Litigation
In accordance with article 6.5.4 of the Internal Rules of the Paris Bar, an avocat acting as Fiduciaire must ensure that his fiduciary activities are kept separate and distinct from his other litigation activities.
Consequently, the Harlington practice now carries on in France only the activity of Fiduciaire, to the exclusion of any other litigation activity.
Nevertheless, within the framework of that fiduciary activity and in view of our knowledge and skills in this discipline, we may be led to take on litigation matters involving disputes concerning and/or against fiducies (the French-law fiducie).
A strict separation of activities in order to avoid any conflict of interest.
Fiduciary litigation
Drawing on a keen command of fiduciary practice in the matters entrusted to us and on the many training sessions delivered each year to avocats, notaires, judges, wealth engineers and other wealth management advisers, the avocats of the firm may occasionally be called upon to act in litigation concerning fiducies-sûretés (the French-law fiducie used by way of security) where the undertakings of the Settlors, of the Beneficiaries and/or of the Fiduciaires are not properly complied with.
The fiducie (the French-law fiducie) may also be an effective tool in environmental criminal litigation, where orders to restore sites run over several decades in order to restore flora, fauna and biodiversity — something which only a Fiduciaire can ensure over time, in complete independence and impartiality, while reporting on its diligence to the judge where the judgment so requires.
In inheritance disputes, it is also frequent for the fiducie to be challenged by certain heirs seeking to lay hold of its income and/or its capital. The same issue arises in the event of a divorce or of a separation between partners where a fiducie is involved.
Lastly, in insolvency proceedings, it is not uncommon for creditors who discover (belatedly) the strength of the fiducie as a tool lawfully placing the Fiduciary Patrimony beyond the reach of creditors to seek (in vain) to involve it in an attempt to recover its capital.
Although such actions are systematically doomed to fail owing to the robustness of the fiducie, a thorough knowledge of the subject remains indispensable precisely so that this protection may be fully activated and deploy its full potential.
Protector litigation
While it is particularly rare for the Fiduciaire’s liability to be incurred, given the already very strict framework governing the instrument, it may be more common for litigation to arise between those entitled and the protector who has failed in their duties.
This type of particularly technical litigation requires a thorough command and detailed knowledge not only of the rules of civil law but also, and above all, of the rules specific to the fiducie (the French-law fiducie) and to financial and accounting matters.
International fiduciary litigation
In the most frequent scenario, where a foreign judgment capable of being granted exequatur in France is handed down, how should the Fiduciaire react and what rights may it assert against the foreign decision ? This issue, a crucial one in a globalised economy where assets may be situated anywhere in the world (US shares, investment in Africa, Private Equity in Asia, real property in Europe, etc…), exposes the fiducie (the French-law fiducie) to a multitude of different questions and configurations.
For that purpose, a specialist in international litigation is generally not sufficient without a detailed knowledge of how the fiducie operates, all the more so as foreign courts, in particular common-law courts, often reason, wrongly, by analogy with the trust, whose differences from the fiducie are at times considerable.
Administrative fiduciary litigation
Lastly, and more rarely, the French-law fiducie (in particular in matters of hostile stake-building on the financial markets) may lie at the heart of a regulatory or administrative matter before the independent administrative authorities. The procedure, rarely contentious but most often amicable, is generally settled by providing detailed explanations and precise documents to the authorities in order to dispel doubts and grey areas.
In these situations, we are essentially contacted to issue opinions or legal consultations in order to inform the parties and the administration, in a spirit of sharing and constructive cooperation.
Need assistance in litigation?
Contact our litigation department now!
- contact@harlington.eu
- +33 (0)153 838 530