Jurisdiction Clause (Article 48 CPC): Locking In Your Court Before a Dispute

A distribution contract is signed between a Paris company and a supplier based in the provinces. Eighteen months later the dispute breaks out and the summons arrives before a court 600 kilometres from the claimant's head office, even though the general terms designated the Paris commercial court (tribunal de commerce). The clause was in the contract, but in the body of the text, buried in an article headed "Miscellaneous provisions". It will have no effect. Article 48 of the French Code of Civil Procedure sets two cumulative conditions, failure to meet which renders a jurisdiction clause (clause attributive de compétence) ineffective, and case law adds a series of limits that drafters underestimate. This guide covers the drafting of the clause between traders, how it fits with mediation and arbitration clauses, and the procedural lever it gives the defendant once the dispute has begun.

What Article 48 CPC allows, and what it does not

The provision is short and its wording governs the whole analysis.

Any clause which, directly or indirectly, derogates from the rules of territorial jurisdiction is deemed unwritten unless it was agreed between persons who have all contracted as traders and unless it was specified in a very conspicuous manner in the undertaking of the party against whom it is invoked.

Three immediate lessons. First, the scope of the derogation is confined to rules of territorial jurisdiction alone. The clause makes it possible to set aside the general rule of Article 42 CPC, which designates the court of the place where the defendant resides, and the options offered to the claimant by Article 46 CPC: in contractual matters, the court of the place of actual delivery of the goods or of performance of the service; in tort matters, the court of the place of the harmful event or of the area in which the damage was suffered. It is precisely this range of options, favourable to the claimant, that the clause closes off.

Second, Article 48 does not concern subject-matter jurisdiction (compétence d'attribution). A clause cannot transfer to the commercial court a dispute that falls within the judicial court (tribunal judiciaire), or the reverse. On this point, Article 41 CPC opens only a narrow window: once the dispute has arisen, the parties may agree that their dispute will be judged by a court that lacks jurisdiction because of the amount claimed. The agreement is therefore valid only after the dispute has arisen, and only as to the amount. A clause inserted in the contract that purported to fix the type of court with jurisdiction would exceed the statutory authorisation.

Finally, the sanction is that the clause is deemed unwritten, not nullity. The irregular clause has no effect without any need to have it annulled: the point is raised by way of defence. The wording of the provision is itself instructive: the conspicuousness condition is assessed in the undertaking of the party against whom it is invoked, which shifts the analysis from the contract taken as a whole to the document that the party challenged actually signed or accepted.

The two cumulative conditions for effectiveness

All parties must have contracted as traders

The provision does not say "between professionals", a formulation found in many contract templates. It requires that the clause have been agreed between persons who have all contracted as traders. The condition is twofold: it concerns the status of each party, and the fact that it contracted in that capacity.

This creates an area of weakness for any contract involving a party whose trader status is not established. The assessment of that status, according to the corporate form, the activity actually carried on or the nature of the act, is entirely a matter for case law and calls for a case-by-case analysis before the clause is inserted. In practice, a contract concluded with a craftsman, a farmer, a member of a liberal profession, an association or a body with no commercial activity should be treated as a contract in which the jurisdiction clause will be, at best, uncertain.

Outside relations between traders, the law also provides protections that the clause will not withstand. Article R. 631-3 of the French Consumer Code allows the consumer to bring proceedings either before one of the courts with territorial jurisdiction under the Code of Civil Procedure, or before the court of the place where the consumer resided at the time the contract was concluded or the harmful event occurred. A jurisdiction clause inserted in a contract with a non-trader locks nothing in.

Specification "in a very conspicuous manner"

The second lock is formal. The provision does not require that the clause be conspicuous, but that it be specified in a very conspicuous manner. This gradation is the source of most failures in litigation: a clause perfectly drafted in substance, inserted in the middle of a catch-all article in the same type as the rest of the contract, is regularly deprived of effect.

The exact contours of the requirement are a matter for the sovereign assessment of the trial courts and no statutory list fixes them. The checkpoints that practice retains concern typographical contrast, the position of the clause in the document, its own heading, and above all its presence in the document that the party against whom it is invoked actually accepted. A reference to general terms printed on the back of an order form, or to a document accessible online, shifts the discussion to whether the counterparty accepted those terms, a distinct but equally decisive question.

Three drafting reflexes follow. Isolate the clause under an explicit heading, at the end of the contract but before the signatures, in a typeface distinct from the body of the text. Have the page containing it specifically initialled where the contract is signed in paper form. Check, where the contractual arrangements consist of several documents, that the clause appears in the one that carries the counterparty's undertaking, and not only in general terms whose enforceability would have to be demonstrated. The general framework of a contract between supplier and buyer, of which the dispute resolution clause is only one element, is set out in our article on the essential clauses of the B2B commercial contract.

The limits that neutralise an otherwise valid clause

Compulsory joinder: the blind spot of Article 333

The jurisdiction clause gives way to a third-party claim for indemnity (appel en garantie). Article 333 CPC provides that the third party brought into the proceedings must proceed before the court seised of the original claim, and may not decline the territorial jurisdiction of that court, even by relying on a jurisdiction clause.

The consequence is significant in multi-tier transactions: subcontracting chains, lender pools, groups of construction contracts, business transfers accompanied by a warranty of liabilities. A supplier who has carefully negotiated the jurisdiction of the Paris commercial court with its customer will find itself brought before the court seised of the main dispute between that customer and a third party. The remedy is contractual, not procedural: it consists in harmonising the jurisdiction clauses across the whole contractual chain, so that the court hearing the original dispute is already the one that was intended.

Exclusive jurisdictions fixed by law

Some disputes by nature escape the will of the parties. Section III of Article L. 442-4 of the French Commercial Code, in the wording resulting from Ordinance No. 2019-359 of 24 April 2019, provides that disputes relating to the application of Articles L. 442-1, L. 442-2, L. 442-3, L. 442-7 and L. 442-8 of the same Code are assigned to the courts whose seat and area are fixed by decree, the lists appearing in Articles D. 442-2 and D. 442-3. Significant imbalance, an advantage obtained without consideration and the sudden termination of an established commercial relationship therefore fall within specialised courts, whatever the clause in the contract. The conditions of termination, the calculation of the notice period and compensation are dealt with separately in our article on sudden termination of established commercial relationships.

This exclusivity creates a risk of the dispute being split. A claim for payment based on the contract will fall within the court designated by the clause; a counterclaim based on restrictive practices will fall within the specialised courts. Whether a jurisdiction clause can be relied on against tort claims connected with the contract is a delicate question of case law, which justifies drafting that expressly covers disputes arising in connection with the contract, without however guaranteeing that the litigation will be concentrated in one court.

International situations

As soon as a party is established outside France, Article 48 CPC is no longer the provision applicable to the validity of the clause. The regime then comes under separate instruments, notably European Union law and international conventions, whose formal and substantive conditions do not overlap with those of the Code of Civil Procedure. Mechanically transposing the clause of a domestic contract into a cross-border contract is a methodological error: the clause must be drafted by reference to the provision that governs it.

Combining the jurisdiction clause with mediation and arbitration

Arbitration clause (clause compromissoire): an exclusion, not an adjustment

A jurisdiction clause and an arbitration clause do not complement each other, they exclude each other. The Commercial Code recognises the possibility of using the latter: Article L. 721-3, after setting out the jurisdiction of the commercial courts, provides that the parties may, at the time they contract, agree to submit the listed disputes to arbitration. On the decisive wording and the drafting pitfalls of this clause, see our analysis of arbitration in B2B and property contracts.

Three validity rules should be checked before any signature. The arbitration agreement must be in writing on pain of nullity and may result from an exchange of documents or from a document referred to in the main agreement (Article 1443 CPC). It is independent of the contract to which it relates and is not affected by the ineffectiveness of that contract; where it is void, the arbitration clause is deemed unwritten (Article 1447 CPC). Finally, Article 2061 of the French Civil Code, in the wording resulting from Law No. 2016-1547 of 18 November 2016, states that the clause must have been accepted by the party against whom it is invoked, unless that party has succeeded to the rights and obligations of the party who initially accepted it, and that where one of the parties has not contracted in the course of its professional activity, the clause cannot be invoked against it. The former wording, which validated the arbitration clause in contracts concluded by reason of a professional activity, is no longer positive law.

One exception directly concerns creditors: the last paragraph of Article L. 721-3 of the Commercial Code, introduced by Ordinance No. 2021-1192 of 15 September 2021, provides that where the guarantee (cautionnement) of a commercial debt was not given in the course of the guarantor's professional activity, the arbitration clause cannot be invoked against the guarantor. A lender who submits the main contract to arbitration therefore risks pursuing the debtor before an arbitral tribunal and the guarantor who is a manager before a state court, with the resulting risk of divergent assessments.

The competence-competence principle, which gives the arbitral tribunal priority to rule on its own jurisdiction, also frames the intervention of the state court. The applicable wording must be checked against the text before it is cited in submissions, as the provisions of the Code of Civil Procedure on arbitration have been amended several times.

Prior mediation or conciliation clause: an inadmissibility defence, not a procedural objection

A clause requiring an attempt at amicable resolution before any referral to a judge does not operate in the same register. It does not designate a court: it makes the right to bring proceedings conditional. The courts consider that such a clause, where it is sufficiently precise as to how it is to be implemented, constitutes an inadmissibility defence (fin de non-recevoir); this solution comes from case law and does not appear in the list in Article 122 CPC.

This characterisation governs the order in which the grounds are presented, a point developed below. It is also distinct from the statutory obligation to attempt resolution beforehand under Article 750-1 CPC, which applies, on pain of inadmissibility that the judge may raise of his or her own motion, to claims for payment of a sum not exceeding €5,000, to those relating to the actions mentioned in Articles R. 211-3-4 and R. 211-3-8 of the Code of Judicial Organisation, and to abnormal neighbourhood disturbance, with the cases of exemption it lists, including manifest urgency.

For a commercial contract with significant stakes, the escalation clause should therefore be drafted with three precautions: a precise waiting period and an identifiable starting point, the designation of a workable mediation mechanism, and an express reservation for urgent and protective measures, failing which the clause may block access to summary proceedings (référé) at the moment when they are most useful. Article 54 CPC also requires the originating claim, on pain of nullity, where it must be preceded by an attempt at conciliation, mediation or participatory procedure, to state the steps taken with a view to an amicable resolution of the dispute or the justification for exemption from such an attempt.

The procedural lever: what the clause allows once the dispute has arisen

The judge will not raise lack of territorial jurisdiction

Article 76 CPC is the decisive provision for procedural strategy. Subject to Article 82-1, lack of jurisdiction may be declared of the court's own motion where a rule of subject-matter jurisdiction has been breached, when that rule is a matter of public policy or when the defendant does not appear. It may be so declared only in those cases. Lack of territorial jurisdiction resulting from a failure to respect a jurisdiction clause therefore cannot be raised by the court of its own motion once the defendant appears.

Operational consequence: the clause is a lever entirely in the defendant's hands. A claimant who deliberately brings proceedings before a court other than the one designated by the clause is taking a calculated gamble; if the defendant lets the right moment pass, the court seised will remain competent. Conversely, the defendant has a means of disrupting the opposing timetable, provided it is exercised in the proper form and in the proper order.

The double bar of Articles 74 and 75

Article 74 CPC requires that procedural objections (exceptions) be raised, on pain of inadmissibility, simultaneously and before any defence on the merits or inadmissibility defence, and specifies that this applies even where the rules relied on in support of the objection are matters of public policy. The sequence is therefore fixed: objection of lack of jurisdiction first, inadmissibility defence based on the mediation clause next, defence on the merits last. Reversing this order in the first submissions amounts to waiving the jurisdiction clause.

Article 75 CPC adds a second requirement as to content: if it is alleged that the court seised at first instance or on appeal lacks jurisdiction, the party raising that objection must, on pain of inadmissibility, give reasons and state in every case before which court it asks that the case be brought. An objection raised without precise designation of the court to which the case is to be sent is inadmissible. The wording resulting from Decree No. 2017-891 of 6 May 2017 expressly refers to the court seised at first instance or on appeal.

Before the judicial court in written procedure, the objection falls to the pre-trial judge (juge de la mise en état), who alone has jurisdiction, to the exclusion of any other formation of the court, to rule on procedural objections under point 1° of Article 789 CPC, in the wording in force since 7 May 2026 resulting from Decree No. 2026-337 of 30 April 2026. Within a judicial court, questions of internal jurisdiction may also be settled before the first hearing by a note on the file under the conditions of Article 82-1 CPC.

The effects of the decision: designation or referral to the appropriate forum

Article 81 CPC distinguishes two situations. Where the judge considers that the case falls within the jurisdiction of a criminal, administrative, arbitral or foreign court, he or she merely refers the parties to seek redress elsewhere (renvoi à mieux se pourvoir). In all other cases, the judge designates the court considered competent, and that designation is binding on the parties and on the court to which the case is sent.

The difference is not theoretical for the timetable. Where the clause is a domestic jurisdiction clause, the designation binds the receiving court and the proceedings continue. Where the clause is an arbitration clause, the referral to seek redress elsewhere leaves the claimant with the burden of starting entirely new arbitration proceedings, with the corresponding cost and delay. In a defence strategy, the gap between the two outcomes is substantial.

Article 82 CPC governs what follows: failing an appeal within the time limit, the court registry (greffe) sends the file to the designated court with a copy of the referral decision; the parties are invited to continue the proceedings and, where applicable, to instruct a lawyer within one month of that notice; where representation is compulsory, the case is automatically struck off if no party has instructed a lawyer within that period. That month is a classic point of vigilance for the claimant and the defendant alike.

Appeal: fifteen days, and lapse

The contredit has disappeared. Since Decree No. 2017-891 of 6 May 2017, Article 83 CPC provides that the decision of a judge who has ruled on jurisdiction without ruling on the merits is open to appeal, as is the case where the judge rules on jurisdiction and orders a measure of inquiry or an interim measure.

The timetable is tight. The time limit for appeal is fifteen days from notification of the judgment by the registry, addressed to the parties by registered letter with acknowledgement of receipt and, in procedure with compulsory representation, to their lawyer. Above all, the appellant must, on pain of lapse of the notice of appeal, apply, within the appeal period, to the First President with a view, as the case may be, to being authorised to summon on a fixed date (jour fixe) or to obtaining priority scheduling of the case (Article 84 CPC). The notice of appeal must state that it is directed against a judgment ruling on jurisdiction and must be reasoned on pain of inadmissibility, either in the notice or in accompanying submissions (Article 85 CPC). Three formalities, three distinct sanctions, within fifteen days: preparation of the appeal must begin as soon as the judgment is delivered, not on receipt of the notification.

Checklist for drafting and contract audit

• Check that all parties contract as traders, and document that status at the time of signature.
• Isolate the clause under its own heading, in a clearly distinct typeface, and have it appear in the document carrying the counterparty's undertaking.
• Designate a single court, identifiable without ambiguity, and state the exclusive nature of the designation.
• Draft the material scope broadly: formation, performance, interpretation, termination and disputes arising in connection with the contract.
• Harmonise the jurisdiction clauses across the whole contractual chain to limit the effect of Article 333 CPC.
• Choose explicitly between state court and arbitration, without combining contradictory clauses in different documents.
• If a prior mediation clause is retained, set a time limit, a mechanism and a reservation for urgent measures.
• For cross-border contracts, draft the clause by reference to the applicable international text, and not Article 48 CPC.

Conclusion

The jurisdiction clause is one of the few stipulations whose value is measured entirely at the time of litigation, and whose drafting costs almost nothing at the time of signature. Our position is clear: in a commercial contract with significant stakes, the absence of a jurisdiction clause or its careless drafting is a free transfer of procedural advantage to the future claimant, who will retain the options of Article 46 CPC. But a clause is worth only as much as its procedural enforcement: it will never be raised of the court's own motion, it is lost if the objection is not raised before any defence on the merits, and it is inadmissible if the pleading does not designate the court to which the case is to be sent.

Two practical actions. Have your contract templates and general terms audited against the sole criterion of Article 48 CPC, checking the trader status of counterparties and the physical visibility of the clause in the signed document. And on receipt of any summons, treat the question of jurisdiction as the first decision in the case, before writing a single line of defence on the merits.

Frequently asked questions

Is a jurisdiction clause valid between a commercial company and a craftsman? Article 48 CPC requires that the clause have been agreed between persons who have all contracted as traders. The provision does not refer to "professionals" in general. Whether a craftsman, farmer, member of a liberal profession or association has trader status is a matter for the courts to assess case by case. In practice, a clause inserted in a contract with a party whose trader status is not established should be regarded as fragile and should not serve as the basis for a procedural strategy.

What is the sanction for a jurisdiction clause that is not conspicuous enough? It is deemed unwritten, not void. The clause then has no effect and jurisdiction is determined under Articles 42 and 46 CPC. The point must still be raised: Article 76 CPC prohibits the judge from raising lack of territorial jurisdiction of his or her own motion where the defendant appears, subject to Article 82-1.

Can a clause confer jurisdiction on the commercial court rather than the judicial court? No. Article 48 CPC applies only to rules of territorial jurisdiction. Subject-matter jurisdiction is outside the parties' control, subject to the narrow reservation of Article 41 CPC: once the dispute has arisen, the parties may agree that their dispute will be judged by a court that lacks jurisdiction because of the amount claimed. The agreement is therefore possible only after the dispute has arisen and only on that point.

When must the objection of lack of jurisdiction be raised? Before any defence on the merits or inadmissibility defence, and simultaneously with the other objections, on pain of inadmissibility (Article 74 CPC), including where the rule relied on is a matter of public policy. Article 75 CPC also requires, on pain of inadmissibility, that the objection be reasoned and that the party state before which court it asks that the case be brought. Before the judicial court in written procedure, the pre-trial judge alone has jurisdiction to hear it under point 1° of Article 789 CPC.

Can a jurisdiction clause be relied on against a third party brought in to give an indemnity? No. Article 333 CPC provides that the third party brought into the proceedings must proceed before the court seised of the original claim, without being able to decline its territorial jurisdiction, even by relying on a jurisdiction clause. This is the main limit on the effectiveness of the clause in multi-tier contractual arrangements. The only remedy is to harmonise the clauses across the whole chain.

How is a judgment ruling on jurisdiction challenged? By appeal since Decree No. 2017-891 of 6 May 2017, the contredit having disappeared (Article 83 CPC). The time limit is fifteen days from notification of the judgment by the registry and the appellant must, on pain of lapse of the notice of appeal, apply to the First President within that same period to be authorised to summon on a fixed date or to obtain priority scheduling (Article 84 CPC). The notice of appeal must state that it is directed against a judgment ruling on jurisdiction and must be reasoned on pain of inadmissibility (Article 85 CPC).

Can a prior mediation clause and a jurisdiction clause coexist in the same contract? Yes, but they do not operate on the same ground: the jurisdiction clause supports an objection of lack of jurisdiction, while the prior mediation clause is analysed by the courts as an inadmissibility defence. Article 74 CPC requires the objection of lack of jurisdiction to be raised before any inadmissibility defence, which governs the order of the grounds in the first submissions. The mediation clause must also expressly reserve urgent and protective measures.