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PwC Appoints New Global Leader of Consumer Markets

A consumer market is a market when individuals purchase products or services for their own personal use, as opposed to buying it to sell themselves. Consumer markets consist primarily of products that people use as part of their everyday lives.

PwC has appointed Sabine Durand-Hayes as the Consumer Markets Global Leader. Sabine brings more than 25 years of experience assisting private equity and corporate clients with analysis and structuring of mergers, acquisitions and divestitures.

During her career with PwC, she has advised various multinational agri-food, fast-moving consumer goods, luxury and retail companies on strategic and operational issues, from portfolio management to carve out and integration.

In her new role, Sabine will lead the Global Consumer Markets Industries team, which advises a large network of clients from various industries, including retail, consumer, hospitality and leisure, as well as transport, logistics and packaging, on a range of key areas. In particular, she will focus on optimised omnichannel models; effective supply chain management and organisation, from strategy to execution – enabled by digital, data analytics and new ways of working, including environmental, social and corporate governance, risk and assurance, tax and legal aspects as part of the solution.

She will also continue her role as the Global Relationship Partner for one of the world’s largest global food retail companies.

“I’m thrilled to be taking on this new role in leading our Global Consumer Markets Industries practice,” says Sabine. “The ongoing transformation of the Consumer Markets industries in a context of fast-changing consumer preferences, and accelerated by the COVID-19 pandemic, serves as a reminder of how our PwC purpose – to build trust in society and to solve important problems – guides our work with clients and stakeholders.

By bringing our capabilities together, we have unique opportunities to connect with all players, from manufacturers and producers, all the way to distribution and consumers, on how to address common challenges. We can provide experience and solutions that make a real impact for our clients and their consumers.”

Sabine previously was Retail and Consumer Industries leader in France and more recently led Consumer Markets in Europe, the Middle East and Africa. She leads PwC’s Transactions Services Retail & Consumer teams in France.

She presently serves as a member of the Supervisory Board of PwC France & Maghreb since 2017, and led the Strategy commission from 2017 to 2020, providing first-hand experience of governance and control in a multinational business.

Sabine trained and worked in PwC United Kingdom and is a member of the Institute of Chartered Accountants of England and Wales.

She earned a Masters from ESC Montpellier Business School.

Lawyer Marc Petitier Joins White & Case

White & Case LLP is an international law firm based in New York City. Founded in 1901, the firm has 45 offices in 31 countries worldwide. White & Case is one of the top ten law firms worldwide in terms of revenue.

We guide our clients through difficult issues, bringing our insight and judgment to each situation. Our innovative approaches create original solutions to our clients’ most complex domestic and multijurisdictional deals and disputes.

Marc Petitier is a renowned corporate lawyer who has led on many of the most significant corporate transactions originating from France, advising clients on public and private mergers and acquisitions, sales and joint ventures, and corporate governance.

He has experience across a number of different sectors, including technology, financial institutions, energy and infrastructure, and on Africa-related deals.

Petitier brings 20 years of experience and joins White & Case joins from Linklaters, where he was a partner.

White & Case is a global law firm with longstanding offices in the markets that matter today. Our on-the-ground experience, our cross-border integration and our depth of local, United States and English-qualified lawyers help our clients work with confidence in any one market or across many.

By thinking on behalf of our clients every day, we anticipate what they want, provide what they need and build lasting relationships.

We do what it takes to help our clients achieve their ambitions.

Incompetence of The French Judicial Tribunal

This article establishes a new derogatory scheme creating a possibility to challenge the competence of the judicial tribunal. The judicial tribunal was recently created with the merger of the TGI and the TI, such jurisdictions dealing with civil matters. Due to the coronavirus Covid-19 sanitary crisis, legal practitioners did not really have the time to test this new regime.

As a general rule, an incompetence exception has to be raised in limine litis, that is to say, at the first hearing, before any discussions on the ground of the case, and by way of principle, before the same judge ruling on the case. On the contrary, and by way of derogation, the new scheme sets up a possibility to raise an incompetence exception, before the first hearing, either the parties or the judge raising it. If trigged, the parties or their lawyers are informed right away by any means giving fixed date. In this perspective, the file is transmitted to the registry of the judicial tribunal, which in turn, transfers the case to a designated judge.

The competence of this newly appointed judge may also be challenged, by him or the parties, during a period of 3 months, by the transfer of the case to the President of the judicial tribunal. According to the new regulation, the President of the judicial tribunal has to transfer the case to a new appointed judge, and such a decision cannot be challenged. However, the competence of this new appointed judge may be challenged before this new judge by the parties, and the decision ruling on the competence may be appealed within a period of 15 days, as of the date of the notification of the decision.

The President of the judicial tribunal appears to be the keystone of the scheme, which is in line with the role usually attributed to him, as already in charge for example of summary proceedings. The fixed date and the 3 months timeframe appear to be crucial, and purport to avoid endless discussions on the competence.

However, and surprisingly, this new scheme creates a very sophisticated legal architecture, not to mention the potential right to call the case before the French Cour de cassation. In such a context, these new rules may unfortunately be used to artificially challenge a procedure and lengthen it. An author has recently described this mechanism as a potential Trojan Horse, allowing dilatory procedures.

This remains true to a certain extent, as this new Article 82-1 has been introduced in a context where, on the contrary, a lot of other procedural rules are aimed at streamlining the procedure e.g. concentration of the legal means, estoppel or prohibition of dilatory procedures.

In a constant movement, the French Cour de cassation draws the outlines of the concentration of the legal means principle. The French Cour de cassation, recently stated that the plaintiff, before any ruling on the case, has to expose all the legal means considered as the ground for the claim. This means that, in a same instance, an overruled legal claim cannot be raised again in connection with another ground based on the same object, as the one on which the tribunal has already definitely stated. According to this case law, the rule of the concentration of the legal means, uses the same underpinned concept as the fin de non-recevoir, but is not an exception procedure as rather deals with the ground of the case.

It remains to be seen however how this case law and all the case law hereof, will be used by legal practitioners to limit the import of this new Article 82-1. In this perspective, it is reasonable to think that they may wish to use the concentration of the legal means principle, also in connection with procedure exceptions, such as incompetence.

In addition, the estoppel theorie, albeit originally English law concept, is now part of the French legal system. In a considerably important decision, the French Cour de cassation, recognised and introduced into French law, this Anglo-Saxon concept and considers it as a fin de non-recevoir. In this respect, the French Cour de cassation has stated that actions of the same nature based on the same conventions, opposing the same parties may give rise to a sanction, provided that a party kept contradicting itself, at the expenses of others. More specifically, the French Cour de cassation, Civ. 2, dated 15 March 2018 reiterated this position, ruling that « the principle according to which no one may contradict itself at the expenses of others, sanctions the procedural attitude consisting, for a party, during a same instance, to adopt contrary or incompatible positions leading the adversary in error as to its intentions ». Thus, it is reasonable to think that legal practitioners will use, inter alia, the estoppel theory to limit the possibility to use incompetence exceptions. In addition, even if the contradiction may occur in the same instance, it cannot be excluded that a judge may wish to streamline the procedure and prevent a party from utilising incompetence exceptions several times, in a same context.

A judge would also have the possibility to use article 32-1 of the French Code de procédure civile, which states that a person acting in justice in a dilatory manner may be convicted to a civil fine up to 3.000 euros, without prejudice of damages that would be claimed. In that event, the amount related to the civil fine is paid to the French Trésor Public.

To remain in the real trend of the procedure regulation, i.e. constant equilibrium between defence rights and efficiency of the legal system, judges and legal practitioners are in the position to put forward a strict construction of Article 82-1 of the French Code de procédure civile. Constructions rules are clear in this respect: exceptions or derogations have to be interpreted strictly, and the scheme created is created by way of exception.

This means that each time a lawyer would invoke a competence exception on the basis of this new Article 82-1, the judge would have to conduct a teleological construction, in the view of maintaining a sufficient level of efficiency of the procedure, especially in a context where ECHR already imposes an effective recourse in every steps of the procedure and numerous litigations deal with international matters, allowing the parties to raise incompetence exceptions, also on the ground of judicial international private law.

Liability of the French State and Judicial Review

On 24 December 2019 the Conseil d’Etat ruled that indemnification can be granted under French law on the ground of a prejudice suffered due to the application of a law ruled contrary to the Constitution by the Conseil Constitutionnel.

The Conseil d’Etat now leaves the door open to a new possibility for indemnification, within the framework of a QPC examination or by application of Article 61 of the Constitution. Based on the hierarchy of norms, this new kind of liability of the State is stated in three decisions dated 24 December 2019.

This new regime lives now next to the already existing liability due to the application of the law based on equal treatment before public burdens.

A QPC is a question raised by a tribunal or a court aiming at determining the conformity of a law to the Constitution. Article 61-1 of the French Constitution states in this respect that during an instance before a tribunal or a court, a plaintiff can support the view that a law contravenes rights and liberties guaranteed by the French Constitution.

In such a situation, the Conseil Constitutionnel can be seized after remand of the case by the Conseil d’Etat or the Cour de Cassation.

The general principle under French administrative law is that the French State can be sued simply because of the application of a law, provided that the plaintiff has suffered a prejudice qualifying as important and specific and the law in question does not exclude the possibility for a plaintiff to be indemnified.

This type of liability is applicable even if the French State is not considered as being in default with the application of the law and is named liability without misconduct.

This possibility started in France at the beginning of the 20th century, with the admission of liability without misconduct of the French State due to an administrative decision of non-enforcement of judicial decisions. In such a case, in the general interest, the French State may decide not to enforce a judicial decision, but in turn, has to indemnify the plaintiff. The ground for indemnification is the breach of equal treatment before public burdens principle.

This principle is taken from the French 1789 declaration of the human rights and the citizen: each member of the community has to bear a certain amount of public burdens, but equal treatment shall prevail.

This principle has expanded thereafter with the admission of such a claim against a law by the Conseil d’Etat in 1938. Such a case establishes that, in the silence of the said law, a plaintiff shall not bear a charge created by a law that he / she would not normally lie with, it being specified that, in the event of silence of the said law, such law shall not be considered as excluding the liability of the French State.

The liability of the French State can also be triggered due to its obligations to ensure the application of its international conventions, to indemnify all the prejudices resulting from the application of a law passed illegally because contrary to an international convention.

Now, according to the new decisions of the French Conseil d’Etat dated 24 December 2019, the other grounds for indemnification are that the decision of the Conseil Constitutionnel does not decide that no indemnification shall be granted either by excluding it expressly or by letting alive all or only a part of pecuniary effects caused by the law, that an indemnification would challenge, the existence of a prejudice and the link between the prejudice and the unconstitutional application of the law.

As a consequence, a plaintiff may be indemnified in the following conditions: no express exclusion of indemnification by the Conseil Constitutionnel no all or part of pecuniary effects left alive by the Conseil Constitutionnel that an indemnification would challenge and a link between the prejudice and the unconstitutional application of the law.

According to the decision of the Conseil d’Etat, certain pecuniary effects of the law declared unconstitutional may prevail upon an indemnification.

In this respect, it is reasonable to think that an administrative judge would apply an economic balance check between the necessity of indemnifying the plaintiff and the profit of letting alive all or only a part of pecuniary effects caused by the unconstitutional law. An economic balance check is already applied in other circumstances, by the Conseil d’Etat.

In this perspective, it is reasonable to think that the application of an unconstitutional law may survive if it is more interesting from an economic point of view. This mentioned carve out is quite important as it gives the possibility to the Conseil Constitutionnel to let alive, even if the law is declared unconstitutional, and then cancelled, parts of its pecuniary effects.

In addition to the breach of equal treatment before public burdens principle, it can be suggested that other principles may underpin this kind of liability: preservation of legal safety and /or granted rights, and / or economic balance check, to take into account all the adverse financial effects that an indemnification would cause.

The claim for indemnification can obviously be barred by effluxion of time, it being specified that the 4 years period during which such a claim can be brought only starts if the prejudice resulting from the application of the law may be known in its reality and its scope by the plaintiff, without the possibility for him or her to be regarded as ignoring the existence of his / her right to claim until the declaration of unconstitutionality.

The indemnification request has to be brought before the administrative judge. It remains however to be seen whether legal practitioners will try to use these decisions of the Conseil d’Etat to sue the French State before the judicial order.

Under French law, the French Conseil d’Etat is the highest court entitled to address administrative cases and is part of the administrative order whereas the judicial order is composed of judiciary tribunal and courts and is competent for private matters. How dealing with the fact that a tribunal or a court may apply deliberately after the declaration of unconstitutionality a law previously declared unconstitutional outside the scope of the carve out of the ratio decidendi of the Conseil d’Etat?

Would Article 141-1 of the Code de l’organisation judiciaire, which gives competence to the judicial order in the event of indemnification of a prejudice due to malfunction of judicial public service, apply? It is reasonable to think that such indemnification would not be allowed even if legal practitioners may wish to test it, and may be, open this possibility, for the residual adverse effects on the plaintiff of the law declared unconstitutional.

French Continuing Plans & Economy Despite COVID-19

The French Ministry of Justice issued a press release just after the announcements of the President of the French Republic. The aim, due to the emergency, is to protect citizens who are the most vulnerable and to curb the epidemic.

Chancery has now prepared continuing plans to allow Justice to face core obligations of the Nation.

According to a CNB release dated 15 March 2020, the continuing plans will be triggered as from 16 March 2020 by the Ministry of Justice to avoid propagation of COVID-19. Tribunal and courts will be closed, except for cases relating to core litigations.

Core litigations are limited to criminal tribunals and courts including pre-trial custody and probation, immediate criminal summary trials, appearance before the liberty and custody judge, appearance before the enforcement judge including appeals, these latest in the events of emergency only, permanence of public prosecutor’s office, hearings relating to investigation chamber for custody and civil tribunals and courts including children’s courts and permanence in the events of emergency only – including educational assistance, summary judgments, but based on emergency only, civil liberties and custody judge hearings.

Due to the risks of contamination, instructions are, to the extent possible, to cancel criminal court sessions related to crimes. It is also allowed to postpone hearings.

Legal public facilities will be closed as well as justice centres and legal access points. Even if justice civil servants will not be allowed to receive public, they will be reachable by phone to address emergency situations.

As far as Paris is concerned, the first President of the court of appeal of Paris issued an ordinance dated 16 March 2020 named ordonnance de roulement modificative, on the basis of, inter alia, the decision of the Ministry of justice dated 15 March 2020 triggering continuing plans, article L1142-7 of the French Code de la Défense and emergency.

Such article not only states that the Ministry of Justice ensures in all circumstances the continuity of the legal criminal services as well as enforcement of criminal sanctions, but also he participates in fighting against elements adversely affecting fundamental interests of the Nation.

Aside to the public authorities, the legal profession, as a whole, may support the economy: it can be suggested that business lawyers may wish to consider advising their clients to enter into settlement agreements to solve pending litigations and to unlock commercial situations created by the current sanitary crisis.

Perella Weinberg Grows Advisory Division

Perella Weinberg Partners is a global financial services firm focused on investment banking advisory services. The firm was founded in 2006 by Joseph R. Perella, Peter A. Weinberg and Terry Meguid, and went public in 2021.

PWP today announced that it has elected two individuals to join the firm’s partnership.

PWP provides strategic, financial, and tactical advice in connection with executing complex mergers, acquisitions, company sales, and corporate divestitures, including carve-outs, joint ventures, and spin-offs, and relating to takeover preparedness and defence.

Doug McGovern has more than 18 years of experience. Prior to joining PWP in January of 2010, Mr. McGovern was at BPW Acquisition Corp, a Special Purpose Acquisition Company co-sponsored by PWP, from 2009 to 2010, where he helped lead the SPAC’s merger with Talbots, Inc.

He was previously an associate of Brooklyn NY Holdings LLC, where he worked in the firm’s principal investing business. Prior to that, Mr. McGovern worked for Windward Capital Partners from 2002-2005. Mr. McGovern began his career as an Analyst at Credit Suisse First Boston.

Cyrille Perard has more than 18 years of corporate mergers and acquisitions and investment banking experience. Prior to joining PWP in 2018, Mr. Perard was Co-Head of mergers and acquisitions for the France, Belgium and Luxembourg Region at Goldman Sachs.

He joined Goldman Sachs in 2001 working in its London, San Francisco and Paris Offices.