International contract lawyer in Paris: governing law, court, Incoterm and payment settled before the first delivery.

Four points deserve careful reading before signing or the first shipment. First, the chosen law: the parties may designate the law governing all or part of their contract, under Article 3 of the Rome I Regulation, and that choice will govern formation, warranties and compensation. Second, the court: a clause designating a court of a Member State of the Union is in principle exclusive, under Article 25 of the Brussels I bis Regulation. Third, the Incoterm, with its named place, which fixes delivery, costs and the passing of risk. Finally, payment: currency, due date, retention of title, documentary credit or bank guarantee. These clauses must be consistent with one another. A sale concluded with a departure-point Incoterm, a clause designating the customer's court and payment at sixty days without a guarantee leaves the exporter in a fragile position if the goods are disputed. The firm also examines the documents that accompany the contract, because a purchase order or a confirmation may refer to other general terms. A review carried out before signing costs less than a jurisdiction challenge conducted before a foreign court.

It contributes directly. For the sale of goods, Article 7(1)(b) of the Brussels I bis Regulation allows a defendant domiciled in one Member State to be sued before the court of another Member State, that of the place in the Union where, under the contract, the goods were or should have been delivered. Outside that framework, other rules of jurisdiction apply. The Court of Cassation has held that this place is determined from the terms of the contract, Incoterms included. It rejected the argument that the actual place of handing over must prevail, holding that “the ground of appeal, which rests on the erroneous premise that, where the place of delivery stipulated in the contract between the parties differs from the actual physical place of delivery, the latter must prevail, is unfounded” (Cass. com., 8 February 2023, No. 21-13.536, our translation). In the same case, it quashed the judgment that had accepted French jurisdiction without establishing that the German seller had accepted a delivery clause contained in a document it had not signed, even though its invoice repeated the EXW Incoterm. A written and accepted Incoterm therefore weighs on the choice of court. It does not replace a jurisdiction clause, which remains the surest way of fixing the court.

According to the French customs administration's information sheet on the Incoterms 2020 rules, the EXW rule places the fewest obligations on the seller, who makes the goods available at its premises, while the buyer bears loading, transport and export formalities. The sheet states that the International Chamber of Commerce recommends reserving EXW for trade without export and preferring FCA, which leaves export customs clearance to the seller. The choice must also take account of what the company actually does. In an ex-works sale, the Court of Cassation held that a seller named on the consignment note as the consignor, which “itself carries out the loading, wedging and securing of the goods sold, assumes responsibility for it and must answer, on the basis of contractual liability, for the damaging consequences of defective performance” (Cass. com., 5 July 2023, No. 21-21.115, our translation). That case came under French transport law, but it shows that a departure clause does not protect a seller that loads the goods itself. The firm therefore aligns the Incoterm, the named place and the actual allocation of logistics tasks.

That depends on the applicable law and on how they were incorporated into the contract, the customer having at least to have been able to know them and accept them before committing. Where they contain a jurisdiction clause, Article 25 of the Brussels I bis Regulation requires a writing, written confirmation, a form in accordance with the parties' practices or a usage of international trade. The Court of Cassation approved a court of appeal that had set aside the clause of a German seller, noting that “it had not been shown that the latter had been able, with normal diligence, to consult the general terms of sale in which the jurisdiction clause was inserted” (Cass. 1re civ., 7 May 2025, No. 23-22.972, our translation). The reference to the general terms was nonetheless in the accepted offer. The decision is unfavourable to a seller that relies on a mere mention without supplying the text. In practice, attach the terms to the offer or give a working link allowing them to be downloaded before the order. Where French law governs the formation of the contract, Article 1119 of the French Civil Code (Code civil) sets the same requirement that the general terms relied on be known and accepted.

Yes, where a practice has become established between the parties. Article 25 of the Brussels I bis Regulation allows a clause concluded in a form that accords with practices which the parties have established between themselves. In a dispute brought before the French courts, the court of appeal had held the clause designating the court of Bologna unenforceable against the buyer, because the clause was not mentioned on the invoices. The Court of Cassation quashed that judgment: the invoices issued over more than a year referred to the general terms, the buyer had accepted and paid them, and “Article 25(1)(b) does not require the invoice to refer expressly to that clause” (Cass. 1re civ., 28 May 2025, No. 23-21.628, our translation). The decision is unfavourable to the buyer, who will have to plead in Italy if the court to which the case is referred applies that solution. For an importing SME, the lesson is concrete. An invoice received and paid without reservation, where it refers to general terms, may end up binding the company. It is therefore necessary to ask for those terms, read them and challenge in writing any that are unsuitable from the first orders.

The answer depends on the text that governs the formation of the contract. If French law applies, Article 1119 of the Civil Code provides that where general terms relied on by each party conflict, the incompatible clauses have no effect, and that special terms prevail over general terms. If the Vienna Convention governs the sale, formation follows its own articles, and the court looks at what each party actually offered and accepted. In both cases, a negotiated and signed clause prevails over a cross-reference printed at the foot of a purchase order. The firm examines the order of the documents, the language used, the signatures and the practice followed in earlier orders. Where the two sets of terms designate different courts, the jurisdiction clause may fall away, and the court then determines its jurisdiction under the general rules, in particular the place of delivery provided for by the contract. The surest solution remains a signed framework contract that expressly excludes the other party's general terms.

Under the Vienna Convention, the buyer must examine the goods within as short a period as is practicable, and the examination may be deferred until arrival where the contract involves carriage (Article 38 of the Vienna Convention). The buyer must then give the seller notice of the lack of conformity, specifying its nature, within a reasonable time after it discovered it or ought to have discovered it, and at the latest within two years from the actual handing over of the goods, unless this is inconsistent with the duration of a contractual guarantee (Article 39 of the Vienna Convention). The seller cannot rely on these periods for a defect of which it knew or could not have been unaware and did not disclose (Article 40 of the Vienna Convention), and a buyer with a reasonable excuse for its delay keeps the right to a price reduction or to damages other than loss of profit (Article 44 of the Vienna Convention). The Court of Cassation applies these periods strictly. In a judgment unfavourable to the buyer, it quashed the decision that had held the buyer to be in time without examining whether it had discovered the defect before being sued itself by its own customer, or whether notice had been given within two years of handing over (Cass. com., 1 April 2026, No. 24-15.434). The reasonable time therefore does not necessarily start from the end customer's complaint. Keep the date of receipt, the inspection report and the written complaint. Certificates supplied by the seller may matter: the Court of Cassation held that the supply of type 3.1 B mill certificates, which guaranteed conformity with the specifications, “relieved the buyer, notwithstanding the anomalies in those documents, of checking the quality of the products sold” (Cass. com., 13 February 2019, No. 17-21.409, our translation).

Two different periods overlap. The first is the notice period under the Vienna Convention, at the latest two years after the actual handing over, subject to a longer contractual guarantee (Article 39 of the Vienna Convention). The Court of Cassation specifies that this period “is a period for giving notice of the lack of conformity and not a period for bringing an action” (our translation), and it rejected the plea of inadmissibility that a seller derived from it against its buyer's action (Cass. com., 26 October 2022, No. 20-22.528). The second is the period for bringing legal proceedings, which the Vienna Convention does not set. In a case where the New York Convention of 14 June 1974 on the limitation period in the international sale of goods applied, the Court of Cassation held that “the four-year limitation period provided for by the first of those texts runs from the date on which the goods were actually handed over to the buyer” (Cass. com., 1 April 2026, No. 24-15.434, our translation). It quashed the judgment that had made this period run from the summons received from the end customer. The text governing limitation therefore depends on the States concerned and on the applicable law. The firm determines it as soon as the defect is discovered, before the period has expired.

Yes. Article 1343-3 of the Civil Code sets the principle of payment in euros in France, but allows payment in another currency where the obligation arises from an international transaction. It also allows professionals to agree on payment in a foreign currency where the use of that currency is commonly accepted for the transaction concerned. The currency clause must distinguish the currency in which the price is expressed from the one in which it is paid, and state the rate used if a conversion is planned. It must also say who bears bank charges and the exchange-rate risk between the order and the due date. Under the Vienna Convention, unless another place is agreed, the buyer pays at the seller's place of business or at the place where the goods or documents are handed over where payment depends on it (Article 57 of the Vienna Convention). The place and the currency of payment should therefore be drafted together. Finally, a due date fixed at a precise date makes it easier to calculate the interest due for late payment, provided for by Article 78 of the Vienna Convention.

Both mechanisms protect the exporter, but differently. A documentary credit commits a bank to pay against presentation of compliant documents, independently of the sale contract. The Court of Cassation held, applying the uniform rules and practices of the International Chamber of Commerce, that a confirming bank which sets up the defence of legal set-off on account of a claim it holds against the beneficiary “is not relying on a non-documentary condition, but is honouring its payment obligation arising from the documentary credit” (Cass. com., 15 March 2023, No. 20-23.552, our translation). The decision is unfavourable to the exporter, which did not receive the funds because the bank applied them against a debt the exporter itself owed to it. An independent guarantee, governed in French law by Article 2321 of the French Civil Code (Code civil), obliges the guarantor to pay a sum on first demand or in the manner agreed, without raising defences arising from the guaranteed contract. The choice depends on the customer's country, the trust between the parties and the bank's cost. The firm checks that the documents required are consistent with the Incoterm and the shipping schedule, because a non-compliant document can delay payment.

The guarantor is not bound in the case of manifest abuse or fraud by the beneficiary, under Article 2321 of the Civil Code. The principal can therefore ask the urgent applications judge (juge des référés) to prohibit payment, provided that it shows an evident abuse and not a mere dispute over the contract. In a case decided in 2026, a guarantee covered a distribution contract of 2022; the beneficiary had called on it for sums due under a contract concluded in 2024. The Paris Court of Appeal held that “the independence of the guarantee protects the beneficiary against defences relating to the main contract, but it cannot have the effect of changing the extent or the subject matter of the guarantee” (CA Paris, pôle 1, ch. 2, 26 March 2026, No. 25/19167, our translation). It set aside the order and ordered the bank not to pay pending the judgment on the merits. That outcome turns on the precise subject matter of the guarantee. The text of the undertaking, the contract it refers to and the evidence of payments already made are therefore decisive. It is necessary to act before payment, because the independence of the guarantee makes later recovery more difficult.

It can protect the exporter, on precise conditions. Article 2367 of the Civil Code allows ownership of an asset to be retained until the price has been paid in full. Where the buyer is subject to insolvency proceedings opened in France, Article L. 624-16 of the French Commercial Code (Code de commerce) allows goods sold subject to retention of title to be reclaimed if they are still found in kind when the proceedings open. The clause must have been agreed in a writing made no later than the time of delivery, possibly in a writing governing a series of commercial transactions. A clause printed only on the invoice sent after shipment therefore risks not meeting that requirement. Where the goods are abroad, the law of the country where they are located may also come into play, and the firm checks this point before relying on the clause. Retention of title complements a bank guarantee without replacing it. In French insolvency proceedings, a reclaim may also cover goods incorporated into another asset and separable without damage, or fungible goods of the same nature and quality held on behalf of the debtor (Article L. 624-16 of the Commercial Code). If the buyer has resold the goods, the seller may reclaim the part of the resale price that had not been paid, settled or set off at the opening judgment (Article L. 624-18 of the Commercial Code).

In limited cases. The choice of a foreign law does not set aside overriding mandatory provisions, which Article 9 of the Rome I Regulation defines as provisions the respect for which is regarded as crucial for safeguarding a country's public interests. It also leaves in place the mandatory provisions of the country where all the other elements of the situation are located (Article 3(3) and (4) of the Rome I Regulation), as well as the public-policy exception of the forum, reserved for manifest incompatibilities (Article 21 of the Rome I Regulation). Outside those cases, the chosen law applies. A French supplier relied on former Article L. 442-6, I, 5° of the Commercial Code on the sudden termination of established commercial relationships, now found in Article L. 442-1 of the Commercial Code, against contracts governed by German law, concluded before 17 December 2009 and therefore governed by the 1980 Rome Convention. The Paris Court of Appeal refused to treat those rules as overriding mandatory provisions, on the ground that “they are aimed more at safeguarding the private interests of a party seeking compensation for harm linked to the termination of a private contract” (CA Paris, pôle 5, ch. 16, 2 July 2024, No. 21/17912, our translation). It held German law applicable, an outcome unfavourable to the supplier. That outcome does not settle the current regime: since 1 April 2023, Article L. 444-1 A of the Commercial Code declares these rules to be public policy for products or services marketed in France, subject to Union law and treaties. Before accepting its partner's law, an SME must therefore assess what that law provides in the event of termination or non-payment. The firm can propose a law clause limited to part of the contract, as Article 3 of the Rome I Regulation permits.

Rarely, if the contract provides nothing. The Vienna Convention exempts from liability a party that proves that its failure to perform was due to an impediment beyond its control, and that it could not reasonably have been expected to take the impediment into account at the time of conclusion of the contract, or to have avoided or overcome it or its consequences (Article 79 of the Vienna Convention). That exemption applies only for the duration of the impediment and leaves the other party all its rights other than to claim damages. The Court of Cassation refused this exemption to a buyer that had stopped ordering from its foreign manufacturer because its own customer required a different, cheaper part. It approved the court of appeal, which held that, “as a professional experienced in the practice of international markets, it was for it to provide for contractual mechanisms of guarantee or revision” (Cass. 1re civ., 30 June 2004, No. 01-15.964, our translation). The decision is unfavourable to the company that had committed itself without an adaptation clause. Protection is therefore built at the drafting stage: an indexation formula, a revision clause triggered by a threshold, an obligation to renegotiate, a limited duration for price commitments. If an imbalance arises nonetheless, a written and documented negotiation is better than a unilateral suspension of orders or deliveries, which would expose the company to damages calculated under Article 74 of the Vienna Convention.