Judge’s decision on the appointment of an expert: reversal and clarification of the case law

 

In cases where the law refers to article 1843-4 of the Civil Code to set the price conditions for the transfer of a partner’s corporate rights, the president of the court hearing a dispute may decide to appoint an expert to determine the value of the corporate rights transferred.

Such an expert may also be appointed by the president of the court when the articles of association provide for the transfer but the value of the transferred corporate rights is neither determined nor determinable.

Under article 1843-4, the president’s decision is “without appeal”.

The Cour de cassation has long considered that this absence of appeal applies to decisions appointing an expert as well as to those refusing to do so. It allowed for a derogation from this principle only in the case of excess of power committed by the judge.

On May 25, 2010, the Commercial Chamber of the Cour de cassation distinguished for the first time between the refusal and the acceptance of the judge to appoint an expert.

In two noteworthy decisions, it (i) reversed the case law on the possibility of appealing against a judge’s decision refusing to appoint an expert, and (ii) clarified the limits of the judge’s power to accept the appointment of an expert.

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