni­for­mi­ty, the Pre­sid­i­um warned that an agree­ment con­tain­ing a UOC will be con­sid­ered invalid as vio­lat­ing the bal­ance of the par­ties’ rights.[9] There­fore, the par­ty whose right is vio­lat­ed is with­in its right to seek redress in a state court.[10]

 

Analy­sis

The Presidium’s deci­sion is sig­nif­i­cant because it cre­ates uni­for­mi­ty in, and pro­vides direc­tion to, low­er arbi­tra­tion courts in Rus­sia. The deci­sion also pro­vides clear guid­ance and pre­dictabil­i­ty for future con­tracts: par­ties would be well advised to include a dis­pute res­o­lu­tion clause that calls for arbi­tra­tion exclu­sive­ly. The effect of the deci­sion is that it turns the uni­lat­er­al option into a bilat­er­al option, mean­ing that if arbi­tra­tion is avail­able to both par­ties, but lit­i­ga­tion only to one par­ty, since the sec­ond part of the clause is void, both par­ties are able to ini­ti­ate a court action. Although the deci­sion states, “[w]here such an agree­ment is con­clud­ed, it is invalid as vio­lat­ing the bal­ance of the par­ties’ rights,”[11] it would make lit­tle sense for the lit­er­al mean­ing of this sen­tence to con­trol and sug­gest that the entire dis­pute res­o­lu­tion clause, includ­ing the arbi­tra­tion pro­vi­sion, is void. Instead, this state­ment should be read in con­junc­tion with the fol­low­ing state­ment: “A par­ty whose right is infringed upon by such an agree­ment on dis­pute res­o­lu­tion also has the right of recourse to a com­pe­tent state court.”[12] This inter­pre­ta­tion makes sense because inval­i­dat­ing the entire res­o­lu­tion clause would mean com­plete­ly over­look­ing the forum selec­tion clause. Such a result would be an exces­sive sanc­tion since the arbi­tra­tion pro­vi­sion gives equal rights to both par­ties and does not vio­late their pro­ce­dur­al due process rights. An exclu­sive arbi­tra­tion clause in a con­tract would nor­mal­ly be upheld. Based on the Presidium’s deci­sion, it appears that the only way to avoid lit­i­ga­tion is to have an exclu­sive arbi­tra­tion clause.

Although some guid­ance, as men­tioned in the pre­ced­ing para­graph, exists, it is min­i­mal when con­sid­er­ing the num­ber of unan­swered ques­tions. The Pre­sid­i­um inval­i­dat­ed the UOC in a pure­ly domes­tic dis­pute, since both par­ties are com­pa­nies orga­nized under Russ­ian law,[13] but left unan­swered whether a UOC in an inter­na­tion­al con­tract would also be deemed void. This ques­tion becomes rel­e­vant when con­sid­er­ing enforce­ment of arbi­tral awards and for­eign court judg­ments in Rus­sia.   

In regards to arbi­tral awards, it is unlike­ly that Russ­ian state courts will refuse to enforce them, even in pure­ly domes­tic cas­es. Based on the fact that the Court’s ratio­nale was pred­i­cat­ed on the prin­ci­ple of pro­ce­dur­al due process, in a hypo­thet­i­cal sce­nario that con­cerns the same clause but involves the par­ty with the uni­lat­er­al right to seek lit­i­ga­tion going to arbi­tra­tion instead, a Russ­ian state court would most like­ly enforce an arbi­tral award ren­dered on the mer­its. The same would be true if one par­ty was Russ­ian and the oth­er for­eign, regard­less of which par­ty had the uni­lat­er­al right. This sit­u­a­tion does not offend the weak­er party’s pro­ce­dur­al due process rights because the uni­lat­er­al option is not invoked.

The result would most like­ly be dif­fer­ent with respect to enforce­ment of court awards uphold­ing a UOC and ren­der­ing a deci­sion on the mer­its. Using the above hypo­thet­i­cal, if the par­ty with the uni­lat­er­al right ini­ti­at­ed a law­suit in a court hav­ing com­pe­tent juris­dic­tion out­side the Russ­ian Fed­er­a­tion instead of resolv­ing the dis­pute through arbi­tra­tion, and that court ren­dered a judg­ment, a Russ­ian state court would most like­ly refuse to enforce it. Unlike the above sit­u­a­tion, this hypo­thet­i­cal does offend the oth­er party’s right to pro­ce­dur­al due process because only one side had the option to lit­i­gate, and that option was invoked.

In addi­tion to pro­ce­dur­al fair­ness con­sid­er­a­tions, judg­ment and arbi­tral award hold­ers must pass anoth­er hur­dle before their judg­ment or award can be enforced in Rus­sia. Pur­suant to Arti­cle 241 of the Com­mer­cial Pro­ce­dure Code of the Russ­ian Fed­er­a­tion, a Russ­ian com­mer­cial court will rec­og­nize a deci­sion of a for­eign court, an award of an arbi­tra­tion tri­bunal, and an award of an inter­na­tion­al com­mer­cial arbi­tra­tion court ren­dered in a for­eign coun­try only if “the recog­ni­tion and enforce­ment of such judg­ments is stip­u­lat­ed in an inter­na­tion­al treaty of the Russ­ian Fed­er­a­tion and in fed­er­al law.”[14] The prob­lem is, if Rus­sia has not signed a treaty with a coun­try in which the judg­ment or arbi­tral award was ren­dered, there can be no enforce­ment. There is evi­dence that this may be chang­ing, how­ev­er. The High­est Arbi­tra­tion Court has heard a few cas­es in which it held that based on the inter­na­tion­al law prin­ci­ples of reci­procity and comi­ty, a Russ­ian state court would enforce a for­eign judg­ment if that coun­try would enforce a judg­ment ren­dered in Rus­sia.[15] The exis­tence of these favor­able deci­sions makes this rule far from absolute, how­ev­er. Sev­er­al grounds for non-enforce­abil­i­ty exist, includ­ing the pub­lic pol­i­cy excep­tion,[16] which has been con­strued very lib­er­al­ly in the past and is sub­ject to abuse based on polit­i­cal and diplo­mat­ic rela­tions between Rus­sia and the coun­try in which the judg­ment is ren­dered.[17]

With respect to arbi­tral awards only, although Rus­sia is a par­ty to the New York Con­ven­tion, not only has it made two reser­va­tions,[18] there are also numer­ous instances where Russ­ian arbi­tra­tion courts have refused to enforce arbi­tral awards for rea­sons oth­er than those relat­ed to the reser­va­tions. The most com­mon rea­son for non-enforce­ment is that the award is con­trary to pub­lic pol­i­cy.[19] Relat­ed to the pub­lic pol­i­cy ground is the courts’ con­sid­er­a­tion that a vio­la­tion of manda­to­ry Russ­ian rules is a vio­la­tion of Russ­ian pub­lic pol­i­cy.[20] Oth­er rea­sons for non-enforce­ment include pro­ce­dur­al vio­la­tions and inva­lid­i­ty of agree­ment to arbi­trate, which, like the pub­lic pol­i­cy excep­tion, are valid grounds. Some­times, how­ev­er, cor­rup­tion plays a role in a Russ­ian court’s refusal to enforce an arbi­tral award.[21] For this rea­son, investors are some­times con­cerned about seek­ing arbi­tra­tion with Russ­ian par­ties.[22] There is a lev­el of dis­trust of the Russ­ian judi­cia­ry due to the exis­tence of cor­rup­tion with­in that branch, as well as the exec­u­tive branch. These dif­fi­cul­ties in get­ting court judg­ments and arbi­tral awards enforced may explain why UOCs allow­ing for lit­i­ga­tion (in Rus­sia) are includ­ed in agree­ments between for­eign and Russ­ian com­pa­nies.[23]

 

Uni­lat­er­al Claus­es in the Inter­na­tion­al Com­mu­ni­ty

The law on UOCs is still either unclear or unde­vel­oped in most states, but there has been a recent trend in sev­er­al states to inval­i­date claus­es con­tain­ing uni­lat­er­al options.[24] Of par­tic­u­lar sig­nif­i­cance is a recent French Cour de cas­sa­tion deci­sion that, like the Pre­sid­i­um, inval­i­dat­ed a uni­lat­er­al juris­dic­tion clause in a con­tract between a bank and its client. In Ms. X v. Banque Privee Edmond de Roth­schild,[25] the dis­pute res­o­lu­tion clause called for Lux­em­bourg law to gov­ern the rights and oblig­a­tions of the par­ties, and fur­ther that dis­putes between the par­ties “will be sub­ject to the exclu­sive juris­dic­tion of the courts of Lux­em­bourg.”[26] The bank had the addi­tion­al “right to act in the court where the client has her domi­cile or any oth­er court of com­pe­tent juris­dic­tion.”[27] Hav­ing had the ben­e­fit of see­ing what the Russ­ian court did with the UOC in RTC v. Sony Eric­s­son, and what Bulgaria’s High­est Court did a year ear­li­er,[28] and per­haps fol­low­ing in their foot­steps, the French court, apply­ing its own law, inval­i­dat­ed the clause on the basis of its potes­ta­tive nature, effec­tive­ly dis­re­gard­ing the agree­ment that Lux­em­bourg law apply.[29] Unlike the Presidium’s approach in “bilat­er­al­iz­ing” the UOC, the French court inval­i­dat­ed the clause in its entire­ty. Although the ratio­nale for inval­i­da­tion in the two cas­es is not iden­ti­cal, the under­ly­ing prin­ci­ple in both is fair­ness. The French court did not explic­it­ly say that the clause vio­lat­ed the client’s pro­ce­dur­al due process rights, but it did base its deci­sion on lack of mutu­al­i­ty of oblig­a­tion. Inher­ent in the potes­ta­tive con­di­tion is the idea that one par­ty has rights that the oth­er par­ty does not.

Unlike RTC, a pure­ly domes­tic case, Ms. X is an inter­na­tion­al case that involves France and Lux­em­bourg. The plain­tiff was domi­ciled in Spain. But even if the case had been pure­ly domes­tic, the result would have most like­ly been the same. The French court’s rea­son­ing did not appear to be based on the case’s inter­na­tion­al sta­tus. Its con­cern was not juris­dic­tion or the par­ties’ ori­gins. Instead, the con­cern was the provision’s giv­ing one par­ty rights not avail­able to the oth­er. Fur­ther, the notion of potes­ta­tiv­ité is French. The Cour de cas­sa­tion could have inval­i­dat­ed the clause because it was incom­pat­i­ble with Arti­cle 23 of Brus­sels I, which was the rea­son­ing the low­er courts used. Instead, the court used a domes­tic French law con­cept. What is clear at this point is that par­ties enter­ing into inter­na­tion­al con­tracts con­tain­ing such pro­vi­sions have to assess whether there is any pos­si­bil­i­ty that French law will apply (includ­ing through anoth­er state’s con­flict of law rules or by way of a choice of law clause in a con­tract) because through this deci­sion, the French court has spo­ken that it finds one-sided agree­ments intol­er­a­ble.[30] Although the Court did not address the effect of its deci­sion on claus­es such as the one in the RTC case (both par­ties have the option to arbi­trate, but only one has the right to lit­i­gate),[31] there is no indi­ca­tion in the deci­sion that it would treat them any dif­fer­ent­ly.

Ambi­gu­i­ty also sur­rounds potes­ta­tive con­di­tions them­selves. For exam­ple, would the result have been dif­fer­ent if instead of say­ing that the bank could choose among a cou­ple of fora, the agree­ment sim­ply list­ed eli­gi­ble courts? Per­haps that would have been a weak­er case for the French court to sanc­tion. On the oth­er hand, if the bank had more options, even if they were express­ly lim­it­ed, than the client had, that would vio­late Arti­cle L.422–6 of the French Com­mer­cial Code.[32]

Prob­lems with enforce­ment are just as like­ly in France as they are in Rus­sia. For exam­ple, for exe­quatur (writ of exe­cu­tion) to be grant­ed, the for­eign judg­ment must not be per­ceived as con­tra­ven­ing French law.[33]

 

Con­clu­sion

It is becom­ing increas­ing­ly evi­dent that the glob­al trend today is to inval­i­date UOCs. Courts all over the world are demon­strat­ing that fair­ness pre­vails over par­ty auton­o­my and the intent of the par­ties’ prin­ci­ples. The ratio­nale in all of these cas­es is root­ed in the prin­ci­ples of jus­tice and pro­ce­dur­al due process. In many con­tracts con­tain­ing UOCs, it is often the case that the weak­er par­ty is placed at a dis­ad­van­tage in rela­tion to its part­ner. By inval­i­dat­ing UOCs, courts are putting both par­ties on equal foot­ing with respect to dis­pute res­o­lu­tion. The deci­sions dis­cussed in this Arti­cle are still new, and many ques­tions regard­ing inter­pre­ta­tion and appli­ca­tion remain unan­swered. Whether or not these deci­sions spark a rev­o­lu­tion in the way UOCs are regard­ed in the future remains to be seen, as many courts in juris­dic­tions where UOCs are cur­rent­ly valid have not reeval­u­at­ed their deci­sions in decades while courts in oth­er juris­dic­tions have yet to rule on their sta­tus.

 


* New York Uni­ver­si­ty School of Law, LL.M. in Inter­na­tion­al Busi­ness Reg­u­la­tion, Lit­i­ga­tion and Arbi­tra­tion, expect­ed 2013; Michi­gan State Uni­ver­si­ty Col­lege of Law, J.D. 2012; Aquinas Col­lege, B.S. 2008. Spe­cial thanks to Pro­fes­sor Fran­co Fer­rari for his invalu­able guid­ance, com­men­tary, and insight.

1 The Presidium’s duties are set forth in the Arbi­tra­tion Pro­ce­dur­al Code of the Russ­ian Fed­er­a­tion. Among oth­er pow­ers, it has super­vi­so­ry author­i­ty to review “judi­cial acts passed by the [low­er] com­mer­cial courts of the Russ­ian Fed­er­a­tion.” The Pre­sid­i­um of the Supreme Com­mer­cial Court of the Russ­ian Fed­er­a­tion, Supreme Arbi­tra­tion Court of the Russ­ian Fed­er­a­tion, http://www.arbitr.ru/eng/26198.html.

2 Despite their name, arbi­tra­tion courts in Rus­sia are courts that have juris­dic­tion over com­mer­cial mat­ters. They are not involved in arbi­tra­tion, the alter­na­tive dis­pute res­o­lu­tion process.

3 Vest­nik Vysshego Arbi­trazhno­go Suda RF [Vestn. VAS] [The High­est Arbi­tra­tion Court of the RF Reporter] 2012, No. 10, p. 336.

4 Id. at 337(citing para. 21.2 of the Con­tract).

5 Id. at 338.

6 Id. at 339.

7 Id.

8 Id.

9 Vest­nik Vysshego Arbi­trazhno­go Suda RF [Vestn. VAS] [The High­est Arbi­tra­tion Court of the RF Reporter] 2012, No. 10, p. 339.

10 Id.

11 Id.

12 Id.

13 Sony Eric­s­son Mobile Com­mu­ni­ca­tions Rus is a sub­sidiary of Sony, and is orga­nized under Russ­ian law as a Lim­it­ed Lia­bil­i­ty Com­pa­ny. Sony is incor­po­rat­ed in Japan, and was not a par­ty in this dis­pute.

14 Arbi­trazh­no-Prot­ses­su­al­nyi Kodeks Rossi­iskoi Fed­er­at­sii [APK RF] [Code of Arbi­tra­tion Pro­ce­dure] art. 241(1) (Russ.) [here­inafter APK RF].

15 See, e.g., Opre­de­len­je ob otkaze v peredache dela v Prezid­i­um Vysshego Arbi­trazhno­go Suda Rossi­iskoi Fed­er­at­sii, ot 7 dekabria 2009, No. BAC-13688/09 [Deter­mi­na­tion of refusal to trans­fer the case to the Pre­sid­i­um of the Supreme Arbi­tra­tion Court of the Russ­ian Fed­er­a­tion, on Dec. 7, 2009, No. BAC-13688/09].

16 APK RF 144(1)(7).

17 See Elliot Glusker, Arbi­tra­tion Hur­dles Fac­ing For­eign Investors in Rus­sia: An Analy­sis of Present Issues and Impli­ca­tions, 10 Pepp. Disp. Resol. L.J.  595, 605–15 (2010).

18 The Russ­ian Fed­er­a­tion has made the fol­low­ing reser­va­tions: 1) the Con­ven­tion will apply only to the recog­ni­tion and enforce­ment of awards made in the ter­ri­to­ry of anoth­er con­tract­ing state; and 2) with respect to those awards made in the ter­ri­to­ry of a non-con­tract­ing state, the Con­ven­tion will apply only to the extent that the non-con­tract­ing state grants rec­i­p­ro­cal treat­ment. Oxana Peters, Com­mer­cial Arbi­tra­tion: Rus­sia, GAR, http://www.globalarbitrationreview.com/know-how/topics/61/jurisdictions/26/russia/.

19 See, e.g., Unit­ed World Ltd., v. Kras­ny Yakor (Pan. V. Russ.), Fed. Com. Ct. of Vol­ga-Vyat­ka Cir., Case No. A43-10716/02–27-10isp (2003).

20 Glusker, supra note 17, at 607–08.

21 OECD, The Invest­ment Envi­ron­ment in the Russ­ian Fed­er­a­tion: Laws, Poli­cies, and Insti­tu­tions 17 (2001) (“[C]ourt deci­sions have not been exe­cut­ed because of undue influ­ence on enforce­ment offi­cers or the absence of effec­tive enforce­ment mech­a­nisms.”).

22 Two oth­er rea­sons why par­ties may want to lit­i­gate in Rus­sia as opposed to seek arbi­tra­tion or lit­i­gate in a for­eign court is con­ve­nience and the rel­a­tive low cost of fil­ing a claim in a Russ­ian arbi­tra­tion court.

23 One may argue that giv­en the way the Russ­ian court sys­tem works in prac­tice, com­pa­nies run a risk by agree­ing to lit­i­gate in Rus­sia for this very same reason—the pos­si­bil­i­ty of corruption—and would, in fact, be bet­ter off lit­i­gat­ing or arbi­trat­ing some­place else. Although enforce­ment is not guar­an­teed, the argu­ment may go, a par­ty pur­su­ing the lit­i­ga­tion route may not receive its right to a fair con­sid­er­a­tion of its case by an inde­pen­dent and unprej­u­diced court. It could be risk­ing not get­ting a fair oppor­tu­ni­ty to have its case heard on the mer­its. While this is cer­tain­ly a fair obser­va­tion, despite these con­cerns, both domes­tic and inter­na­tion­al com­pa­nies are leav­ing open the pos­si­bil­i­ty to lit­i­gate in state court, which may sim­ply be to estab­lish an extra lay­er of pro­tec­tion.

24 Con­tra Pit­tal­is v. Sherefet­tin, [1986] Q.B. 868 (Eng. C.A.) (uphold­ing uni­lat­er­al option claus­es). Besides Great Britain, many oth­er juris­dic­tions still con­sid­er uni­lat­er­al option claus­es valid. See gen­er­al­ly Philip Clif­ford & Oliv­er Browne, Finance Agree­ments: A Prac­ti­cal Approach to Options to Arbi­trate, GAR (Dec. 1, 2006), http://www.lw.com/upload/pubContent/_pdf/pub1762_1.pdf.

25 Cour de cas­sa­tion [Cass.] [supreme court for judi­cial mat­ters] 1e civ. Sept. 26, 2012, No. 983 (Fr.).

26 Id.

27 Id.

28 Gilles Cunib­er­ti, Bul­gar­i­an Court Strikes Down One Way Juris­dic­tion Clause, ConflictofLaws.net, http://conflictoflaws.net/2012/bulgarian-court-strikes-down-one-way-jurisdiction-clause/ (Nov. 13, 2012) (char­ac­ter­iz­ing the clause as falling with­in the potes­ta­tive rights cat­e­go­ry vis à vis the stronger par­ty). The Court not­ed that potes­ta­tive rights “exist only by virtue of law and are not sub­ject to con­trac­tu­al arrange­ments.”  Id. Such pro­vi­sions are void under Arti­cle 26(1) of the Bul­gar­i­an Con­tracts and Oblig­a­tions Act. Id.

29 Inter­est­ing­ly, had the French court giv­en effect to the intent of the par­ties, the result could have been the same because the Lux­em­bourg civ­il code rec­og­nizes the potes­ta­tiv­ité prin­ci­ple. How­ev­er, it is dif­fi­cult to pre­dict what a Lux­em­bourg court would have done in this instance. It is like­wise dif­fi­cult to pre­dict what a Span­ish court would have done, since suit could have also been filed in Spain because the plain­tiff was domi­ciled there. Please also note that the Brus­sels I Reg­u­la­tion, which was ana­lyzed in the French court’s deci­sion, is beyond the scope of this Arti­cle.

30 While one could argue that the French courts would be more for­giv­ing if two com­pa­nies were involved rather than a com­pa­ny and a client, there does not seem to be any indi­ca­tion in the Court’s deci­sion that the result would be any dif­fer­ent if instead of a nat­ur­al per­son, the plain­tiff was a com­pa­ny.

31 Such claus­es were con­sid­ered valid in France. Cour de cas­sa­tion [Cass.] [supreme court for judi­cial mat­ters] 1e civ., May 15, 1974, Bull. civ. I, No. 143 (Fr.).

32 Code de com­merce [C. com.] art. L.422–6 (Fr.) (deal­ing with imbal­ances between par­ties).

33 James C. Regan, The Enforce­ment of For­eign Judg­ments in France under the Nou­veau Code de Pro­ce­dure Civile, 4 B.C. Int’l & Comp. L. Rev. 149, 150, 185 (1981).

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