French Blocking Statute: A Death Foretold?

Originally enacted in response to a U.S. antitrust investigation into French shipping companies, the French Blocking Statute may soon live its last days.

The Statute was tailored to protect French citizens and corporations from the alleged excesses of discovery processes in U.S. claims. Generally speaking, the Statute prohibits any French party from disclosing commercial information whether originating from France or elsewhere in foreign litigation, absent a French court order.

Provisions of the French Blocking Statute

Article 1 bis of the Blocking Statute provides that:

Subject to Treaties or International Agreements and to currently applicable laws and regulations, it is prohibited for any person to request, seek or disclose, in writing, orally, or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature directed toward establishing evidence in view of foreign judicial or administrative proceedings or in relation thereto.

Any infringement of the Blocking Statute constitutes a criminal offense, the potential sanctions being imprisonment up to six months and/or a fine up to €18,000 for an individual and €90,000 for a company.

The scope of Article 1 bis is very broad, and the information requested or disclosed need not necessarily involve the sovereignty, security, or essential economic interests of France.

Under the Statute, foreign disclosures remain possible. The Statute makes an exception for discovery obtained through the Hague Convention of March 18, 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the "Hague Convention").

The Blocking Statute compels any person willing to disclose evidence in his or her possession to do so by way of judicial cooperation, and therefore under the supervision of a French judge. The Statute shows suspicion toward the discovery procedure, especially alleged abusive foreign discovery procedures such as, for example, the "long-arm statutes" approach to jurisdiction practiced in the United States.

The Hague Convention offers two main mechanisms for obtaining evidence. First, evidence can be collected by authorities in the requested state pursuant to a Letter of Request sent by a court in the requesting state. Second, evidence may be gathered by diplomatic or consular personnel of the requesting state, provided that appearances by persons in the requested state are voluntary. In any case, the process must accord with the laws of the...