On 27 November 2024, the Court of Cassation confirmed the validity of using documents in a foreign language as evidence in a dispute, even in the absence of a translation. This ruling highlights the flexibility of old laws which may be still adapted to international practices. (Commercial Chamber, judgment of 27/11/2024, appeal no. 23-10.433)

The facts

In this case, Mr and Mrs [N], former partners in the company Pole Position Assurances, challenged the validity of the transfer of their shares, which they claimed had been made as a result of fraud. The key elements of the dispute included English-language emails exchanged between the parties and third parties, including a British insurance company.

Mr and Mrs [N] argued that these documents, written in a foreign language and not translated into French, could not be validly used as evidence. In particular, they invoked the Ordinance of Villers-Cotterêts of 1539, which requires the exclusive use of the French language in judicial documents, as well as the right to a fair trial protected by article 6 of the European Convention on Human Rights.

The Ordinance of 25 August 1539 on the administration of justice (known as the Villers-Cotterêts Ordinance)

This text by François I was intended to make decisions easier to understand. To this end, the Ordinance provided for the use of French instead of Latin in French legal proceedings. This text, which is still in force, takes us back to an older form of the French language.

An attempt of a translation in classic English from the 16th century :

François, by the grace of God, King of France, to all present and to come, greeting. Be it known that, for the better administration of justice, the abridgment of trials, and the ease of our subjects, we have, by perpetual and irrevocable edict, decreed and ordained, and by these presents do decree and ordain, the matters hereafter written.

Article 110
And forasmuch as we would not that there should arise any doubt touching the true intent and meaning of the said ordinances, it is our will and pleasure, and we do enjoin, that the same be so plainly and clearly set forth and written, as no ambiguity or obscurity shall remain, whereby occasion may be given for the seeking of further exposition or interpretation.

Article 111
And for that it hath often come to pass that divers difficulties and controversies have arisen by reason of the Latin words heretofore used in the said ordinances, it is our will and commandment that from henceforth all ordinances, as well as all other acts and proceedings, whether appertaining unto our sovereign courts or unto subordinate and inferior courts—be they registers, inquiries, contracts, commissions, judgments, testaments, or any other acts or exploits of justice, or depending thereon—shall be pronounced, enrolled, and delivered unto the parties in the French tongue, which is the mother tongue of this realm, and in none other.

The position of the Cour de Cassation,

The Court of Cassation rejected this argument and validated the use of emails in English, stating that :

• The Ordinance of Villers-Cotterêts applied only to official procedural documents, such as bailiff’s writs or court decisions, and not to documents produced by the parties.
• The judge, in the exercise of his sovereign power, may retain documents in a foreign language if he understands their meaning, without the need for an official translation.

The Court also held that the absence of a translation did not infringe the right to a fair trial, as the parties had been given the opportunity to present their arguments and challenge the documents.

Evolving case law

This ruling is part of a trend in case law that recognises the importance of international economic and commercial realities. In a globalised context, the exchange of documents in a foreign language is frequent, particularly in cases involving international parties.

The Cour de cassation had already addressed this issue in earlier rulings, emphasising that the judge was free to assess the need for a translation. This flexibility is intended to avoid excessive formalism that would slow down proceedings without guaranteeing a better administration of justice.

A pragmatic and nuanced decision

The decision of 27 November 2024 reflects legal pragmatism. It is based on several considerations:

1. Judges’ expertise: Judges, particularly in commercial matters, are often familiar with foreign languages and able to interpret technical or contractual documents in their original version.
2. Absence of prejudice: In this case, there was no evidence that Mr and Mrs [N] had been disadvantaged by the use of documents in English, in particular because they had themselves participated in exchanges in that language.
3. Efficiency of procedures: Requiring systematic translation could lengthen timeframes and increase costs, without any real justification.

Limits and precautions to be taken

Despite this openness, certain precautions must be observed:

• Clarity of documents: Judges must ensure that they understand the precise content of documents in a foreign language. If in doubt, a translation may be ordered.
• Equality of arms: If one of the parties does not master the foreign language, it must be given the opportunity to request a translation to preserve the fairness of the debate.

Practical implications for businesses

This judgment has significant implications for businesses and their advisers:

1. Facilitation of international litigation: This ruling confirms that foreign documents are admissible in French proceedings.
2. This case law supports international chambers: some courts, in particular the Paris Commercial Court and the Paris Court of Appeal, have set up an international chamber capable of handling cases in a foreign language and even of hearing the parties and their counsel in a language other than French. This decision by the Cour de cassation reinforces these initiatives and validates the use of foreign documents in court proceedings. Thisrepresents a major simplification for companies with international activities, who will no longer always have to translate documents in litigation in France.
3. Contractual anticipation: It remains prudent to include clauses in international contracts specifying the reference language and translation conditions in the event of a dispute.

By validating the use of foreign-language documents in domestic disputes, the ruling of 27 November 2024 reconciles respect for French procedural rules with pragmatism in the development of international trade.

Finally, this decision shows that with an old text, intended at the time to put an end to the judicial use of Latin, it is possible to change practices to adapt them to economic developments without necessarily going through a new reform or a new text.

While the use of French remains the rule, the Ordinance allows for welcome flexibility in international disputes if the principles of the right to a fair trial are respected.

By Olivier Vibert, lawyer, Paris