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PwC appoints Sabine Durand-Hayes as Global Leader, Consumer Markets

PwC has appointed Sabine Durand-Hayes (PwC France and Maghreb) 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 (FMCG), 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 (ESG), 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.”

Kevin Burrowes, PwC’s Global Clients and Industries Leader (PwC UK), says “The opportunities and challenges facing our clients are unparalleled. In collaboration with other industries, our Consumer Markets practice, under Sabine’s leadership, will continue to help organisations repair, rethink and reconfigure their business models to emerge stronger from the crisis.”

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 UK and is a member of the Institute of Chartered Accountants of England & Wales. She earned a Masters from ESC Montpellier Business School.

Hogan Lovells boosts Paris practice with leading hires

Hogan Lovells is strengthening its Corporate & Finance Practice in Paris with the hire of leading M&A and Private Equity partners Matthieu Grollemund and Hélène Parent. They join with five associates from Baker McKenzie, where Grollemund co-headed the Paris Corporate department.

Matthieu and Hélène’s practice focuses on M&A and Private Equity transactions with an emphasis on buy-out funds, high-end growth or venture funds, and family offices with significant private/public equity activity. They represent numerous public and private companies and private equity funds in a wide range of domestic and cross border transactions, including business combinations, divestitures, leveraged buy-outs, IPOs, and restructuring matters. In addition, they regularly advise boards and committees on a variety of governance and other issues.

Their appointments follow the additions announced in Private Equity last year in London (Ed Harris and Leanne Moezi), United States (Adam Brown), Shanghai (Don Williams, Tony Mou, and Cheng Xu) and Frankfurt (Nikolai Sokolov).

“We are very happy to be joining Hogan Lovells” said Grollemund.The firm has a great culture based on collaboration, cooperation and cross selling and we are excited to be adding our experience to such an impressive team. The partners’ conqueror mindset combined with the strength of the firm’s high quality full service platform and its depth of capabilities in Europe, Asia, the Americas and beyond, present unique advantages for our clients.”

David Gibbons, Global Head of the Corporate & Finance Practice at Hogan Lovells, added: “We are absolutely delighted to welcome Matthieu Grollemund, Hélène Parent and their team of associates to Hogan Lovells. They will add significant depth to our existing Tier 1 team in Paris who are already executing a broad range of sophisticated transactions for clients. Furthermore, Matthieu and Helene’s reputation for excellence in technology and life sciences M&A aligns with the strengths of the firm and our own focus on highly-regulated industries.”

The Hogan Lovells Corporate & Finance practice provide end-to-end transactional solutions to clients globally across a wide range of capital strategies and funding structures. We have over 400+ partners (and approximately 1,400 lawyers) within the Practice, located across all the major financial centres in the world. We are a fully integrated global team that combines exceptional transactional experience with deep industry sector knowledge. Our Corporate practice in Paris is ranked as Tier 1 in the market by multiple sources and has recently been involved in major transactions, such as the acquisition by TowerBrook Capital Partners of the rail activities of Consolis group and the acquisition by PAI Partners of a majority stake in Euro Ethnic Foods.

Marc Petitier Joins White & Case as a Partner in Paris

Global law firm White & Case LLP has expanded its Global Mergers & Acquisitions Practice with the addition of Marc Petitier as a partner in Paris.

“The strength of our global network, with on-the-ground market leading expertise in many of the world’s most important jurisdictions, means we can advise clients on their most complex cross border matters wherever their transactions take place,” said White & Case partner John Reiss, Head of the Global Mergers & Acquisitions Practice. “Marc’s reputation as a leading M&A partner will enhance our existing corporate capabilities in Paris and complement our strengths in finance, restructuring and disputes, which are more important than ever in the current economic climate.”

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 M&A deals, 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.

Denise Diallo, White & Case Executive Partner in Paris, said: “Marc’s arrival builds on our success and growth in Paris and follows the addition of a team of private equity partners led by Saam Golshani at the end of 2018, the arrival of partners Jean-Luc Champy and Amaury de Feydeau in February 2020 and Emilie Rogey in September 2019, and the four partner promotions at the start of 2021. Marc’s reputation and corporate relationships make him the perfect fit to bring additional prestige and capabilities to the Paris office and also present a great opportunity to reinforce and diversify our client base, through strong client synergies and overlap with Marc’s practice.”

Partner Oliver Brettle, a member of White & Case’s global Executive Committee, said: “We continue to invest and grow across the major EU markets, which have seen great success in recent years and remain extremely important to our global clients. The addition of Marc supports this focus as well as the Firm’s strategy for growth in key global practices and industries, including M&A, technology and financial institutions.”

Bloomberg ranked White & Case first by value for cross-border M&A for the first nine months of 2020.

Baker McKenzie names Alyssa Auberger as Chief Sustainability Officer

Leading global law firm Baker McKenzie has named Paris-based Partner Alyssa Auberger as its first Chief Sustainability Officer. Alyssa will be responsible for leading the Firm’s global Sustainability strategy which is core to the Firm’s overall priorities for the next decade.

After beginning her legal career in-house in the United States, Alyssa joined Baker McKenzie in Paris in 1998 and from 2016 until this appointment, was Global Chair of its Consumer Goods & Retail Industry Group. In this role, she worked closely with a number of global bodies, including the United Nations Global Compact, to heighten awareness of the importance of Environmental, Social and Governance (ESG) risks and opportunities for the consumer goods and retail industry. She has worked with the Firm’s leading practices to develop solutions for clients on supply chain transparency and claims, product lifecycle issues, and human rights and emissions reporting, in order to help them understand their impact and responsibilities across entire value chains.

Franco-American and as a partner specialised in multijurisdictional M&A and Private Equity transactions and based in Baker McKenzie’s Paris office, Alyssa has extensive experience regularly advising American and French corporations, multinationals, and private equity investment funds on their acquisitions and divestitures worldwide as well as in their international expansion efforts.

Baker McKenzie has strong relationships with leading sustainability-focused forums, including the World Economic Forum and the World Business Council for Sustainable Development, of which it was the first law firm member. In 2017, the Firm collaborated with the World Economic Forum to launch the Centre for the Fourth Industrial Revolution in San Francisco, which brings together leading policy makers, businesses, start-ups, academia and international organisations to collaborate for the greater good by maximising the benefits of science and technology.

The Firm became a participant of the United Nations Global Compact (UNGC) in 2015 and remains committed to upholding the Ten Principles on human and labour rights, the environment and anti‐corruption. Since then, it has adopted eight of the 17 Sustainable Development Goals (SDGs), including Gender Equality, Climate Action, and Peace, Justice and Strong Institutions.

Recently Global Chair Milton Cheng joined more than 1,200 Chief Executive Officers from companies in over 100 countries to demonstrate the Firm’s support for the United Nations and inclusive multilateralism by signing onto a powerful Statement from Business Leaders for Renewed Global Cooperation. To mark the 75th Anniversary of the UN, the statement was released by the UNGC Action Platform for Peace, Justice and Strong Institutions (SDG 16), of which Baker McKenzie is a proud co-patron. The Firm also recently announced commitments to significantly reduce its global carbon emissions over the next decade and achieve aspirational global gender diversity targets, set at 40:40:20 per cent, to represent 40% women, 40% men and 20% flexible (women, men or non-binary persons).

Alyssa said, “I am delighted to be taking on this new role and leading Baker McKenzie’s Sustainability efforts. Our clients are at differing stages of their sustainability journeys and we want to do all we can to help them achieve their ESG goals given our own depth of experience. More than 20 years ago, we established the first Climate Change practice within a major law firm, and we now offer a number of ESG Advisory services, including Sustainable Finance, Corporate Governance, Renewable Energy, Human Rights and Modern Slavery, Sustainable Real Estate and Responsible Product Sourcing.”

As well as announcing Alyssa’s appointment, Baker McKenzie reaffirmed its commitment to placing Sustainability at the core of its strategy for the coming decade, facilitating active engagement with like-minded businesses, governments, international organisations and civil society, in order to achieve shared goals for a more sustainable world.

Milton Cheng, Global Chair of Baker McKenzie said, “Collaborating with our clients to find solutions to their complex problems has always been at the core of what our Firm does. We strive to provide holistic business advice to our clients, helping them navigate their sustainability risks, as well as identify the opportunities that come with being a responsible business.”

Milton adds: “As a passionate lawyer, partner and leader within Baker McKenzie for over 20 years, Alyssa understands our Firm, our practices and our clients and I have no doubt that this knowledge will be an asset to her as she leads our Firm wide efforts with the same passion and commitment she has always shown.”

Incompetence of the French Judicial Tribunal

Decree n°2019-1333 dated 11 December 2019 (Article 2) has this year introduced a new Article 82-1 in the French Code de procédure civile, which is said to simplify incompetence exceptions (heading of the Section 2 of the said decree : the simplification of incompetence exceptions).

This new Article 82-1 came into force on 1 January 2020 and 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 (Tribunal de Grande Instance) and the TI (Tribunal d’Instance), 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 (Article 74 of the French Code de procédure civile), 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 (date certaine). In this perspective, the file is transmitted to the registry (greffe) 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 (e.g. référé). The fixed date (date certaine) 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 (Supreme Court). 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 (Katia Bennadji, Dalloz actualité, 22 July 2020, « L’article 82-1 du Code de procédure civile : cheval de Troie au service de manœuvres dilatoires »). 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 (concentration des moyens), 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 (C. cass. civ. 2, 11 April 2019, n°17-31785), 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 (i.e. res judicata pro veritate habetur), 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 (C. cass. Ass. Plen., 27 February 2009 (n°07-19.841)) and considers it as a fin de non-recevoir (i.e. a legal mean aiming at having declared the claim of the other party as not receivable). 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 (n°17-21.991) 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 (i) ECHR (European Convention of Human Rights) already imposes an effective recourse in every steps of the procedure and (ii) numerous litigations deal with international matters, allowing the parties to raise incompetence exceptions, also on the ground of judicial international private law.

Up to date as of 22 July 2020

Rights and Liberties, 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 (Question Prioritaire de Constitutionnalité) or by application of Article 61 of the Constitution (subject to conditions). Based on the hierarchy of norms, this new kind of liability of the State is stated in three decisions dated 24 December 2019 (req. N°425981, N° 425983 and N°428162).

This new regime lives now next to the already existing liability due to the application of the law (responsabilité du fait des lois) based on equal treatment before public burdens (principe d’égalité des usagers devant les charges publiques).

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 (private or public), 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 (i) the plaintiff has suffered a prejudice qualifying as important and specific (grave et special) and (ii) 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 (responsabilité sans faute de l’administration).

This possibility started in France at the beginning of the 20th century (Conseil d’Etat, case Couitéas – 1923), 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 (principe d’égalité des usagers devant les charges publiques). 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 (and not against an administrative decision only) by the Conseil d’Etat in 1938 (Conseil d’Etat, case Société la Fleurette – 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 (Conseil d’Etat case Coopérative Agricole Ax’ion – 2005).

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 (e.g. ECHR) (Conseil d’Etat, case Gardelieu – 2007).

Now, according to the new decisions of the French Conseil d’Etat dated 24 December 2019, the other grounds for indemnification are (1) that the decision of the Conseil Constitutionnel does not decide that no indemnification shall be granted either (i) by excluding it expressly or (ii) by letting alive all or only a part of pecuniary effects caused by the law, that an indemnification would challenge, (2) the existence of a prejudice and (3) the link between the prejudice and the unconstitutional application of the law.

As a consequence, a plaintiff may be indemnified in the following conditions : (i) no express exclusion of indemnification by the Conseil Constitutionnel (ii) no all or part of pecuniary effects left alive by the Conseil Constitutionnel that an indemnification would challenge (iii) and (iv) 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 (expropriation with the application of the théorie du bilan coûts / avantages), by the Conseil d’Etat (Conseil d’Etat case Ville Nouvelle Est – 1971).

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 (principe d’égalité des usagers devant les charges publiques), it can be suggested that other principles may underpin this kind of liability: preservation of legal safety (sécurité juridique) and /or granted rights (préservation des droits acquis), 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 (four) 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 (Tribunal Administratif). 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 (ordre judiciaire). Under French law, the French Conseil d’Etat is the highest court entitled to address administrative cases and is part of the administrative order (ordre administratif) whereas the judicial order (ordre judiciaire) is composed of judiciary tribunal and courts (jurisdictions judiciaires) 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.

A lack of indemnification by the French State may also give rise to a lawsuit before the ECHR (European Convention on Human Rights), a plaintiff would still have in fine, the right to be indemnified on the basis of the application of a law declared unconstitutional. From a theoretical point of view, and on the basis of the hierarchy of norms, letting a country member of the European Council apply a law declared unconstitutional could raise issues.

Up to date 24 December 2019