Scottish Human Rights Law Group

Structural impartiality and the French commercial court

The defenders sought to appeal against the pursuer’s registration, pursuant to the Civil Jurisdiction and Judgments Act 1982 and the Brussels Convention, for enforcement in Scotland of a judgment of the Cour d’Appel de Bordeaux. The defenders contended that French tribunals and commercial courts in general, and the Tribunal de Commerce in particular, lacked the appearance of impartiality and independence required by Article 6.  

In refusing the appeal, the court held that in determining whether the defenders could rely on the public policy exception contained in Article 27 of the Brussels Convention it was necessary to take account not only of the first instance proceedings before the Tribunal de Commerce but also the appellate procedures available and what had actually happened before the appeal court and that  upon consideration of the French proceedings as a whole, there was no basis for the belief that the defenders were not afforded the opportunity of a fair hearing by an independent and impartial tribunal, without having to decided whether the Tribunal de Commerce was sufficiently Article 6 structurally impartial because any infringement of Article 6(1) was rectified by and during the appeal proceedings.