Doing business in France … The Commercial Lease “le bail commercial”

In last month’s blog, I mentioned the legal status of contracts and so today will speak of how this legal status can be sought to be enforced in relation to  commercial property and more specifically the commercial lease “le bail commercial”.

I shall just underscore here (without more) that the colloquial term of “commercial property” under English Common Law, is very different to what is termed as “propriété commerciale” in French Law. This term in French Law will be developed further here, but first let’s look at the legal status of contracts.

Legal status of the commercial lease “le bail commercial”

There are a plethora of statutory requirements to be fulfilled before a commercial lease “bail commercial” can be concluded and, indeed, there are applicable conditions to be met, pursuant to statute, where one decides he wants a commercial lease “bail commercial”.  In fact, some of the conditions relate to, in part, the type of property, the type of activity or business, etc.

Conclusion and execution of the commercial lease “bail commercial”

Consent is sine qua none in contract law and so, it is of no surprise that this is one of the first requirements surrounding letting commercial property.  Moreover, the party seeking the lease must have capacity to contract.  Certain entities and persons cannot sign a commercial lease “bail commercial”, for example, doctors are forbidden from having a commercial lease “bail commercial”.

Further, and generally, the leasehold “le bail commercial” will be for a nine-year period and comes with the much coveted, right to renew! This right is attached to the lessee whom the legislator has decided ought to bear the fruit of his labour in building business and indeed, a reputation, over the last nine years and so in exchange, he gets the automatic right to renew his lease “bail commercial” after the nine-year period.   Hence the commercial lessee obtains what is known in French as a “propriété commerciale” or the right to commercially exploit this property.

Limitations to the right to renew

Because of the consequences flowing from the lessor agreeing a commercial lease “bail commercial”, it is no surprise that this right is limited by imposing obligations and charges on the lessee. Thus, the lessee who does not respect his obligations under the commercial lease “bail commercial” may loose the right to exploite the commercial lease “bail commercial” and indeed, may loose the coveted and priviledged right to renew.

Litigation 

Clearly one understands the relevant garanties in the commercial lease “bail commercial” for the parties, on the one hand the lessee gets to build business, reputation, etc in one location and on the other hand, the lessor is garanteed payments and upkeep of the premises.

But automatically respecting these obligations and garanties only happens in a perfect world. And it is because we live in a not-so-perfect world, that the High Court (Tribunal de Grande Instance) has been given exclusive jurisidiction in all matters relating to “le bail commercial”. And litigation as a result of the lessor refusing to renew the “bail commercial” ranges from non-payment of rent, or untimely payment of rent, or unkept premises, or degradations, etc… The list is non-exhaustive thus cannot all be addressed here.

Notice and Enforcement

And it is because litigation is so frequent in cases relating to “le bail commercial” that the legislator has put in mandatory notice requirement before any litigation. Moreover notice must be certain and thus must take a specific form, otherwise the action before the court will be nullified!

Conclusion

Foreigners are now, not only entitled to “le bail commercial” but equally to the coveted right to renew here in France. I would therefore empress here that consulting an English speaking Avocat ought be at the fore before negotiating any type of agreement for commercial exploitation.

Remember “Les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites… Elles doivent être exécutées en bonne foi.“…

Contact

Marcia B Moulon-Atherley, Attorney at Law and Avocat à la Cour

Law Office of Marcia B. Moulon

www.moulonlaw.com 

Copyright Marcia B. Moulon-Atherley, Esq. 2012-2015. All Rights Reserved.

Posted in Attorney at Law, Avocat, Practising Attorney | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Doing business in France … Freezing Orders

I am launching a new information series relating to cultural concepts in regards to doing business in France.  This is the first and in this blog, we will focus on the notion of asset freezing or as it is known in France “la saisie conservatoire”.

As a dual citizen, I am all to aware of the difficulties in understanding French concepts of English business and legal concepts… The language, like the culture, while romantic, remains so distant to many anglosaxons. It is no surprise that anglosaxons globally prefer doing business in – well – English-speaking countries…. Familiarity of the language (forget the plethora of accents extant) make it that much easier… Thoughtless, really.

So you are one of the braves who has purchased an item e.g car, boat, house, plane, service, or has sold an item or even a bank (or lending institution) who has lent money to a French individual, company, etc. And you are owed money. I will not speak of the consumer protection concepts here in France, but know they exist!

Contracts have legal status

There is a beautifully written piece of legislation written in the French Civil Code, and anyone working in contract enforcement will quote it because of it’s legal force… Remember it… for it gives enforceable legal force to contractual arrangements. “Les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites… Elles doivent être exécutées en bonne foi.

So using this legal maxim, written in by the French legislator, you can seek to freeze assets of an individual, company, association, etc.  But be warned, once the process of a “saisie conservatoire” has commenced, the steps to be followed must be undertaken in the proper legal order AND delays MUST be kept to the T!

Seeking enforcement

A party seeking a “saisie conservatoire” must be mindful that there is no ONE SIZE FITS ALL procedure in France! One of the first things to bear at the fore is the type of asset for which the “saisie conservatoire” is being sought. Once the asset has been identified, among the other equally important information are location of the asset AND JUDICIAL COMPETENCE!

Judicial competence is important because, of course, if the process is introduced before the wrong Judge or wrong court (some judges and tribunals have exclusive competence based on the type of matter) your initial request could be thrown out! Also, there is the advantage of saving on court fees when introducing the matter before the Judge who is exclusively competent!

Similarly, delays must be respected after initial introduction. Once a request for a “saisie conservatoire” has been initially introduced, there are other mandatory procedures and a time-frame within which these must be fulfilled.  Some of the criteria the court will look at in ensuring that the introducing party has fulfilled those requirements are the type of intermediary proceeding (is it of a summary nature?), judicial incompetence, service of process, etc. Of course the non-respect of delays will affect obtaining the final order which is the “titre exécutoire” and indeed, the execution  of same.

And finally, it is worth bearing in mind that a request for a “saisie conservatoire” can be introduced even during insolvency proceedings or Chapter 11 proceedings!

Contact

Marcia B Moulon-Atherley, Attorney at Law and Avocat à la Cour

Law Office of Marcia B. Moulon

www.moulonlaw.com

Copyright Marcia B. Moulon-Atherley, Esq. 2012-2015. All Rights Reserved.

Posted in Practising Attorney | Tagged , , , , , , , , , , , , , , , , , ,

I love music….

It dawned on me while returning to my office this afternoon. It was a glorious day in Rennes, France and I was returning from lunch, walking and listening to Mozart’s Piano Sonata N° 11 (1st Movement)…

Contemplating on a strategy which I would later elaborate with a client in the entertainment industry, it dawned on me, that the reason I work in the arts and entertainment industry is because I love music… I love the intricate sound of the notes, the mixing, the arranging, the compilation and indeed, the live performances…

It is true that one spends the better part of her life trying and testing projects, hoping to feel some passion that will make us willing to launch a business project.  Trying to feel something – even close to passion – which will move us and in turn, will move others through our work and commitment…. I can safely say, I have found my passion in music and the arts and entertainment! 

How do you know? I ask myself. It’s a warm feeling… If you’ve experienced true love in whatever shape, manner or form, you will know…. You will know because you are committed to doing what you do… You will know because you are hooked on what you do… You will know because you give of yourself and invest in what you do… And you will know because all your worries disappear, when you listen to music, or stop and contemplate a piece of art, or you dance, or you get involve in playing a video game, or you watch a film, or you get caught by comedy and you are folded over with laughter … You transform … You merge with the music or the art, or the game, or the dance, the film or the comedy.

It is exactly for that reason that I take a protectionist and perfectionist approach while working with my clients who are in the entertainment and arts industry…

I understand that my clients are artists and may not necessarily see the global picture in understanding the hypnotic effect of their work. It is the reason why I am their voice of reason because, in addition to being an Attorney at Law, I am the end consumer and so therefore, I reason like an end consumer who loves music, art and entertainment.

Of course the global market is vast and business projects are innumerable.  The risks are high and investment costly, but driven by passion it becomes effortless. I find it unimaginable to think of anything else which gives such a warm and comfortable feeling (well there are a limited few).  A feeling of completeness which can spread globally. Which can be shared with millions and which can – without an iota of doubt – bring so much love and togetherness in people – even just for a moment – and so therefore makes it all worthwhile.

Contact

Marcia B Moulon-Atherley, Attorney at Law and Avocat à la Cour

Law Office of Marcia B. Moulon

www.moulonlaw.com

Copyright Marcia B. Moulon-Atherley, Esq. 2012-2015. All Rights Reserved.

Posted in Practising Attorney | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

IP Education

Source: World Intellectual Property Organisation

Trade marks

A trade mark is a distinctive sign which distinguishes the goods produced by one person or business from the goods of another.It is unique in that it helps consumers identify and purchase a product or service because of its quality, thus meeting the needs of the consumer.

Geographical Indications

Any sign used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin.

Copyrights and Related Rights

A legal term given to creators for their literary and artistic works. The works protected include novels, poems, plays, reference works, newspapers and computer programs, databases, films, musical compositions, and choreography, artistic works such as paintings, drawings, photographs and sculpture, architecture, and advertisements, maps and technical drawings.

Trade Secrets

Any confidential business information which provides a business with a competitive edge may be considered a trade secret. Trade secrets include manufacturing or industrial secrets and commercial secrets.

Industrial Designs

The ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, (the shape or surface of an article), or of two-dimensional features, (patterns, lines or color).

Patents

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.

Database

Any collection of independent works, data or other materials arranged systematically or methodically and which can be independently accessed by electronic or other means.

Integrated Circuits

Any product which in its final or intermediate form, in which at least one element is an active element, and some or all of the interconnections are integrally formed in and/or on a piece of material and which performs an electronic function.

Layout-design (Topography)

The three-dimensional disposition of the elements, of which at least one is an active element, and all or some of the interconnections of an integrated circuit, or of such a three-dimensional disposition prepared for an integrated circuit which is intended for manufacture.

Contact

Marcia B Moulon-Atherley, Attorney at Law and Avocat à la Cour

Law Office of Marcia B. Moulon

www.moulonlaw.com

Copyright Marcia B. Moulon-Atherley, Esq. 2009-2012.  All Rights Reserved.

Posted in Practising Attorney

Offshore Investment

Many European businesses are more than ever feeling the pinch of the global financial crisis. Faced with increased level of taxation and fiscal bodies being more scrupulous than ever, businesses are seeking to invest in low-taxation economies, while continuously being conscious of ‘green’ clean investment.

While these businesses are seeking to move their investment (manufacturing, industrial base, services and know-how) from developed countries to developing countries, it is clear that these investors want the reassurance that their intellectual property rights will remain protected and, that there are in these developing countries, the relevant skilled persons and experts who will ensure effective enforcement of their intellectual property rights.

We work with many such investors who seek to outsource and / relocate their businesses to a Caribbean offshore location. This economic transition to offshore locations has been seen to lead to social, economic and in the past, carbon emissions growth…

Some of the investment options available in mitigating climate change and carbon emissions growth in the Caribbean region include:

  • Renewable energy systems www.wbcsd.org (photovoltaic technology) – www.epia.org, the wind sector – www.ewea.org, biofuel technology – www.greentechmedia.com
  • Reforestation through technical solutions (reforestation of primary broad leaf forests has been known to provide watershed, oxygen and species-diversification) – www.wbcsd.org
  • Carbon trading mechanisms turning forests into assets and encouraging reforestation. Include REDD (Reducing Emissions from Deforestation and Forest Degradation)

There is increasing trend in investment in technology and forests / reforestation. Additionally, there are several technology sharing models which would facilitate investing in the Caribbean region to include:

Patent pools – participating patent holders agree to license their technology to another. The technology is usually in a well-defined field or specific patents may be identified.

Patent commons – holders of patented technology can pledge same for widespread use for not royalty payment – particularly used for environmentally beneficial technologies which are not central to the business of the patent holder. The Eco-Patent Commons an initiative launched by the World Business Council for Sustainable Development (WBCSD) www.wbcsd.org in Geneva.

Open innovation, open source, commons-based peer production and distributed innovation – a cluster of related concepts in innovation models that emphasize a collaborative or shared technological platform.

Open source – technological platform which is left open for others to use and adapt on the basis of which, innovations can in turn be shared.

Open innovation – defined as “combining internal and external ideas as well as internal and external paths to market to advance the development of new technologies.”

Commons-based peer production – “the development of innovative products through collective efforts in networks spanning different organisations, institutions or individuals”.

Contact

Marcia B Moulon-Atherley, Attorney at Law and Avocat à la Cour

Law Office of Marcia B. Moulon

www.moulonlaw.com

Copyright Marcia B. Moulon-Atherley, Esq. 2011-2015.  All Rights Reserved.

Posted in Attorney at Law, Avocat, Practising Attorney | Tagged

It’s not the final destination it’s the journey getting there

Welcome to my website where you learn  about your current or future Attorney at Law and Avocat à la Cour.

After thirteen years in Europe, I had taken a year and a half from being in Europe because I wanted to achieve two things. The first was to find the man of my dreams, in the Caribbean, who would wish to set up life with me in Europe, and to whom I would get get married.  The second, was to do the relevant attorney training in the Caribbean which would serve two purposes. Firstly, that I would familiarise with my roots in the Caribbean and secondly, that I get sworn in as an Attorney in one or two of the English-speaking Caribbean islands.

I am delighted to announce that I have successfully accomplished both of my dreams! Indeed, I met Andy my husband, a Barbadian Civil & Structural Engineer on the island of Dominica (where I was born), who, incidentally, did all of his tertiary studies in Britain. And, I have successfully completed the foreign Attorneys training course with the Hugh Wooding Law School in Trinidad, which leads to the Legal Education Certificate, (LEC), the quintessential document to be recognised as an Attorney in the Courts of the English-speaking Caribbean, and thus by my peers in those islands.

Andy and I both want to achieve similar goals and therefore tied the knot in his homeland of Barbados in early June 2011, and after our honeymoon, I was sworn in as an Attorney at Law in both Barbados and Dominica.

Although we have returned to France, I have retained my virtual law office in New York and commute to New York and the relevant Caribbean islands for the purpose of litigation.

As well as having a diverse practice with focus on Intellectual Property, Commerce and Business, I am a member of various sections of the American Bar Association to include the sections in International Law, Business Law, Antitrust, Intellectual Property and Franchise and Distribution. I am also a member of the International Division of the Law Society of England and Wales.

Contact

Marcia B Moulon-Atherley, Attorney at Law and Avocat à la Cour

Law Office of Marcia B. Moulon

www.moulonlaw.com

Copyright Marcia B. Moulon-Atherley, Esq. 2011-2015. All Rights Reserved.

Posted in Attorney at Law, Avocat, Practising Attorney | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 13 Comments