Q&A: Sylvie Gallage-Alwis, Signature Litigation

Signature Litigation’s Paris office co-founding partner on the French litigation system

Can you describe your experience and areas of expertise within the French legal system, particularly in relation to dispute resolution? How do you stay updated with changes in French law and jurisprudence that impact your practice?

I am both an avocat à la cour in France and a solicitor in England and Wales. I became a solicitor while being seconded in the London office of my previous firm. I spent ten years in an international full-service law firm before opening the Paris office of the disputes-focused firm Signature Litigation with two other partners in 2019. Five years later, our Paris office counts six partners and more than 20 associates. We have become one of the largest dispute-only teams in Paris.

My focus has always been to defend manufacturers, whether French or international, doing business in France which are facing litigation and regulators’ investigations.

I am therefore involved in all types of litigation manufacturers can get involved in: commercial litigation (unfair competition, termination of contract, breach of contract); product liability; product safety; toxic tort and hazardous substances; and environment/pollution/climate change litigation. I also help our clients when they are subject to investigations by the French regulators on the compliance of their products or of their selling channels (this is how for instance we have developed specific expertise in assisting marketplaces).

As such, we try cases before commercial, civil, administrative, and labour/social security courts, both at first and appellate levels.

The topics we encounter are very varied and it is important to stay up to date, not just with French law and case law but also at European Union level and even worldwide as product or manufacturing-related issues are generally global and the strategy implemented in one jurisdiction should not impact the strategy that could be developed in other jurisdictions later on. We obviously review case law on a regular basis, as well as new regulation, we follow updates through media statements from the French state and the European Union authorities. We monitor the websites of the French and European regulators and courts. We are also keeping ourselves updated through websites compiling case law and LinkedIn.

What approaches to dispute resolution do you find most effective in France, and how do you decide on the best strategy (litigation, arbitration, mediation) for a particular case? Could you provide an example where a specific strategy led to a successful outcome?

Given my expertise, my clients are often defendants rather than plaintiffs. What we are increasingly seeing is the filing of multiple claims, on different grounds and before different courts, at the same time.

‘My focus has always been to defend manufacturers, whether French or international, doing business in France which are facing litigation and regulators’ investigations.’
Sylvie Gallage-Alwi, Signature Litigation

We saw this first happening in France in asbestos-related cases where criminal complaints were filed to force the criminal authorities to investigate and identify relevant defendants. In parallel, people who developed what they believe were asbestos-related diseases would file claims before the labour and civil courts. People who have not developed a disease started filing claims on the ground of fear of cancer (so-called anxiety claims). In parallel, the authorities would investigate the working conditions, the compliance with environmental obligations, etc., with administrative and criminal proceedings potentially being initiated. Unions or any member of the population could also try to request from the state the documents the latter has in its possession to determine if all is compliant.

We are now seeing this trend developing these past years outside toxic tort. Similar litigation strategies are indeed implemented in consumer-related claims (notably because collective redress mechanisms have not been much used yet in France) and environment/climate change allegations.

What unique challenges do you face when navigating the judicial process in France for dispute resolution? How do these challenges influence your case strategy and client advisement?

The challenges for our clients when they are involved in litigation in France are multiple. The first one would be around how evidence is gathered and shared. There is no discovery or disclosure in France as there would be in common law systems or in arbitration. Although this could sound favourable to the party which has more data/knowledge than the other, as it can technically pick and select what it wants to share, the reality is that there exist strong presumptions against companies in cases where they face consumers, NGOs, employees, individuals, or regulators. This means that even if they do not have in their possession data that would be useful for their defence, they will be deemed as having them and not wanting to share them, assuming that this data would be detrimental to their position. Winning as a plaintiff in this type of configuration is therefore easier as there is often a shift in the burden of proof.

‘French courts are known to be pro-consumers, pro-plaintiffs. The consequence is that some types of damages are recognised in France while they would not be elsewhere, or at least not that easily.’
Sylvie Gallage-Alwi, Signature Litigation

This brings us to another challenge, which is that French courts are known to be pro-consumers, pro-plaintiffs. The consequence is that some types of damages are recognised in France while they would not be elsewhere, or at least not that easily (eg, the anxiety to develop a disease in the future due to the potential exposure to a chemical substance). To counter such presumptions, it is important to have a full picture of the matter and therefore, even if all will not be disclosed, we recommend conducting a full internal investigation before determining the best strategy to apply.

Another challenge for our international clients is how the trial works. Contrary to many jurisdictions, in France, there will only in very rare circumstances, at least in civil and commercial cases, be witness or experts’ oral testimonies. Everything is in writing and the trial consists in the lawyer doing a mix of opening and closing statement before the court. Also, commercial courts and employment courts are composed of lay judges in the lower courts. It is only at appellate level that the case is heard by career judges. The way factual and legal arguments are presented should therefore be adjusted in such cases depending on whether you are before the lower court or the Court of Appeal.

Given France’s role in the European Union and the international community, how does EU law and international law influence your dispute resolution practice? Can you share an instance where international or EU law played a critical role in a case?

EU law greatly influences French law and French case law. When it comes to litigation, the use of the procedural technique whereby a party asks French courts to ask questions to the European Union Court of Justice for guidance in how to interpret EU regulation has very much developed. This helps ensuring that there is a harmonised application of EU law throughout the EU territory.

However, EU law can also be at the origin of issues. Indeed, EU law allows member states to adjust EU law when it is deemed necessary for national reasons. This can lead to situations where a company is treated in a different way in different member states while EU law is supposed to provide legal predictability on the risks encountered by a business operator. For example, Regulation (EU) 2017/2394 of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws provides in Article 9 that the regulators of the member states shall have the power ‘to remove content or to restrict access to an online interface’. In other words, member states should ensure that it is possible to ban a website from their jurisdiction if they believe that its content presents a risk. French law includes such a power in the Consumer Code (Article L. 521-3-1). However, this article grants such power to the French regulator (the DGCCRF – Directorate General for Consumer Affairs, Competition and Fraud Prevention), without any prior authorisation to be obtained by a court. In other words, the DGCCRF can take measures that would infringe freedoms without any possibility to first debate such a measure before a court, in the scope of an adversarial process. France is, to my knowledge, the only member state which has decided to directly grant this power to its regulator while other member states have granted this power to their courts. If an internet operator does not know this, it can be negatively surprised by a decision that it did not see coming, with major consequences to its business.

‘These past years, I have observed an increasing number of plaintiffs who decide to first file their claim in the US while the correct forum would rather be France.’
Sylvie Gallage-Alwi, Signature Litigation

There is also an international influence on French litigation. These past years, I have observed an increasing number of plaintiffs who decide to first file their claim in the US while the correct forum would rather be France (eg, the plaintiff is French, damage occurred in France, the alleged fault/negligence happened in France). The result is that the US judge will rule that the case should be transferred to the French courts, adding however that some conditions should be met. Such conditions can be that the defendant agrees not to raise any statute of limitations’ defence or that it will provide the necessary documents needed for the case to be heard by the French judge. The plaintiff’s counsel will then try to have the French courts implement the US ‘discovery’. Obviously, our position is that French Civil Procedure Law should apply to the request to have documents provided by the defendant and we have obtained judgments agreeing with this. However, this creates new types of debates before French courts due to the international nature of the case that the plaintiffs introduce by seizing a foreign court first.

How do you balance zealous advocacy for your clients with the ethical standards and professional responsibilities required by the French legal system? Could you discuss a time when this balance was particularly challenging?

I am a true believer that you can be a fierce litigator and a decent opponent at the same time. Complying with ethics should never be questioned and it does not have to. In France, you must ensure notably that the adversarial process is respected. Courtesy is also key, and I believe in allowing an opposing counsel to explain himself or herself in case there is an issue. For instance, I came across a case where we had a doubt as to whether opposing counsel really informed his/her client of all the developments in a case. Contacting him/her ahead of taking any step is the minimum we can do as colleagues in my view.

The principle of independence is also an important principle applying to French lawyers. When you work in product liability litigation, you can sometimes end up being asked to represent both the manufacturer and its insurance. This could lead to a conflict of interest at some point. It is of tantamount importance to highlight to the client that this can happen and to always be vigilant throughout the handling of the case not to face any conflict, should you be representing both. I believe that it is the same issue that firms can face when a third-party litigation funder is involved. This is not yet standard in France but the same precautions will have to be discussed when the time comes.

France’s economy is significantly globalised. How do you handle cross-border disputes, and what complexities arise from these cases? Please share an example of a cross-border dispute you managed and the outcome.

As mentioned above, when you represent a manufacturer in the scope of allegations that a product would not be compliant, the dispute quickly becomes a cross-border dispute. It is important to consider which jurisdictions offer collective redress mechanisms such as opt-out class actions. Indeed, based on experience, class actions are quickly launched in such jurisdictions (in the EU, you have Portugal and The Netherlands, under specific circumstances). This is important as class certification and document disclosure debates will shape the types of civil liability claims that could be launched in other jurisdictions.

You also need to identify which jurisdiction would consider that the non-compliance leads to criminal proceedings (for instance, misleading commercial practices, greenwashing or planned obsolescence are criminal offences in France). This is important as in the scope of criminal proceedings, the authorities or judges in charge of investigating the issue generally have important powers, such as seizing documents, hearing witnesses/employees, conducting dawn raids. It is also important because in some jurisdictions, when a company believes that a criminal offence may have occurred, it should come forward to the authorities.

You should also take into account that any statement may lead to an interpretation of an admission of liability in a jurisdiction, while having to warn consumers should there be a safety concern.

We therefore always advise to draw up a list of jurisdictions where the product is most sold and involve either in-house legal teams or outside counsel in such jurisdictions early in the definition of the global strategy, even if the case is starting in France only, at first.

How do cultural and linguistic factors play a role in your dispute resolution practice, especially when dealing with international clients or parties? Can you provide an example of how you navigated such considerations in a dispute?

The oldest French piece of legislation is the 1539 Villers-Cotterêts Order imposing the use of French language as the official language in France. One of the many consequences is that all documents filed with French courts should be in French. Therefore, if you have documents that are in a foreign language that you wish to file as exhibits, you must translate those documents into French. France has tried to modernise itself in the wake of Brexit and the creating of a specific international commercial chamber at the Paris Court of Appeal. In this chamber, evidence can be provided in English as the judges in this chamber speak English. A witness or expert could also testify in English. Will this lead to other chambers to agree to documents in English? I do not believe so for the moment, but we can hope that this will happen in the future, especially if all parties involved understand English.

‘France has tried to modernise itself in the wake of Brexit and the creating of a specific international commercial chamber at the Paris Court of Appeal.’
Sylvie Gallage-Alwi, Signature Litigation

Another specificity of the French legal culture is that, based on experience, it is always better, in product liability cases, to have a French laboratory or French expert involved in the proceedings alongside any foreign laboratory or expert, even if the latter would be more knowledgeable on a specific technical issue. Indeed, the French regulator and the French experts appointed by a court will feel more comfortable taking into account the position of a French laboratory or French private expert than a foreign one, thinking that a foreign one could apply different sets of standards or rules or work differently than they would. This also ensures that the client’s position is well-understood as the English language is not always fully commanded by French regulators and court-appointed experts.

A final cultural consideration related to something that often comes up in commercial and civil litigation is the fact that rules around questioning French employees are strict, as well as rules around looking into their emails or documents. When launching an internal investigation, it is therefore important to first ensure that French law and also EU law, such as the General Data Protection Regulation (GDPR) are complied with.

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