1. Decree no. 2025-660 of 18 July 2025[1] brought about a symbolic paradigm shift: by laying down the principle that “cases are prepared by agreement between the parties”[2], it makes court-led case management the exception and the agreement between lawyers the primary norm. To encourage this shift, “priority listing” is promised to parties who opt for party-led case management (instruction conventionnelle)[3]. The official discourse is one of consensualism and of making the participants in the proceedings more accountable. Legal scholars were quick to point out the weaknesses of the mechanism, noting that the circular presenting the decree and the templates proposed by the Conseil national des barreaux (French National Bar Council) tend to lay down the applicable rules without their binding nature, or even their legality, being clearly established[4].
2. It is possible to go further and to identify this reform for what it really is: not a step forward for consensualism, but an additional tool placed at the judge’s disposal to organise the preparation of the case. This reading extends an analysis developed by legal scholars with regard to procedural sanctions in general. As Guillaume Sansone showed in a doctoral thesis devoted to sanctions in civil procedure, these techniques must be understood as “means, at the legislature’s disposal, to meet judicial policy objectives”, tools of a “profound rationalisation of civil procedure, driven by concerns of procedural economy”[5]. Party-led case management forms part of this movement. It is not a concession made to the parties; it is an instrument of judicial organisation that the decree of 18 July 2025 entrusts to the judge under the guise of consensualism.
3. Party-led case management presupposes that parties in an adversarial position would be able (and would have an interest) to agree on how their dispute is to be prepared. This presupposition does not stand up well to scrutiny of ordinary litigation practice. In any dispute, the parties have conflicting procedural interests. The claimant wants a swift preparation of the case; the defendant may legitimately take advantage of time to negotiate on better terms, consolidate its defences or even defer a judgment it anticipates. Asking it to commit contractually to strict deadlines amounts to asking it to give up an advantage that the law in no way requires it to forgo.
4. This observation applies a fortiori to disputes involving several defendants or third parties joined to the proceedings. The difficulty is, moreover, a longstanding one: the participatory procedure agreement for pre-trial preparation (convention de procédure participative aux fins de mise en état), introduced by the Law of 18 November 2016, has not met with the expected success, despite several rounds of simplification. As early as 2012, legal scholars criticised the practice of collective protocols imposed on the parties at the first hearing as “contrary to the text and to the very logic of a timetable adapted contractually by the parties with, and after discussing it with, the judge”[6]. The formal simplification introduced by the 2025 decree does not resolve this fundamental problem: lighter formalities do not create a common interest where none exists.
5. It may be objected that the prospect of priority listing is a significant incentive. But the judge would still need to be able to guarantee this advantage in practice (about which legal scholars express the gravest doubts[7]) and all the parties would need to share a common interest in it. It should also be noted that not resorting to party-led case management must not result in any disguised penalty for the parties[8]. The real innovation of the 2025 decree therefore lies not in this symbolic incentive, but in the latitude it gives the judge, and in the solution it offers to a limit that case law had set against any attempt to contractualise procedure collectively.
I. Party-led case management as a tool of the judge’s office
A. The judge as “proposer”: a mechanism already tested in practice
6. If the parties do not spontaneously conclude a case management agreement (convention de mise en état), nothing prevents the judge from proposing its content to them. This practice is already established in several commercial courts: at special case management hearings, the judge responsible for preparing the case summons the lawyers, submits a procedural timetable to them and has them endorse this agreement by signature or by concurring submissions. The 2025 decree now gives this practice an explicit legal basis.
7. Article 129-2 of the French Code of Civil Procedure in no way requires the agreement to stem solely from the lawyers’ initiative[9]. It is sufficient for the parties to inform the judge of it, “in particular by means of concurring submissions or by sending a copy of the agreement”[10]. Nothing therefore prevents the judge from presenting a draft agreement himself or herself at a case management hearing, obtaining the formal agreement of the lawyers, and thereby bringing that agreement within the legal regime of simplified party-led case management.
8. The judge’s role then changes in nature: the judge no longer merely organises the preparation of the case by means of unilateral orders but co-constructs it with the parties within a contractual framework whose contours the judge has drawn, a practice reminiscent of the case management mechanisms found in English and American law. Legal scholars have also emphasised that the principle of cooperation, now codified in Article 21 of the French Code of Civil Procedure, implies that the judge and the parties jointly determine the most appropriate way of handling each dispute[11].
B. The rules of civil procedure: partly default rules
9. The second point of interest of party-led case management lies in what it reveals about the nature of the rules of civil procedure. By allowing the parties to adjust their arrangements by agreement[12], the 2025 decree implicitly accepts that these rules are not all a matter of procedural public policy. Legal scholars have confirmed this unambiguously: “civil procedure, which is not a matter of public policy, is at the free disposal of the parties”[13]. The significance of this recognition is considerable, even though it must immediately be qualified by the limits that the text itself lays down.
10. First, Article 128(1) of the French Code of Civil Procedure limits the option of defining the points of law by agreement to “rights of which the parties may freely dispose”, thereby excluding non-disposable rights. Second, the agreement must respect the guiding principles of the proceedings, whose inviolability is reaffirmed by Article 127. These limits define the scope of permissible adjustments: within it, procedural rules are default rules; beyond it, they remain mandatory.
11. Accordingly, an agreement proposed by the judge and formally accepted by the parties may lawfully provide for novel arrangements for preparing the case: deadlines differentiated according to each party’s procedural position, obligations to disclose specific documents in advance, mechanisms requiring all claims to be set out in the first written submissions. On the question of sanctions, however, caution is called for. Article 128(2) of the French Code of Civil Procedure does allow the judge to exclude from the proceedings claims submitted after the agreed date, but subject to two cumulative conditions that exactly mirror those of Article 446-2: the absence of a legitimate reason and prejudice to the rights of the defence[14]. The agreement cannot therefore create a purely automatic inadmissibility, based solely on the agreed deadline being exceeded and without any judicial assessment of those conditions.
What the agreement can nevertheless change is the context in which those conditions are assessed: a deadline freely accepted by all the parties when the agreement was concluded makes it more difficult for the defaulting party to rely on a legitimate reason for the delay or to show that it has not prejudiced the other party’s rights of defence. While the agreement does not remove the statutory conditions, it substantially shapes the judge’s sovereign assessment of them.
12. To appreciate the full scope of this mechanism, a comparison must be drawn with the case law on protocols concluded between a court and a Bar. These “collective agreements on civil procedure”[15], setting deadlines and arrangements for exchanging written submissions, proliferated from the 2000s onwards. Their capacity to bind individual parties has always been questionable. Legal scholars identified two categories to be carefully distinguished. The first, which raises no difficulty, comprises protocols that merely “repeat the provisions set out in the Code of Civil Procedure, simply placing them in the practical setting of the court concerned”: such instruments “carry no sanctions other than those of the Code of Civil Procedure”[16]. The second, more dangerous, comprises agreements that create new procedural constraints extra legem and attach a sanction of inadmissibility to their breach. Some courts of appeal imposed this sanction solely on the basis of a protocol, before being overruled. As Guillaume Sansone has shown: “no agreement, whether national or local, can contravene a procedural provision or attach to its requirements a sanction concerning the validity of the act as defined by a procedural rule”[17].
13. The French Supreme Court (Cour de cassation) confirmed these limits in a judgment of 19 October 2017[18]. In that case, a Court of Appeal had declared an appeal inadmissible on the ground that the filing of the notice of appeal with the court registry did not comply with the requirements of a procedural protocol concluded between the court and the Nantes Bar. The judgment was quashed: the validity of the electronic transmission “is to be assessed solely in the light of Articles 748-1 et seq. of the Code of Civil Procedure and of the order adopted pursuant to those articles”. A collective protocol, even one signed by the institutional representatives of the profession, cannot substitute its own formal requirements for those that positive law alone is competent to lay down.
14. Party-led case management removes precisely this obstacle. By having the parties (or their duly instructed lawyers) formally accept the case management agreement at a dedicated hearing, and by recording that agreement in concurring submissions, the judge creates a meeting of minds that is directly binding on each of them. What was merely an institutional protocol with no individual effect becomes a legally binding agreement, with the binding force that Article 1103 of the French Civil Code attaches to lawfully formed contracts[19]. Case law had deprived the collective instrument of effect by refusing to allow it to create an inadmissibility by agreement; the 2025 reform gives the individual agreement the capacity to substantially shape the conditions under which inadmissibility is assessed, within the limits maintained by Article 128(2).
II. The inherent limits of the mechanism
A. Statutory safeguards
15. The extension of the judge’s powers made possible by party-led case management is not without safeguards. Article 129-2, paragraph 3, of the French Code of Civil Procedure expressly reserves to the judge the power to resume court-led case management “if the agreement does not make it possible to preserve the guiding principles of the proceedings or the right to a fair trial”[20]. No contractual clause may derogate from the requirements of the adversarial principle, equality of arms or the right to a judgment within a reasonable time. The case management agreement remains an instrument serving a fair trial, not an instrument for circumventing its fundamental guarantees.
16. Vigilance is also required as to the quality of the parties’ consent. Where it is the judge who proposes the content of the agreement, the lawyers may find themselves under implicit pressure. This difficulty is not insurmountable (the transparency of the hearing and the lawyer’s professional independence are sufficient safeguards), but it requires the agreement to be genuinely discussed and not imposed in practice.
B. The open questions
17. A procedural risk specific to conventional case management (instruction conventionnelle) also deserves mention, relating to the rules on lapse of proceedings for want of prosecution (péremption d’instance). While the conclusion of the agreement interrupts the lapse period until its term[21], commentators have noted that, according to the circular presenting the decree, the judge has the power to decide retroactively that this period continued to run if the parties had no genuine intention of implementing the agreement or used it for dilatory purposes[22]. This risk of retroactive loss of the benefit of the interruption, whose conditions of application remain uncertain, represents a serious procedural hazard for parties who entered in good faith into a conventional case management process that did not succeed.
18. Before the Court of Appeal, the reform raises further uncertainties as to how conventional case management interacts with the Magendie decree. Although Article 915-3 of the French Code of Civil Procedure does provide that the Magendie time limits are interrupted where the conclusion of a simplified case management agreement is evidenced, this suspension does not deprive the Magendie decree of its substance: the principle of temporal concentration of claims laid down in Article 915-2, paragraph 2, is merely suspended, not abolished, and the devolutive effect of the appeal remains defined by the first submissions filed within the agreed time limits that replace the statutory ones[23]. Simplified conventional case management is therefore not, on appeal, a “procedural paradise free from all constraints”. Moreover, the 2025 decree failed to amend Article 905, paragraph 2, of the Code of Civil Procedure, which invites lawyers to use only the participatory procedure agreement and ignores simplified conventional case management, a gap that weakens the appeal of the reform before the Courts of Appeal[24].
19. Finally, the very question of the sources of conventional procedure remains open. The circular of 19 July 2025 and the model documents proposed by the Conseil national des barreaux (French National Bar Council) tend, in practice, to set the rules that will govern the case management agreement. In theory, as commentators point out, this is unsatisfactory: the binding nature and the lawfulness of these instruments are uncertain[25]. Yet it is to them that practitioners and courts will refer, in the absence of more precise texts. This illustrates a long-standing trend whereby judicial practice creates procedural law “alongside, and sometimes on the margins of, the codes”[26].
20. Conventional case management is not the consensual revolution its designers envisaged. In the reality of civil and commercial litigation, parties will not spontaneously agree to impose additional procedural constraints on themselves. But by giving the judge the option of proposing an agreement that the parties formally accept, the 2025 decree provides the judge with a tool of a dual nature: first, to organise the conduct of the case contractually, at last giving binding individual force to procedural protocols that the case law had long deprived of any autonomous power of sanction; and second, to exert a substantial influence, within the limits preserved by Article 128, 2°, on the court’s assessment of the statutory conditions for striking out late submissions. These ambitions unfold within a fragile normative framework, in which circulars and model documents fill the silences of the text. This is perhaps the deepest limitation of the mechanism: conventional case management is less a rule than the promise of a rule, whose definitive contours will depend on the case law that the reform, in force since 1st September 2025, has not yet generated.
[1]Decree No. 2025-660 of 18 July 2025 reforming conventional case management and recodifying amicable dispute resolution methods, JO 19 July 2025; in force since 1st September 2025.
[2]C. proc. civ., art. 127, al. 1er, as amended by Decree No. 2025-660: “Cases are prepared conventionally by the parties.”
[3]C. proc. civ., art. 127, al. 2.
[4]H. Croze, “Trouble dans les sources de la procédure civile : à propos des conventions relatives à la mise en état”, Procédures No. 2, Feb. 2026, repère 2; Ph. Gerbay, “La mise en état par instruction conventionnelle simplifiée confrontée au décret Magendie”, JCP G No. 49, 8 Dec. 2025, act. 1372; L. De Chanville, C. Douté and N. Hoffschir, “Le renouveau de l’instruction conventionnelle et des modes amiables de résolution des différends”, Procédures No. 11, Nov. 2025, étude 7.
[5]G. Sansone, Les sanctions en procédure civile, doctoral thesis, Aix-Marseille, 2019, supervised by E. Putman, nos 8 et seq., citing C. Chainais, “Les sanctions en procédure civile. À la recherche d’un clavier bien tempéré”, in La sanction, entre technique et politique, 2012, Dalloz, p. 357 et seq., esp. No. 93, p. 398. See also M. Mekki, “Considérations sociologiques sur le droit des sanctions”, in D. Fenouillet and C. Chainais (eds.), La sanction en droit contemporain, vol. 1, 2012, Dalloz, No. 9, p. 36: “Sanctions are a tool serving a policy.”
[6]C. Bléry, “De la contractualisation à la réglementation unilatérale : dérive des protocoles de la mise en état”, Procédures No. 2, Feb. 2012, alerte 5, No. 4, citing G. Huvelin.
[7]Ph. Gerbay, op. cit.: the Ministry of Justice is “floundering” in setting up priority scheduling of hearings, with the circular leaving it to the courts to define the arrangements. Adde S. Amrani-Mekki, “L’instruction conventionnelle après le décret du 18 juillet 2025”, Gaz. Pal. 22 July 2025, No. GPL480l3, esp. No. 2.
[8]S. Amrani-Mekki, op. cit., No. 2.
[9]C. proc. civ., art. 129-1: “Agreements concerning the preparation of the case in simplified form may be concluded between the parties’ lawyers.”
[10]C. proc. civ., art. 129-2, al. 1er.
[11]S. Amrani-Mekki, op. cit., No. 1, commenting on the new Art. 21 CPC: “It is part of the judge’s role to conciliate the parties and to determine with them the dispute resolution method best suited to the case.”
[12]C. proc. civ., art. 128.
[13]S. Amrani-Mekki, op. cit., introduction. To the same effect, Lamy, Code de procédure civile commenté, under Art. 128, 2025 ed.: the agreement may only concern rights that the parties are free to dispose of (CPC, Art. 128, 1°), to the exclusion of non-disposable rights.
[14]C. proc. civ., art. 128, 2° in fine. The wording is identical to that of Art. 446-2, al. 4 CPC. To this effect, S. Amrani-Mekki, op. cit., No. 3: the agreement builds “a conventional procedure sanctioned by the court” in which the judge “will assess the legitimate reason and respect for the rights of the defence”.
[15]L. Cadiet and E. Jeuland, Droit judiciaire privé, LexisNexis, 7th ed., 2011, No. 28, cited by G. Sansone, thesis cited above, No. 424.
[16]L. Cadiet, “Les pouvoirs du juge dans le cours de la procédure civile et de la procédure pénale”, Cahiers de la justice 2013/3, p. 63, esp. p. 68, cited by G. Sansone, thesis cited above, No. 425.
[17]G. Sansone, thesis cited above, No. 425, citing the opinion of First Advocate General P. Mucchielli in Cass. avis, 9 Sept. 2013, No. 13-70005, Bull. avis, No. 10, esp. p. 12. To the same effect, see H. Croze, note under CA Reims, 27 Nov. 2012, No. 12/02121: JCP G 2013, 1394.
[18]Cass. civ. 2e, 19 October 2017, No. 16-24.234.
[19]C. civ., art. 1103: “Contracts lawfully entered into have the force of law for those who made them.”
[20]C. proc. civ., art. 129-2, al. 3. This decision is a measure of judicial administration (CPC, Art. 537).
[21]C. proc. civ., art. 129-3, 1°.
[22]Lamy, Code de procédure civile commenté, under Art. 129-3, 2025 ed.
[23]Ph. Gerbay, op. cit. On the interruption of the Magendie time limits, see C. proc. civ., art. 915-3.
[24]Ph. Gerbay, op. cit.: “an unfortunate oversight that does not bode well for the success of the reform”.
[25]H. Croze, op. cit.: “their binding nature and even their lawfulness are doubtful”.
[26]S. Guinchard, F. Ferrand and C. Chainais, Procédure civile, Dalloz, 30th ed., 2010, No. 59a, cited by C. Bléry, op. cit., No. 1.
